Hon'ble SINGHAL, J. - (1.) - This judgment shall dispose of the present appeal and the similar writ petitions as mentioned in Schedule-A appended to the judgment since the order of learned Single Judge dated 24.11.1990 has been challenged and the points involved in all the matters are common.
(2.) LEARNED Single Judge vide its order dated 24.11.1990 has disposed of a bunch of 690 writ petitions and directions were given that the respondents would prepare a merit list of all the successful candidates having 37.5% or more marks and consider the candidature of all those persons having 37.5% of marks or more for the purposes of giving appointments to the post of L.D.C. in the various subordinate offices and departments under the Government of Rajasthan, Rajasthan Secretariat and the office of the Rajasthan Public Service Commission etc. and would ensure that no candidate having a percentage of 37.5% and more than that at the previous examination, which is the subject matter of this litigation, and have been deprived of the appointment merely on the basis of preference given for one district and the preference which has been given for the purpose of second district to serve, is left without job. This order was made applicable to all the petitioners and other successful candidates of the examination in question having 37.5% marks or more irrespective of the fact whether their writ petitions are pending before this court or the cases in which no writ petitions have been filed. The facts giving rise to the present dispute are that an advertisement was issued on July 23,1986 by the Rajasthan Public Service Commission (hereinafter to be referred to as "the Commission") in respect of the competitive examination of Lower Division Clerks for 888 posts in the Subordinate Offices of the Government of Rajasthan, 57 posts in the Secretariat and 21 posts in the Commission. The total strength thus was 966 at the first instance. The last date for submission of application form was 15.10.1986 which was extended to 31.12.1986 and 98537 applications were received. Written examination was held on December 13, 1987 and the result was declared on May 9, 1988. The type examination was held on 29/30.10.1988 and the result was also declared on April 17, 1989. The select list was sent to the Government on July 3, 1989. In the advertisement issued, options were invited from the candidates for one district only, whereas Rule 21 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter to be referred as "the Rules") contemplated that option has to be given in respect of two districts. The list in respect of Bikaner District was prepared, in which the last candidate who was taken was having 37.5% marks, which were rounded to 38%. A batch of 58 writ petitions was filed on the ground that the candidates were not asked to give their option in respect of second district and since the candidates having 37.5% marks have been placed in the list prepared for Bikaner district, therefore, the right of those persons who could have given option for Bikaner district were deprived of giving such option on account of the advertisement issued, which is contrary to the provisions of Rule 21 of the Rules and it has deprived of their right for employment. The writ petitions were allowed on August 1, 1990 in the case of Rajendra Singh V/s State of Rajasthan (1 ). It was directed in this judgement that since all the petitioners have given their second choice (in writ) for appointment in Bikaner District they shall be. considered to be given appointment on the posts still lying vacant in Bikaner District in order of merit, provided none of them has secured less than 38% marks. Two Special Appeals No. 263/90 R.P.S.C. V/s Om Dutt Sharma and others and 264/90 R.P.S.C. V/s Rajendra Singh and others (2) were also preferred which were decided on 10.10.1990. In the aforesaid two cases, the Division Bench has held that the Commission shall issue a general notice to be published in the News-paper having wide circulation and call upon all the remaining candidates who have been successful at the examination to give their options for second district and then prepare a select list on the basis of merit and choice of districts and forward the same to the Government for the purposes of making appointments. It was further directed that the Government shall make appointments from this list against the posts of LDCs, which were available with it including those which had become available within six months from the date of the original list was forwarded by the Commission to the Government in the Department of Personnel. 140 posts which were referred in the judgment of the learned Single Judge were also directed to be included in the said list. The Division Bench came to the conclusion that in accordance with the Rules the option has to be obtained in respect of two districts and, therefore, the above directions were given and the benefit was given to all successful candidates whether they have filed the writ petitions or not. In the remaining 56 Appeals which were filed against the judgment of learned Single Judge (Hon'ble Justice I.S. Israni), the Division Bench followed the decision given by the earlier Division Bench as reported in 1990 (1) RLR 182 (supra) as per its judgment dated 29.1.1991. In the mean-time, 966 posts were increased to 1882 by the Government and appointments were given to the candidates on the basis of the list prepared of the option being given for one district. Rit Petitions were filed by different candidates who were not given appointments and they were disposed of by the judgment dated 24.11.1990 in Sunita Gupta V/s State of Rajasthan This decision has been challenged in the present special appeal. It is pertinent to note here that the selection of those candidates to whom appointment was given, was not challenged in these wRit petitions and the only grievance was that because less meRitorious candidates have been given appointments, therefore, these petitioners should also be given appointment. Ah objection was raised on behalf of the Government that since the Division Bench has given directions that a general notice has to be issued calling upon all successful candidates to give their option for the second district and then prepare a select list and for that purpose the posts of L.D.C. which were available with the Government including the posts which have become available within six months of the date on which the original list was sent by the Commission to the Government in the Department of Personnel, the relief will be granted to those candidates including previous petitioners who are conversed by these directions of the Division Bench by including 144 posts which were referred by the learned Single Judge. The argument on behalf of the petitioners that no further appointment should be allowed to be made unless the whole list of successful candidates at the examination in question is exhausted, was negatived and it was held that looking to the facts and circumstances of this case in its entirety and that the scheme of the Rules operates year-wise, it is rather difficult to accept this contention raised on behalf of the petitioners that no further recruitment should be allowed to be made unless the whole list of the successful candidates at the previous examination is exhausted. While dealing with the matter on meRits, it was held that once it has been found that a candidate with lessor marks has been appointed and this situation has been precipitated because of wrong interpretation of the rules given by the respondents, the candidate with higher meRit cannot be made to suffer, whether the vacancies as such may have been available or not, the respondents have to find their own way as to how to accommodate the candidates having 37.5% marks or more than that. Whether the respondents create supernumerary posts or they evolve out a scheme to utilise the vacancies on equivalent posts in the State Controlled Corporation and Enterprises or in other agencies or instrumentalities of the State or they determine as to in fact how many candidates are working in the various departments of the State on ad hoc or daily wages and as to how many of them will have to make way for the regularly selected candidates having percentage of marks 37.5% and more than that, is a matter of fact, created this situation, It was further observed that so far this court is concerned, the Court cannot say 'No' to a candidate who has obtained 37.5% marks or more than that. Once it has been admitted before the court by the respondents themselves that the last appointed candidate in the general category is a candidate having 37.5% marks, in case such a relief is denied, it would be doing violence to the meRit and this would dwindle the object sought to be achieved and shake the mounting faith which the youth and the people of India repose in the Judiciary for the purposes of protecting the fundamental rights under Articles 14 and 16 of the Constitution of India. In these circumstances, the wRit petitions were allowed and all candidates having 37.5% marks or more were directed to be given employment.
(3.) IN pursuance of the directions of the Division Bench in the judgment reported in 1990 (1) RLR 182 (supra), the Commission has issued notification calling upon the candidates to give option for one more district. Another writ petition, Om Prakash Sharam vs. State of Rajasthan along with 829 other similar writ petitions was decided on 07.5.1992 by a Division Bench, in which the provisions of Rules 19 and 24 were struck down so far holding of examination and preparing the merit list according to the districts was concerned. There were 9321 candidates who have qualified the competitive examination of 1986. In the main list, which was sent to the Government on 3.07.1989, 1777 names were included and a reserve list which was valid for six months of 713 candidates was also sent. When the present special appeal was heard on 10.04.1991, the Division Bench consisting of Hon'ble Justice M.B. Sharma and Hon'ble Justice G.S. Singhvi passed an interim order to call for option from the candidates for one more district and sent a list of 906 candidates in accordance with merit. It may be noted that the vacancies as on 10.4.1991 were said to be existing only 906. In compliance of this direction, another notification was issued on 29.04.1991 calling for the option for one more district in respect of these 906 posts. The list of these 906 candidates was sent to the Government on 24.07.1991 and the appointment orders were also issued in September, 1991. 249 persons have not joined out of these 906 vacancies, for which letters were issued. The list of 249 candidates was prepared on the basis of merit of State-wise in accordance with the judgment dated 7.5.1992 in the case of Om Prakash Sharma V/s State of Rajasthan, D.B. Civil Writ Petition No. 7072/91. Appointment letters were issued on 9.10.1992 and the last person appointed in the list was having 61.5% marks. It has also been informed that now the total number of candidates who have obtained minimum pass marks of 37.5% and could not be given appointment, is 6526. In respect of Bikaner District, it was informed that a list of 275 candidates was prepared in which the last candidate of the general category obtained 37.5% marks and was placed at Serial No. 268. The last candidate who was given appointment was up to Serial No. 219 and have obtained 46.5% marks and rest of the persons of the general category were not given appointments. The minimum percentage on which a candidate according to the State merit list was 43.5% at Jalore where the last appointment was given. ;