KUMAR, CJ. - (1.) BY this writ petition filed under Article 226 of the Constitution of India, the petitioner has sought a direction to appoint her to the post of Additional district & Sessions Judge in the Rajasthan High Court Judicial Service (For short hereinafter referred to as "rhjs" ).
(2.) BRIEFLY the facts are that the petitioner is enrolled as an Advocate with the Rajasthan Bar Council. In the year 1992, the Rajasthan High Court issued an advertisement for direct recruitment to 22 posts in RHJS. Out of these 22 posts, 5 posts were reserved for women candidates. Some posts were reserved for Scheduled Caste/scheduled Tribe and other backward class candidates. The petitioner applied in the capacity of a Scheduled Caste candidate. A written test for screening of the candidates was held on 06. 8. 2000. The petitioner qualified the said test. She also appeared for interview thereafter. On 24. 4. 2001, the petitioner received a letter from the Deputy Secretary (Law), Government of Rajasthan, requiring her to submit an affidavit with regard to her status as a Scheduled Caste candidate. The petitioner submitted the requisite information and an affidavit wherein it was pointed out that she was born in `sodah' (Rajput) Community; however, she married a person who belongs to Scheduled Caste category and, therefore, she claimed to be considered in the Scheduled Caste Category. On 3. 5. 2001, appointment orders were issued with respect to 11 candidates for appointment as Additional District & Sessions Judge. Out of the 11 candidates so appointed, one Miss Manju Chauhan did not join. Therefore, the petitioner though that she had a better chance for appointment in the general category and the requested that she be considered as a general category candidate. This is also for the reason that the petitioner was in doubt about her claim to be considered as a Scheduled Caste candidate. It is also on record that on 3. 7. 2001, the Full Court of the High Court accepted the request of the petitioner for being considered in the general category and resolved to recommend her name for appointment as Additional District & Sessions Judge in the general category of the RHJS. The recommendation of the Full Court was sent to the State Government, which according to the Government was received on 09. 7. 2001. However, on 17. 7. 2001, the Supreme Court gave its judgment in the case of Ganga Ram Moolchandani vs. State of Rajasthan and Others etc. (1 ). It is the stand of the State Government as well as the High Court that in view of certain observations contained in the judgment in Ganga Ram Moolchandani (supra), the process of selection and appointment had to be stall. By the said judgment, the Supreme Court had struck down Rules 8 (ii) and 15 (ii) of the Rajasthan Higher Judicial Service Rules, 1969. The appointments already made were saved but for the rest it was observed that the High Court would be well advised to take up the process of selection already started de novo in accordance with the judgment. In view of these observations contained in the said Supreme Court judgment, appointment of the petitioner could not be made. The High Court decided to go through the exercise of amending the rules before taking up fresh selection. Accordingly, fresh advertisements for appointments in the RHJS were issued later on. The selections in pursuance of the advertisement issued on 28. 10. 1999 in which the petitioner was a candidate had to be abandoned. The learned counsel for the petitioner argued that on recommendations of the High Court being made in favour of the petitioner for being appointed in the general category to the RHJS Cadre as Additional District & Sessions Judge on 3. 7. 2001, for all practical purposes, the petitioner should be taken as appointed to the post in question and such appointments are saved in the judgment of Ganga Ram Moolchandani's case (supra ). Therefore, according to the learned counsel for the petitioner, the respondents could not deny appointment to the petitioner to the post of Additional District & Sessions Judge. In this connection, it will be worthwhile to quote the relevant observations of the Supreme Court in Moolchandani's case:- " It is made clear that this judgment will not affect any appointment made prior to this date under the Rules which have been found to be invalid hereinabove. The High Court would be well advised to take up the process of selection already started, de novo in accordance with this judgment and will now recommend the name of the appellant Ganga Ram Moolchandani to the Governor of Rajasthan for making appointment to Rajasthan Higher Judicial Service against one of the existing vacancies. " It will be seen from the above observations of the Supreme Court that the High Court was advised to take up the process of selection already started de novo in accordance with the judgment. In the judgment, the Supreme Court had struck down certain provisions of the Rajasthan Higher Judicial Service Rules. The High Court, therefore, rightly took the view that amendment of the rules was required to be carried out before the process of selection could be taken up. The rules struck down by the Supreme Court were pertaining to eligibility conditions of the candidates. Eligibility condition being basis requirement for any selection process, had to be specified before the selection process could be entertained. Therefore, we find nothing wrong in the High Court taking the view that selection process could be undertaken only after amendment of the relevant rules.
(3.) THE question remains as to whether the recommendation of the High Court made in favour of the petitioner on 3. 7. 2001 could be taken as appointment and, therefore, could be saved as per the judgment of the Supreme Court in Ganga Ram Moolchandani's case (supra ). In this connection, it is to be noted that Article 233 of the constitution of India provides that appointment in the Higher Judicial Service in the State has as to be made by the Governor of the State. THErefore in the State has to be made by the Governor of the State. THErefore, it is the governor alone who is the appointing authority and a High Court recommendation cannot be said to be an appointment. Unless and until the order of appointment in issued by the Governor, person cannot be said to have been appointed as an Additional District & Sessions Judge. Further, difference between appointment and selection cannot be overlooked. Selection is the process by which a person is selected for appointment to a post, however, appointment is the formal order which alone confers right to the post. So, the recommendation of the High Court in favour of the petitioner for appointment to the post of Additional District & Sessions Judge in the RHJS Cadre was at best a final step in the selection process. THE High Court only makes recommendations to the Governor to make appointments. THEreafter, it is for the Governor of the State to issue the formal appointment order. In the absence of appointment order by the Governor no appointment can be said to have been made. In the present case, therefore, it cannot be said that the petitioner had been appointed to the post of Additional District & Sessions Judge merely because the High Court had made a recommendation for her appointment. In our view, the case of the petitioner for appointment could not be saved in view of the observations contained in Ganga Ram Moolchandani's case (supra ). Once it is held that the case of the petitioner could not be saved because in her case there was no appointment as such, it follows that the petitioner cannot claim a right to be appointed to the post. The High Court as well as the State Government were bound by the observations of the Supreme Court to undertake the selection process de novo in the light of the said judgment. These observations came in the way of appointment of the petitioner and for that reason, the State Government was justified in not issuing the appointment order in her favour. Therefore, the petitioner is not entitled to any relief in this petition. The petition hereby dismissed with no orders as to costs. . ;