M. C. JAIN, J. - (1.) THIS is an appeal directed against the order of the learned Single Judge dated January 9, 1985 whereby, the learned Single Judge upheld the preliminary objection raised by the respondents that the writ petition is pre-mature.
(2.) WE may state a few relevant facts. Two posts of Lecturer in Bio-chemistry WEre advertised by the Rajasthan Public Service Commission (for short 'the RPSC') vide advertisement No. 3/82/83 dated July 14, 1982. The petitioner and respondent No. 3 Amarsingh Rathore and one Dr. R. C. Gupta applied for the post. Shri Amarsingh Rathore and Dr. R. C. Gupta WEre selected. The RPSC published a list of the selected candidates on February 16, 1983. It may be Stated that the petitioner - appellant was holding a post-graduate degree of M. D. in Bio-chemistry, which was obtained from the faculty of Medicine, University of Rajasthan. He entered his services in the Government of Rajasthan as Senior Demonstrator of Physiology on January 17, 1974. That appointment was on temporary basis. The post-graduate degree was obtained by him in 1975, thereafter, the petitioner was given regular appointment on the post of Senior Demonstrator after having been selected by the Rajasthan Public Service Commission. . Subsequent thereto, the petitioner was promoted on the urgent temporary basis to the post of Lecturer in Bio-chemistry. Due to selection of Dr. R. C. Gupta and Amarsingh Rathore, he apprehended his reversion from the post of Lecturer. The petitioner, therefore, challenged the selection of Shri Amarsingh Rathore (respondent No. 3) on the ground that respondent No. 3 was not holding the requisite qualifications. Replies to the writ petition were submitted by respondent No. 2- Rajasthan Public Service Commission as well as respondent No. 3-Shri Amarsingh Rathore and separate rejoinders were filed by the petitioner and no reply was filed on behalf of the State of Rajasthan. The respondents, however, raised the preliminary objection regarding the maintainability of the writ petition. It was urged by them that till the appointment is madeby the Government, the petitioner has no right to move the Court, as the Government may give or may not give the appointment. No cause of action accrues to the petitioner till the appointment is given to respondent No. 3. The arguments were heard by the learned Single Judge on this preliminary objection and the learned Judge upheld the preliminary objection and found that the writ petition is pre - mature, so, it cannot be maintained, consequently, the writ petition was dismissed. We have heard Mr. M Mridul, learned counsel for the appellant and Mr. H. N Calla, learned counsel for respondents No. 1 and 2 and Mr. B. L. Purohit, learned counsel for respondent No. 3 on the preliminary objection decided by the learned Single Judge. We may first of all state that the learned Single Judge proceeded to consider the question in the light of the decision of the Supreme Court in Mrs. Kunda S. Kadam v. Dr. K. K. Soman (l ). On behalf of the appellant, two decisions of this Court in Miss Kamlesh Bhardwaj v. State of Raj (2) and Krishi Upaj Mandi Samiti, Jodhpur v. State of Rajasthan (3) were cited. The learned Judge in connection with those two decisions observed that in both the decisions Mrs. Kunda S. Kadam's case (supra) was not noticed and that both the cases are distinguishable. According to the learned Judge, Mrs. Kunda S. Kadam's case (supra) is fully applicable and on that basis, he upheld the preliminary objection. Certain other authorities have also been referred to by the learned Single Judge.
(3.) THE question that emerges for consideration in the facts and circumstances of this case, is as to whether the petitioner can maintain the petition, when the selections have been made by the RPSC and the selections list has been published and the recommendations have been sent to the Government, but the Government has not acted on the recommendation i. e. the Government has not issued any appointment orders so far. THE question is as to whether the selections are open to challenge on the ground of in-eligibility, when the appointments are not given by the Government. THE relevant Rules are the Rajasthan Medical Service (Collegiate Branch) Rules, 1962. By these Rules, the Rajasthan Medical Service (Collegiate Branch)has been constituted and all recruitments have to be made in accordance with these Rules. Part IV deals with the procedure for direct recruitment and Part V deals with the procedure for recruitment by promotion. For direct recruitment, the applications are invited through the RPSC For scrutiny of applications, the relevant rule is Rule 19, which reads as under :- "19. Scrutiny of applications-THE Commission shall scrutinise the applications received by them and require as many candidates qualified for appointment under these Rules as seem to them desirable to appear before them for interview; Provided that the decision of the Commission as to the eligibility or otherwise of a candidate, shall be final. " Under rule 19, the applications are scrutinised by the Commission and after scrutiny, the Commission may require as many candidates qualified for appointment under these Rules as seem to them desirable to appear before them for interview. The proviso to rule 19 is very material, which lays down that the decision of the Commission as to the eligibility or otherwise of a candidate shall be final. Under rule 20, the Commission is required to prepare the list of the candidates, whom it considers suitable for appointment to the post concerned arranged in the order of merit and forward the same to the Government. Rule 22 is also material, which is also reproduced hereunder :- "22. Selection by the Government: Subject to the provisions of Rule 7 Government shall select candidates who stand highest in the order of merit in the list prepared by the Commission under Rule 20; Provided that the inclusion of a candidate's name in the list confers no right to appointment unless the State Government is satisfied after such inquiry as may be considered necessary that the candidate is suitable in all other respects for appointment in the service. " Under Rule 22, the Government is required to select the candidate, who is highest in the order of merit in the list prepared by the Commission under r. 20. The proviso to rule 22 further lays down that the inclusion of a candidate's name in the list prepared by the Commission confers no right to appointment unless the State Government is satisfied, after such enquiry, as may be considered necessary that the candidate is suitable in all other respects for appointment to the service. According to the proviso, the State Government is empowered to hold an enquiry so as to satisfy itself as to whether the candidate is suitable in all other respects other than suitability on merit based on the eligibility as determined finally by the Commission under rule 19. The scheme of the Rules appears to be that it is the exclusive domain of the Commission to determine the eligibility as well as suitability and also to determine the order of merit. The appointments have to be made in order of merit. The selected candidate's suitability on merit or eligibility can not be examined and considered by the Government. He is to be found fit medically or suitable in other respects. His ente-cedents may also be got verified. Thus, rules, 19, 20 and 22 clearly demarcate the functions of the Commission and of the Government. It would appear from the scheme that in case, the appointment is to be made, when in all other respects the candidate is found suitable, then recommendation of the Commission cannot be given go by So far as the eligibility is concerned, that is not open to question by the Government so decision of the Commission is final in this regard. Under the scheme of these Rules, it is to be seen as to whether the cause of action arises to a candidate for challenge to the selection of any other candidate on the ground of in-eligibility. When the Govt. has no say in the matter to go into the question of eligibility, the cause of action is complete for such a candidate who wants to challenge the selection and appointment consequent thereto on the ground that the selected candidate does not passess the requisite eligibility qualification. If the Government is satisfied that the selected candidate is not suitable in all other respects then the appointment may not be given. In case, the Government holds the candidate suitable in all other respects, then there is no option left to the Government except to give appointment, when vacancy is to be filled in. ;