ASOPA, J. - (1.) BY the instant writ petition, the petitioner has initially challenged the selection of respondent No.3 & 4 (Dr. Sudhir Mehta & Dr. Rajiv Bagarhatta) against the vacancies of the year 1990-91 for the post of Lecturer in General Medicine and to direct the respondent Rajasthan Public Service Commission to accordingly amend the result of the selection of the year 1990-91. The petitioner has further sought consequential direction of appointment to the said post against the year 1990- 91 with seniority.
(2.) THE facts in brief of the case are that the petitioner has filed the present writ petition initially challenging the eligibility of Dr. Sudhir Mehta and Dr. Rajiv Bagarhatta (respondent No.3 & 4 in the original writ petition) on the ground that these two private respondents were not eligible for appointment against the vacancies of the year 1990-91 to the post of Lecturer (General Medicine) on account of not completing the post-graduation degree i.e. M.D. in General Medicine upto 1.4.1990. Subsequently, an application was filed on 8.5.2006 for deleting the names of Dr. Rajiv Bagarhatta - respondent No.4, Dr. S.K. Sharma - respondent No.5 and Dr. Shiv Charan Jelia - respondent o.6 and the same was allowed on 11st May, 2006 along with another application of adding Dr. Prakash Keshwani as party. Presently, the grievance of the petitioner is confined to Dr. Sudhir Mehta - Respondent No.3 of the writ petition. Dr. Sudhir Bhandari, who was originally respondent No.7 is now respondent No.4 and Dr. Prakash Keshwani is respondent No.5. It is stated in the present writ petition that the writ petition No. 5424/1990 filed by the petitioner apprehending the termination while working as adhoc temporary Lecturer in General Medicine and for claiming regularisation was decided along with connected writ petition No. 5425/1990 of Dr. Sudhir Bhandari on 11.4.1990, was dismissed so far as claim of the petitioner to be treated as substantive appointee is concerned. However, termination of the petitioner was declared illegal. The operative portion of the said judgment dated 11.4.1994 is as under: "In the result of the writ petitions are dismissed so far as claim of the petitioners to be treated as substantive appointees is concerned. However, termination of the petitioner is declared illegal. The petitioner shall be allowed to continue in service till the availability of of the candidates selected by the Rajasthan Public Service Commission. The Commission is directed to interview the petitioners and other adhoc appointees who have completed three years of more of service without requiring them to appear in the screening test. While interviewing them along with other candidates the Commission shall take into consideration their performance and service record. The respondent Government is directed to positively make year-wise determination of vacancies under rule 8A of the Rajasthan Medical Service (Collegiate Branch) rules and send requisition for various posts under these rules on yearly basis. The Commission must also make year-wise selection as far as possible. Costs made easy." Against the said judgment in both the cases, the Rajasthan Public Service Commission (for short `in RPSC') filed special appeals, which were registered as DB civil special appeal Nos. 492/94 and 533/94. The said special appeals were disposed of on 8th May, 1995 without there being any order of cost and the directions issued by learned Single Judge were sustained with following modifications. The relevant portion of the said judgment dated 8th May, 1995 is as follows: "After hearing the learned counsel for the parties and after, careful perusal of the impugned order passed by the learned Single Judge, we are of the opinion that the direction issued by the learned Single Judge deserves to be sustained with following modification: The Rajasthan Public Service Commission is directed to interview the respondents-petitioners, namely, Dr. Rajendra Kumar Surekha and Dr. Sudhir Bhandari only, against the vacancies of the year 1990-91 on the basis of heir performance and service recording relating to their past service as Lecturers in the department of Medicine, and declare the results within a period of one month from the date of production of certified copy of the judgment of this Court. Their consideration should not be clubbed with open market candidates, for the reasons which have been enumerated by the learned Single Judge and have been affirmed by us. The appellant, Rajasthan Public Service Commission should start the process of selection for the vacancies of subsequent year i.e. 1991-92, 1992-93 and 1993-94 only after interviewing the respondents-petitioners against the vacancies of 1991. We further direct that in case the respondents petitioners are selected against the vacancies of 1991 on the basis of their past performance and service record, they would also be entitled to the benefit of seniority at least with effect from 1st April, 1990, on which date two posts of Lecturers in Medicine were available. Against the said judgment, the RPSC filed a SLP and in the SLP, Supreme Court passed the order on 5.6.1995. The relevant portion of said order dated 5.6.1995 of Supreme Court is as follows: "We have heard learned counsel for the appellant and respondents Nos.1 and 2. In so far as the direction given by the High Court dispensing with the requirement regarding screening test in respect of respondents Nos.1 and 2 and other adhoc appointees who have rendered service for three years or more, in the facts and circumstances of the present case, we do not consider it appropriate to interfere with the direction given by the High Court. We are, however, of the view that in the matter of selection for the two vacancies for the post of Lecturers in Medicine for the year 1990-1991, the appellant - Rajasthan Public Service Commission may consider the respondents Nos. 1 and 2 along with other applicants who are found eligible for appointment to the vacancies of the year 1990-1991 and who have submitted their applications. While considering, the Commission will take into account the performance and service record of the applicants who are in government service. Time for consideration is extended by four weeks. In the event of the respondents Nos. 1 and 2 being selected, their seniority will have to be decided by the appropriate authority in accordance with the relevant provisions of the Rules. The appeals were disposed of accordingly." After the judgment of learned Single Judge dated 11.4.1994, an advertisement was issued by the RPSC on 23.8.1994 for 12 posts of Lecturer (General Medicine). In paragraph 6, it has been mentioned that required qualification and experience should be attained till the last date of application and last date of application mentioned was 7.10.1994. During the pendency of special appeal before the Division Bench, some exercise of year-wise vacancy was undertaken by the Government and it was admitted that there are 2 vacancies of the year 1990-91. It is stated in the writ petition that subsequently, said 12 number of posts was increased to 22 posts and there was consequential increase of 2 vacancies for the year 1991. Thus, in all the vacancies for the year 1990-91 became 4.
(3.) THE further case of the petitioner is that as per Rule 8A, 9, 12 read with Rule 24-A of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter to be referred as the Rules of 1962), the respondent Government and the RPSC are bound to determine the vacancies year-wise for direct recruitment and further make selection year-wise by taking the date of eligibility as 1st of April of the respective year of vacancy. During the pendency of the writ petition, petitioner filed an application for deletion of name of some of the respondents, which was allowed, as indicated above. The petitioner further confined his grievance of the ineligibility of Dr. Sudhir Mehta on account of completion of M.D. Course after 1.4.1990, on 23.1.1991. It is further submitted that Dr. Rajiv Bagarhatta, who was placed in the reserve list was also selected for the post of Lecturer (Cardiology) and he had joined on the said post, therefore, name of the petitioner will automatically be placed in the reserve list, being next available candidate. In case of appointment of Dr. Sudhir Mehta, who was one of the selected and appointed candidate against four vacancies is quashed then the petitioner would be entitled to be placed in the merit list at No.3, above the reserve category candidate. The respondent No.1 State as well as the RPSC and present contesting private respondents filed separate reply / counter affidavit to the writ petition. On merit of case, in their reply, they have denied that there was any binding observation/finding of the Apex Court for taking the date of eligibility as 1.4.1990. It is further stated in reply that for direct recruitment, no date of eligibility is prescribed in the Rules of 1962. They have also stated that the eligibility as per Clause 6 of the advertisement dated 23.8.1994 was to be seen as on last date of application which has been mentioned as 7.10.1994 in border line box. They have also stated that none of the Rule referred by the petitioner make it obligatory to take 1st of April of the respective year of vacancy as the date of eligibility. Counsel for the RPSC has also submitted that on 7.8.1998, the Supreme Court in SLP of Rajasthan Public Service Commission vs. Deepak Verma & Anr. held that direction contained in the order dated June 5, 1995 in Civil Appeals arising out of special leave petitions Nos.12740-41/95 filed by RPSC against the Division Bench judgment were given in the facts and circumstances of those cases only and the said directions cannot be treated as laying down the law regarding selection for appointment by the Rajasthan Public Service Commission which has to be made in accordance with the relevant rules, therefore, said order of Supreme Court dated 5th June, 1995 delivered in case of petitioner and Dr. Sudhir Bhandari cannot be treated as laying down the law regarding selection for appointment by the RPSC for any other subsequent year of same case or other cases. The relevant part of order dated 7.8.1998 passed in the case of RPSC vs. Deepak Verma & Anr. is as follows: "Having regard to the fact that the respondents have already been considered and selected for appointment on the post of Assistant Professor in respective specialities and they have also been appointed, we do not consider it a fit case to go into the question that has been raised by the petitioner in these special leave petitions. We, however, clarified that the directions contained in order dated June 5, 1995 in Civil Appeals arising out of Special Leave Petitions Nos. 127740/41/95 were given in the facts and circumstances of those cases only and the said directions cannot be treated as laying down the law regarding selection for appointment by the Rajasthan Public Service Commission which has to be made in accordance with the relevant rules." ;