NAOLEKAR, J. - (1.) THE Director Education Government of Rajasthan sent a requisition vide communication dated 8. 8. 1995 to the Rajasthan Public Service Commission (for short, "the Commission") for selection of suitable candidates to fill twenty-five vacancies of College Lecturers in Geography. THE break-up of these vacancies was - twelve of the year 1994-95 and thirteen of the year 1995-96. Out of these vacancies four were reserved for Scheduled Castes, three for Scheduled Tribes and five for Other Backward Classes. In pursuance of the requisition, the Commission invited applications from eligible candidates vide advertisement dated 8. 11. 1995. Last date fixed for receipt of the applications was 30. 12. 1995. 118 candidates applied for the post. On scrutiny, 115 candidates were found eligible to appear in the interview. Before commencement of the interviews, demand for additional thirteen vacancies was further sent to the Commission vide communication dated 12. 2. 1996 by the Director Education Government of Rajasthan under proviso to Rule 16 of the Rajasthan Education Service (Collegiate Branch) Rules 1986 (for short `the Rules of 1986' ). THEreafter interviews were held from 15. 4. 1996 to 18. 4. 1996. THE Commission prepared select list of thirty-eight candidates, forwarded same to the Government vide letter dated 9. 5. 1996, and prepared reserve list of thirty -eight candidates, as required under Rule 20 of the Rules of 1986. On receipt of the select list the Director Education Government of Rajasthan gave appointments to thirty-seven persons vide order dated 1. 7. 1996. THEreafter on 3. 7. 1996 four persons from the reserve list were given appointments on account of non joining of four persons who were given appointments from the select list. Ashok Kumar Gupta, who remained unsuccessful in the interview, filed writ petition seeking direction of restraint against the respondents - State of Rajasthan and Rajasthan Public Service Commission - to make further appointments from the reserve list on additional vacancies which were not advertised. THE learned Single Judge vide order dated 7. 7. 1997 allowed the writ petition and the respondents were restrained from making further appointments operating the reserve list. Aggrieved by the said order, present special appeal is filed.
(2.) THE questions for adjudication in this case are as to what shall be the scope and extent of R. 20 of the Rules of 1986, and whether appointments can be made from the reserve list on unadvertised vacancies and whether Rule 20 can be read in isolation or has to be read with Rule 16 of the Rules of 1986. Before we take up the question of interpreting the rules, we may refer to certain decision of the apex curt wherein scope and ambit of reserve/waiting list are laid down. In Gujarat State Dy. Executive Engineers Association vs. State of Gujarat & Others (1), the Apex Court has explained the scope and extent of reserve list and as to how it is to operate in service jurisprudence and held 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 waiting list is in respect of those 10 seats only, for which selection or competition was held. The waiting list cannot be used as a perennial source of recruitment for filling up the vacancies advertised. The Court did not approve the view of High Court that since vacancies have not been worked out properly, therefore, candidates from waiting list were liable to be appointed. The candidates in reserve list had no vested right to be appointed, except to the limited extent when a candidate selected for the exiting vacancies does not join for some reason and the reserve list is still operative. In the case reported in State of Bihar and Another vs. Madan Mohan Singh and Others (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 existed 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 & Others vs. State of Jammu & Kashmir and Others (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 or 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 further 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 post 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 fell vacant after the advertisement was issued. Similar view was taken by the Apex Court in the Matter of Surendra Singh & Others vs. State of Punjab & Others (5), wherein it has been said that the waiting list cannot be used as a perennial source of recruitment for filling up the vacancies no advertised. The candidates in waiting list have no vested right to be appointed except to a limited extent that a candidate selected against the advertised vacancy did not join for some reason and the reserve 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 decision, the principle set out by the Supreme Court is very clear in regard to operation of reserve/waiting list inasmuch as it would be improper exercise of power to make appointments over and above the advertised vacancies. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision is taken. Exercise of such a power has to be tested on the touchstone of reasonableness. Before an advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not a matter of course that the authorities can fill up vacancies other than advertised. The question really is whether R. 20 permits separate source of recruitment above and beyond what has been permitted under R. 16, as submitted by the counsel for appellant, placing strong reliance for the said proposition on Virender S. Hooda & Others vs. State of Haryana & Another (6), and a Division Bench judgment of this Court in Shiv Prakash Maheshwari vs. State of Rajasthan & Others (7), wherein analogous rule namely the Rajasthan Agriculture Subordinate Service Rules 1978 - to the Rules of 1986 was taken into consideration. Rule 16 and 20 of the Rules of 1986 are relevant for our purpose. Rule 16 and 20 read as under:- " 16. Inviting of Application:- Applications for direct recruitment to posts in the service shall be invited by the Commission by advertising the vacancies to be filled in the official Gazette or in such other manner as may be deemed fit. Provided that while selecting candidates for the vacancies so advertised, the Commission may if intimation of additional requirement not exceeding 50% of the advertised vacancies is received by them before selection, also select suitable persons to meet such additional requirement" " 20. Recommendation of the Commission:- The Commission shall prepare a list of candidate, whom they consider suitable for appointment to the posts concerned, arranged in order of merit and then the Commission shall forward the list to the Government. Provided that the commission may also to the extent 100% of the vacancies finally intimated before the selection keep names of suitable candidates on the reserve list. The commission may on requisition, recommend the name of such candidates in order of merit to the Government within twelve months form the date of which the original list is forward by the Commission to the Government. " Rule 16 says that the Commission by advertising vacancies in the official Gazette shall invite applications for direct recruitment or in such other manner as may be deemed fit i. e. to say in newspapers. according to the proviso to Rule 16, the Commission may if intimation of the additional requirement, not exceeding 50% of the advertised vacancies, is received before selection, it may select suitable candidates to meet such additional requirement. Thus, under the proviso before selection, if intimation is received by the Commission, it can fill up additional vacancies not exceeding 50% of the advertised vacancies. Proviso to Rule 16 permits the Commission to extend the advertised vacancies to the extent of 50%. Operational effect of the proviso would be that the advertised vacancies are increased to 50% if the Commission receive intimation to that effect before selection. Plain reading of Rule 20 makes it clear that the Commission had been given authority to prepare a list of candidates whom they consider suitable for appointment to the vacancies advertised and arrange them in the order of merit. the commission is enjoined upon to send names of candidates in the order of merit to the Government. Proviso to Rule 20 permits the Commission to prepare a reserve/waiting list to the extent 100% of the vacancies under Rule 16. The Commission may on requisition recommend names of such candidates in the order of merit to the Government within twelve months from the date on which the original list of selected candidates was sent to the Government, under the proviso. Placing reliance on the aforementioned judgments, the submission made by the counsel for appellant is that the proviso to Rule 20 gives additional powers to the Commission to operate the reserve list irrespective of the filing of the advertised vacancies or the vacancies which arose on account of non-joining of the selected candidates. ;