PRASAD, J. - (1.) THE present writ petition has been filed by the petitioners seeking appointment as Lower Division Clerks pursuant to an advertisement issued by District and Sessions Judge, Pratapgarh dated 10. 05. 2001. By the said advertisement, applications were invited. After scrutiny of applications, competitive examinations were held and it is claimed that the petitioners were declared successful. Having been declared as successful, petitioners were entitled to face type test which was also conducted and a list of selected candidates was prepared.
(2.) IN the notification dated 10. 05. 2001 it was stated that there are six posts of LDCs vacant and in future, some vacancies are anticipated to occur. IN the notification, this was also stated that out of these posts which have been advertised, three posts are reserved for Scheduled Caste and three for Scheduled Tribes. This was also stated that the posts may be filled up from other methods viz, promotions from IV th class and by transfer etc. A panel will be prepared of the successful candidates which will to be effective for one year. According to the petitioners, after declaration of select list on 30. 10. 2001, they kept waiting for the appointment order against the existing and anticipated vacancies. Petitioners claim that vide Annex. 3, petitioners were called to appear before ADJ (Fast Track), Pratapgarh with their testimonials because the vacancies were likely to be filled up. Petitioners have placed reliance on Rule 15 of the Rajasthan Subordinate Courts Ministerial Establishment Service Rules, 1986 (hereinafter referred to as `the Rules of 1986') which is reproduced hereinbelow for ready reference :- " 15. Frequency of Examinations : Early in each year or as the circumstances may require each District Judgeship shall recruit as many candidates for his Judgeship as required for the vacancies likely to arise in the course of the year. " The contention of the learned counsel for the petitioners is that the District Judge of the Judgeship is required to recruit as many candidates as required for the vacancies likely to arise in the course of the year. In terms of Rule 15 of the Rules of 1986, the District Judge is required to determine all existing and anticipated vacancies every year and in this way it is claimed that the anticipated vacancies were 25 and therefore, a select list so declared was required to remain in currency of one year from the date of notification i. e. 30. 10. 2001. Such is the provision provided in Rule 19 of the Rules of 1986. The same is reproduced hereinbelow for ready reference :- " 19. Registration of selected candidates :- (i ). . . . . . . . . . . . . Provided that. . . . . . . . Note- (1 ). . . . . . . . . 2. . . . . . . . . . . (3) If any such candidate has not been given an appointment offer in strict order of seniority according to the list in the bound register prescribed under rule (1) within one year from the date of declaration of the result of his recruitment test, his name shall be automatically removed from the register of recruited candidates. He must then take his chance with others for recruitment again in subsequent year. " While process of selection was continuing, a writ petition was filed before this Court being D. B. Civil Writ Petition No. 955/02, "pappu Lal vs. State" (1), wherein, validity of selections which were made for the recruitment of LDCs in Pratapgarh judgeship were challenged. The said writ petition was dismissed by the Hon'ble Court on 26. 07. 02 and it was observed in the decision that there was no reason for not completing the selection process expeditiously. The petitioners have further averred that while the writ petition was pending, a notification was issued by the respondent on 15. 07. 2002 inviting applications from eligible candidates to fill up the existing 23 vacancies in Pratapgarh judgeship. According to the petitioners, these 23 vacancies were same which were shown as anticipated vacancies in advertisement Annex. 1 dated 10. 05. 2001 for which selection was conducted. After the dismissal of the writ petition in the matter of Pappu Lal (supra), respondent has given appointment to six persons. Out of six persons offered appointment, four joined and two namely Shri Pushpendra and Bhaskar did not join duties within the stipulated time. It is urged that the respondent has not filled in these vacancies as was required under the law from the existing select list. Petitioners were selected candidates against the existing and anticipated vacancies for which a select list was published. Advertisement vide notification dated 15. 07. 2002 for fresh selection is bad according to the learned counsel for the petitioners. Appointments were required to be given from the select list already existing and having not done so, respondent has neglected the mandate of law and also the mandate of Division Bench of this Court. Reply has been filed on behalf of the respondent. Respondent in his reply have contested that advertisement dated 10. 05. 2001 was principally issued for selection of six vacancies of LDCs. Due to pendency of the writ petition of Pappu Lal (supra), the appointments were not made immediately but after dismissal of the writ petition, appointments were made and six eligible candidates were offered appointment out of which four joined and two did not joint and in place of these two persons, two persons from the select list figuring on top were offered appointment. The answering respondent has further submitted that Secretary, Department of Personnel (A-2), Govt. of Rajasthan has issued a circular dated 19. 07. 2001 according to which 50% posts can be filled up by way of panel of successful candidates. This means that appointment cannot be given more than 50% of the posts advertised from the list prepared. Thus, no appointment could have been offered to the petitioners as stands from the circular referred to hereinabove. The answering respondent has issued an advertisement of 23 posts vide Annex. 4 for which examinations were conducted and selection process has been completed. The process of selection for these posts has come to an end and the petition has become infructuous. This has been emphasised in the reply that advertisement dated 10. 05. 01 primarily meant for selection of six posts and six posts have been filled up.
(3.) THE answering respondent has further stated that appointment from the waiting list may be given upto the extent of 50 per cent of the posts advertised. This has also been contested that any person figuring in the select list has no indefeasible right to get appointment. THE answering respondent has submitted that the advertisement issued on 15. 07. 2002 was issued in relation to the posts which occurred after the issuance of advertisement dated 10. 05. 2001. Since the posts were advertised after appointment, petitioners cannot claim any right against the anticipated vacancies. Petitioners cannot claim appointment as a right. Learned counsel for the respondents has further submitted that vacancies which are claimed to have been anticipated when the advertisement was issued, in fact, occurred due to various circumstances and a perusal of Annex. R/1 goes to show that due to inter-district transfers on 22. 05. 2001, three vacancies fallen vacant and two posts became vacant on 04. 07. 2001 due to promotion of two LDCs. One LDC namely, Mangilal Rao was to be retired on 31. 07. 2001. By other inter-district transfer orders dated 15. 12. 2001, 30. 01. 2002 and 01. 02. 2002, 3,2 & 2 posts of LDCs respectively again fell vacant. Two posts of LDCs again became vacant due to inter-district transfer on 01. 02. 2002 and one post on 16. 03. 2002. Three posts became vacant due to death of Nanuram Regar on 25. 06. 2002. Thus, it is clear that these 23 vacancies could not have been anticipated on 10. 05. 2001 when the said advertisement was issued. Supporting the contentions raised in the writ petition, learned counsel for the petitioners submits that in view of Rule 15 of the Rules of 1986, respondents were required to take into account the anticipated vacancies to operate the list as delineated in Rule 15 of the Rules of 1986. Learned counsel for the petitioners further submitted that there is arbitrariness in operating the list. More particularly, when this Court while entertaining the writ petition of the petitioner has ordered that if any appointments are made, they will be subject to final decision of the writ petition. Therefore, whatever selections have been made in view of subsequent notification, they are bad in the eye of law and the petitioners have a preferential right of appointment because they figured in the select list prior to the holding of the examination and appointments pursuant to the advertisement dated 15. 07. 2002. To support the contention, learned counsel for the petitioners has relied on a decision rendered in the case of Purushottam vs. Chairman, M. S. E. B. & Anr. (2), wherein, Supreme Court has held as under:- " The appellant undisputably was selected for the post of Assistant Personnel Officer meant for a Scheduled Tribe category. He had produced the certificate of the Magistrate indicating that he belongs to `halba' caste which is undoubtedly the Scheduled Tribe, but the employer in accordance with the procedure prescribed referred his case to the Caste Scrutiny Committee for verification. The said committee being of the opinion that the appellant dies not belong to Halba caste denied him the right to be employed notwithstanding his selection for the post in question. " ;