NAOLEKAR, J. - (1.) FACTS, not in dispute, are that the Rajasthan Public Service Commission (for short `the RPSC') advertised seventeen posts of Agriculture Research Officer (Horticulture) by issuance of an advertisement dated 27. 2. 1996. Screening test was conducted and the candidates who qualified the screening test were called for interview. After screening test and interview, a list of selected candidates was prepared. By letter dated 6. 1. 1997 the petitioner was informed that his name found place at Serial No. 2 in the reserve list. The list of selected 17 candidates was sent by the RPSC to the State Government on 21. 12. 1996 and as a consequence thereof seventeen candidates were offered appointment by the Government. Out of seventeen candidates, two candidates, namely, Sarva Shri Gopal Lal, who was at serial No. 3 in the list of selected candidates, and R. S. Meena, who was at serial No. 16 of the list of selected candidates, did not join and thus there were two vacancies available to be filled in from the select list.
(2.) THE State Government sent a requisition to the RPSC on 17. 6. 1997 for these two posts. Similarly as there was further requirement, additional requisition was sent for three candidates on 20. 6. 1997. Both the requisitions were received in the Office of RPSC on or before 20. 6. 1997. THE RPSC sent two names to the Govt. in lieu of the requisition sent on 17. 6. 1997 for two vacancies; one from general category and the other from reserved category. As regards requisition sent by the Government for three vacancies on 20. 6. 1997, the RPSC did not sent the name but raised queries with regard to the categorization of the vacancies vide its letter dated 20. 6. 1997. THE State Government, thereafter, sent a communication to the RPSC on 15. 9. 1997 making clarification regarding the requisition sent of vacancies, informing that Shri Hem Raj Meena, whose names was sent from the reserve list by the RPSC to the Govt. for appointment against the vacancy occurred on account of non-joining of duties by Shri Ram Swaroop Meena in time and cancellation of his appointment order, could not be appointed as Shri Ram Swaroop Meena has filed a writ petition in the Rajasthan High Court against the cancellation of his appointment order and the stay order has been issued by the Court for not filling up the vacancy. THE other candidate Shri Mool Chand Jain by a letter dated 10. 9. 1997 has withdrawn his name and said that some other candidate may be given appointment in his place and, therefore, name of some other candidate of general category may be sent who stand in the merit list after Mool Chand Jain. In spite of the requisition received in the Office of the RPSC in time, the RPSC did not send the name of the candidates who were in the reserve list, as desired by the Government. THE RPSC informed the State Government by its letter dated 1. 10. 1997 that since six months' period has been elapsed on 20. 6. 1997, the reserve list could not be made operative as provided under Rule 22 of the Rajasthan Agriculture Service Rules, 1960 and, therefore, no name could be sent from the reserve list. THE State Government clarified its position saying that the requisition for two posts was made on 17. 6. 1997 and for three posts on 20. 6. 1997 which was made within six months' period and, therefore, the names could have been sent of the candidates who are in the reserve list. As no steps were taken by the RPSC and consequent thereof no appointment made, the present writ petition is filed by the petitioner who was at No. 2 in the reserve list. It is submitted by the learned counsel appearing on behalf of the petitioner that when the requisition was sent within the period of six months for sending the names of two candidates on 17. 6. 1997, and out of two candidates who have been recommended one was not willing to join, the RPSC should have sent the names of the next candidates from the merit of the reserve list namely the petitioner. Apart from this, the requisition of the State Government dated 20. 6. 1997 being within the period of six months from the date the select list was sent to the State Government, the RPSC should have sent the names of three candidates for appointment and in this view of the matter the RPSC has failed in its duties in not sending the names from the reserve list for the posts to be filled in by the State Government. On the other hand, it is submitted by the learned counsel appearing on behalf of the RPSC that the reserve list is operative for six months only from 21. 12. 1996 the date on which the select list was sent to the State Government. Once the names could not be sent by 20. 6. 1997 by the RPSC, it was not permissible for the RPSC to have sent the names thereafter. The requisition made by the State Government in regard to three vacancies would fall outside the advertised vacancies and thus in the absence of any specific reason the posts could not be filled in by the State. Rule 22 of the Rules of 1960 reads as under:- "22. Recommendations of the Commission:- The Commission shall thereafter prepare a list of the candidates whom they consider suitable for appointment to the post or posts concerned, arranged in order of preference and forward the same to Government: Provided that the Commission, may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the reserve list. The names of such candidates may, on requisition, be recommended in the order of merit to the Government within six months from the date on which the original list is forwarded by the Commission to the Government. " Under Rule 22 of the Rules of 1960 the RPSC is required to prepare a list of candidates in pursuance of the selection process, to whom they consider suitable for the post advertised, and it to be arranged in the order of preference. The same is required to be forwarded to the Government. The proviso to the Rule 22 of the Rules of 1960 lays down that the RPSC may, to the extent of 50% of the advertised vacancies, keep names of suitable candidates on the reserve list and names of such candidates may, on requisition, be recommended in the order of merit within six months of the date on which the original list is forwarded by the RPSC to the Government. It appears that the duties of the RPSC is confined, to prepare a list of selected candidates for advertised vacancies in the order of merit according to the marks obtained by them and then to forward the names of the candidates who are in the select list, to the Government for their appointment on the post advertised. Under the proviso, the life of the reserve list is for six months and if requisition is made by the Government within that period the RPSC has to recommend the names of candidates. It is for the Government to find out whether the vacancies occurred within the period of six months from the date on which the select list is sent to the Government and whether the appointment is to be made or not. The RPSC cannot refuse sending of the names of candidates for the posts for which requisition is made, in order of merit, on the ground, that when the names could be sent to the Government the period of six months has expired and reserved list do not exists. The requirement under the proviso is that the Government has to make a requisition within a period of six months from the date when the select list was sent by the RPSC to the Government, and not sending of the names by the RPSC within the period of six months. The RPSC enjoins authority and duty to select candidates on merit basis and to prepare select list, from which appointments shall be made on advertised vacancies and then to prepare reserved list to meet the contingency if any of the candidates from select list does not join or resignes his post, and in exceptional circumstances, to provide candidates from reserve list, for the vacancies occurred after the advertisement was issued for posts. It is not the job of RPSC to scrutinize or to find as to whether vacancy has really occurred on account of not joining of select list candidates, or whether such vacancy can be legally filled from the candidates of reserved list. The RPSC under the Rules can only see whether requisition from the Government is received by it during the existence of the select list. Once the requisition by the Government is received by the RPSC within time i. e. during the subsistence of reserved list, the RPSC has to send names of the candidates to Government from reserved list, time taken by the RPSC for the said purpose is immaterial, the authority to appoint being vested with the State Government. On 17. 6. 1997 the State Govt. sent requisition for two names and thereafter on 20. 6. 1997 requisition was sent for three candidates. I shall first consider the question whether the petitioner can claim the appointment to the post under the requisition sent by the Govt. on 20. 6. 1997. Admittedly, the advertisement was issued on 22. 2. 1996 for filling in 17 posts of Agriculture Research Officer (Horticulture) and the RPSC, after the selection process, selected 17 candidates and the select list of 17 candidates was sent to the Government. Appointments were also issued to those 17 candidates, out of them 2 did not join and, therefore, a requisition was sent to the RPSC for sending two names from reserve list. Similarly, names of three candidates for the vacancies occurred subsequently, were requisitioned on 20. 6. 1997 from the reserve list. In Gujarat State Dy. Executive Engineers Association vs. State of Gujarat & Ors. (1), it has been held by the Apex Court that a waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. In the case reported in State of Bihar and Another vs. Madan Mohan Singh & Ors. (2), a question arose whether after appointment of 32 candidates as per advertisement more persons could be appointed from waiting list. The Supreme Court held that when 32 advertised vacancies were filled up, the process of selection of 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up of other vacancies, it would amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and the selection process. To fill up other vacancies a fresh advertisement has to be issued. In Madan Lal & Ors. vs. State of Jammu & Kashmir & Ors. (3), it has been held by the Apex Court that the advertised vacancies only can be filled up from the reserve list and the actual appointments to the post have to be confined to the posts of recruitment to which the requisition is sent by the Government. In Prem Singh vs. Haryana State Electricity Board (4), the Apex Court has laid down the law that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. It is further said that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Thus, the verdict of the Supreme Court clearly points out that the advertised vacancies only can be filled up from the select list or the reserve list and it is only in the exceptional circumstances the normal rule can be deviated for the reasons given and the appointments can be given on the post which fall vacant after the advertisement was issued. Similar view was taken by the Apex Court in the matter of Surendra Singh & Ors. vs. State of Punjab & Ors. (5), wherein it has been said that the waiting list cannot be used as a perennial source of recruitment for filling up the vacancies not advertised. The candidates in waiting list have no vested right to be appointed except to a limited extent that a candidate selected against the advertisement vacancy did not join for some reason and the waiting list is still operative. The candidate included in the waiting list cannot claim appointment on the ground that the vacancies were not worked out properly. It is improper exercise of power to make appointment over and above the advertised posts. It is only in a rare and exceptional circumstance and in emergent situation that this rule can be deviated from.
(3.) FROM the aforesaid decisions of the Supreme Court and on interpretation of Rule 22 of the Rules of 1960 along with other relevant provisions of the Rules of 1960 the following proposition of law emerges:- (i) That the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. The State cannot make more appointments than the number of advertised posts, the State can deviate from the advertised posts and make appointment on a post falling vacant thereafter in exceptional circumstances only, that too by taking policy decision in that behalf. (ii) Selection process is complete as soon as the appointments are made on advertised posts and no vacancy arises due to non joining of or resignation etc. of selected candidates within the period the reserved list is to operate. (iii) A candidate in a reserved list, in order of merit, has a right to claim that he may be appointed if one or other selected candidate has not joined or resigned etc. and the reserved list is operative at that time. But such an appointment cannot be claimed as a matter of right, by a candidate in reserved list, on the vacancy which is not advertised and requisitioned after advertisement. (iv) That under Rule 22 of the Rules of 1960 the RPSC is bound to sent names of the candidates for the vacancies which are requisitioned by the State Government, from the reserved list prepared by the RPSC, if such requisition is made during the existence of the reserved list that is the date the select list is sent to the Government till the expiry of six months thereafter. It is for the Government to decide, whether vacancy can be filled up, from the names sent by the RPSC. (v) The Government can make appointment on the post advertised but not filled up from the select list for some cause, from reserve list, if such vacancy arises and the requisition is made during the subsistence of the reserved list. If the vacancy arises after reserved list has lapsed the Government has no authority or jurisdiction to make appointment from the reserved list. In view of the aforesaid principle the petitioner clearly does not have any right to claim appointment against the vacancies which were occurred subsequent to the advertisement and were not part of the advertised vacancies for which the requisition was sent by the Government to the RPSC on 20. 6. 1997 simply because he was in the reserve list prepared by the RPSC. Now the question is whether petitioner can be considered and appointed in pursuance of the requisition sent by the Government on 17. 6. 1997? It has come on record that two persons, namely, Sarva Shri Gopal Lal Choudhary and R. S. Meena whose names appeared in the select list did not join the duties and, therefore, the RPSC sent names of two persons from the reserve list. The post of Shri R. S. Meena has been kept vacant under the orders of the Court whereas Shri Mool Chand Jain did not join and has informed the RPSC to that effect by his letter dated 10. 9. 1997. When Shri Mool Chand Jain has informed the Government on 10. 9. 1997 about his inability to join the post, the vacancy occurred but by that time the reserve list has expired and, therefore, cannot be made operative for filling up the vacancies even though the vacancy is from the advertised post. If the cause for filling up the vacancy accrued when the reserved list was operative and the requisition was made by the Government within the period of six months, then the candidates from reserved list would be entitled for appointment on the advertised post although the RPSC recommends the name after the expiry of six months. In the present case the cause for filling up the vacancy has arisen on 10. 9. 1997 when Shri Mool Chand Jain has refused to join, the reserved list had already expired and, therefore, could not be made operative for filling up the advertised post. ;