S. C. AGRAWAL, J. - (1.) PEMARAM, the petitioner in this writ petition filed under Article 226 of the Constitution of India, was originally employed as Research Scholar in Geology in the Central Arid Zone Research Institute, Jodhpur. On 13th May, 1977, he joined the services of the Government of Rajasthan as Technical Assistant (Hydrogeology ). Subsequently, he was selected by the Rajasthan Public Service Commission (hereinafter referred to as, the Commission) for substantive appointment on the post of Technical Assistant (Hydrogeology) against the direct recruitment quota of 1977. A Technical Assistant (Hydrogeology) is eligible for appointment on the post of Junior Hydrogeologist. The post of Junior Hydrogeologist forms part of the Rajasthan Ground Water Board Service (hereinafter referred to as "the Service") and the recruitment to the posts in the service as well as conditions of services of personnel appointed to the service are governed by the Rajasthan Ground Water Board Service Rules, 1969 (hereinafter referred to as "the Rules") Under the Rules the appointment on the post of Junior Hydrogeologist is to be made 25% by promotion and 75% by direct recruitment. Rule 9 of the Rules requires the appointing authority to determine in each year the number of vacancies anticipated during the year and the number of persons likely to be recruited by each method. In the year 1977, the State Government determined that 7 vacancies on the post of Junior Hydrogeologist were to be filled by direct recruitment and a requisition dated 24th October, 1977, was sent by the State Government to the Commission for the purpose of selecting suitable persons for filling the said posts. After the receipt of the said requisition from the State Government the Commission issued an advertisement dated 15th December, 1977, whereby applications were invited for the 7 posts of Junior Hydrogeologists in the Ground Water Department. The last date for submission of applications, as mentioned in the said advertisement was 4th February, 1978. Atleast two year's experience in hydrogeological studies has been prescribed as an essential qualification under the Rules for appointment on the post of Junior Hydrogeologist by direct recruitment. Since the petitioner did not possess the said experience on 4th February, 1978 he could not submit his application in response to the above advertisement issued by the Commission. For the purpose of making selection on the basis of applications received in response to the advertisement dated 15th December, 1977), the Commission interviewed the applicants on 11th and 12th October, 1979. In the meanwhile on 5th October, 1979 the petitioner filed this writ petition wherein it has been prayed that an appropriate writ, order or direction be issued calling upon the respondents, namely the State Government and the Commission, to advertise the vacancies which have become available after the advertisement dated 15th December, 1977 had been issued and restraining the respondents from making any selection and appointment against all the vacancies on the post of Junior Hydrogeologist or against more than 7 vacancies on the post of Junior Hydrogeologist unless and until the same are re-advertised or the candidates who have become eligible subsequent to 4th February, 1978 are also given an opportunity to apply for these posts and to quash any selection or appointment made during the pendency of the writ petition on the posts of Junior Hydrogeologist.
(2.) IN the writ petition aforesaid the case of the petitioner is that subsequent to the issue of the advertisement dated 5th December, 1977. a number of vacancies on the post of Junior Hydrogeologist have become available as would be apparent from the fact that by orders dated 3rd November, 1978 and 7th July, 1979, 15 persons have been appointed on the post of Junior Hydrogeologist on an urgent temporary basis. According to the petitioner there were 32 vacancies out of which 27 vacancies have already been filled on urgent temporary basis and five posts were lying vacant and that out of those 32 vacancies, 24 posts were required to be filled by direct recruitment. The case of the petitioner is further that the petitioner become eligible for appointment on the post of Junior Hydrogeologist by direct recruitment in September, 1978 or in any event on 13th May, 1979 and that if the aforesaid vacancies were filled on the basis of the selection made by the Public Service Commission from amongst persons who have submitted their applications in pursuance to advertisement dated 15th December, 1977 the petitioner would be denied the right to be considered for appointment on the posts which fell vacant after the petitioner become eligible for appointment on the post of Junior Hydrogeologist and the aforesaid action would be violative of the fundamental rights of the petitioner guaranteed under Article 14 and 16 of the Constitution of INdia. The writ petition has been contested by the respondents and a reply to the writ petition has been filed on their behalf. In the said reply it has been stated that due to one or the other reasons the Commission could not hold the interview for the 7 posts of Junior Hydrogeologist till the middle of October, 1979 and that the Commission had interviewed the candidates for the said post on October 11/12, 1979. In the said reply it has been admitted that by October, 1979 some more posts of Junior Hydrogeologist had become available in the Ground Water Department Reliance has, however, been placed on the proviso to Rule 16 of the Rules, which provides that while selecting candidates for the vacancies so advertised, the Commission may, if intimation of additional requirement not exceeding 5% of the advertised vacancies is received by them before selection, also select such suitable persons to meet such additional requirement. The respondents have submitted that in addition to making selection for the 7 posts of Junior Hydrogeologists which were advertised the Commission could make selection for 4 more posts. According to the respondents the Commission has forwarded a list of only 7 suitable persons for the 7 posts of Junior Hydrogeologists and that the Commission has also prepared a list of suitable candidates on the reserve list. It may be observed that 7 vacancies which were advertised by the Public Service Commission on 15th December, 1977 have been filed on the basis of the selection made by the Commission but in view of the stay order passed by this Court the additional vacancies have not been filled on the basis of the impugned selection made by the Commission. I have heard Shri M. R. Calla, the learned counsel for the petitioner and the learned Assistant Govt. Advocate. The submission of Shri Calla was that in view of Rule 9 of the Rules it is incumbent upon the appointing authority to determine the number of vacancies each year and to further determine the number of persons likely to be recruited by each method- and that once the aforesaid determination has been made and the requisition for making selection for filling up the vacancies on which appointment is to be made by direct recruitment, is sent to the Commission, it is incumbent upon the Commission to complete the process of selection and make its recommendation before the expiry of the period of 12 months from the date of determination of the vacancies and in case the Commission fails to make its recommendation before the expiry of the period of 12 months from the date of determination of the vacancies, the requisition sent by the State Government to the Commission should be treated to have lapsed and a fresh determination of the vacancies must be made by the appointing authority and a fresh requisition on the basis of the aforesaid determination should be sent to the Commission According Shri Calla, the requisition which was sent by the State Government on 24th October, 1977. could be effective only till 24th October, 1978 and since the Commission did not make the selection in pursuance of the aforesaid requisition till October 24, 1978, the said requisition should be deemed to have lapsed and it was not open to the Commission to make its recommendations on the basis of the aforesaid requisition after 24th October, 1978 and that the appointing authority ought to have re-determined the vacancies and should have sent a fresh requisition to the Commission and the Commission should have invited fresh applications on the basis of the aforesaid fresh requisition. Shri Calla has submitted that the procedure that has been adopted by the Commission in making selection in October, 1979, on the basis of the advertisement dated 15tb December, 1977, has resulted in denial of the right to equality of opportunity in the matter of employment to the petitioner inasmuch as on the date of the aforesaid selection i. e. , in October, 1979, the petitioner was eligible for appointment on the post of Junior Hydrogeologist but as he was not eligible for appointment to the said post on 4th February, 1978, the last date for submission of applications in pursuance of the advertisement dated 15th December, 1977, the petitioner could not submit his application at that time and thus he has been deprived of the right to be considered for appointment on the post of Junior Hydrogeologist.
(3.) THE learned Assistant Government Advocate has, on the other hand, submitted that there is no provision in the Rules which requires the Commission to send its recommendations within 12 months of the date of the requisition sent by the State Govt. and that in the absence of such a provision in the Rules, it is not permissible to read such an obligation on the part of the Commission to send its recommendations within 12 months from the date of the requisition. THE learned Assistant Government Advocate has further submitted that the selection that has been made by the Commission for the 7 vacancies on the basis of the requisition sent by the State Government on 24th October, 1977, cannot be held to be bad because, at the time the said vacancies had arisen, the petitioner was admittedly not eligible for being appointed on the post of Junior Hydrogeologist by direct recruitment. THE learned Assistant Government Advocate has also submitted that in view of the proviso to Rule 16 of the Rules, it was permissible for the Commission to have sent its recommendations for additional posts not exceeding 50 per cent of the advertised vacancies and that it is open to the State Government to make appointments on 4 additional posts of Junior Hydrogeologists on the basis of the aforesaid recommendations of the Commission. The right to equality of opportunity in the matter of employment and appointment guaranteed under Art. 16 of the Constitution postulates that every person who is eligible for appointment to a particular post at the time of appointment should be afforded an opportunity to submit his application so that he may be considered for the purpose of appointment As the process of selection amongst the various applicants for a particular post has to commence after the applications have been received, there is bound to be a gap between the last date for submission of the application and the date of appointment. Such a time gap is necessary for administrative convenience. But, it must be such as may be considered reasonable for completing the process of selection. If the aforesaid time-gap between the last date for submission of applications and the date of selection and/or appointment becomes unduly long the result would be that the persons who were not eligible for appointment to the post on the last date for submission of applications and became eligible thereafter, but before the date of selection and/or appointment, would be deprived of their right to be considered for the post and they would be denied their right to equality guaranteed under Article 16 of the Constitution If due to some reason it is not possible to make selection and/or appointment within a reasonable period after the expiry of the last date prescribed for submission of applications, it would be in consonance with the principle of equality of opportunity guaranteed under Article 16 of the Constitution that the appointing authority invites the applications afresh so that persons who became eligible to apply in the intervening period may also be able to apply. In this context, reference may be made to the decision of the Mysore High Court in N. Srinath vs. State of Mysore (1 ). In the said case, the Depart-mental Promotion Committee which had met in 1964 for making selection for promotion to the post of Deputy Director from amongst persons holding the posts of Assistant Director, had prepared a list containing a larger number of persons than the vacancies that were available at that time and on the basis of the aforesaid selection, promotions were made on vacancies which arose in 1966 and later. The aforesaid promotions were challenged by the persons who were not eligible for promotion in 1964, but who had become eligible for promotion at the time when the vacancies arose. A Division Bench of the Mysore High Court set aside the said promotions and held that it was essential from the point of view of Constitutional propriety and the protection of the rights of Government servants that the case for promotion should be considered in respect of or in relation to vacancies which were actually existing at the time of consideration or may be expected to arise within a reasonably short period. In my view, the aforesaid principle would be equally applicable in the matter of appointment by direct recruitment. ;