ARUN MADAN,J. - (1.) THE questions of law which arise for determination of this Court in the instant writ petition are as indicated herein below: i. Whether under Article 226 of the Constitution of India, it is open to this Court to issue a mandamus to the respondents i.e. the Rajasthan Public Service Commission, Ajmer -respondent No. 1 (hereinafter referred to as 'the Commission') and Secretary to the Government, Agriculture Department Government of Rajasthan (Respondent No. 2) particularly when, the petitioner has not succeeded in establishing his legal right for performance of the corresponding legal duty ? ii. Whether the petitioner is entitled to the relief contrary to 'the rules particularly by when, no such legal or statutory right was subsisting as on the date of preferring the writ petition to this Court? iii. Whether the statutory duty that may be enjoined by mandamus can be imposed by the Constitution of India or a statute or by rules or orders having the force of law ? iv. Whether any mandamus can be issued to the Government to refrain from enforcing the provisions of law or to do something which is contrary to law ?
(2.) THE facts which are relevant for deciding the controversy at issue between the parties are that on 9.1.1986, 25 posts of District Agriculture Officer were advertised by the Commission for filing up the same in the Agriculture Department. The petitioner who was eligible for being considered for appointment on the post of District Agriculture Officer, applied for the said post to the Commission. It is further the case of the petitioner that as on 10.8.1986 the screening Test was held from amongst the eligible candidates who had applied for the above post. The petitioner was called for interview vide letter dated 22.10.1986 (Exh. 1). The result was published in Rajasthan Patrika dated 19.10.1986 and was also affixed on the notice board of the Commission as on 19.11.1986, the name of the petitioner was shown at Sr. No. 1 in the reserve list and he was accordingly intimated in this regard vide letter dated 9.1.1987 (Exh.2). It has been contended by the learned Counsel for the petitioner that on 26.12.1986 a list of 25 selected candidates was sent by the Commission to the State Government and the eligible candidates were appointed in terms of the order dated 11.2.1987 (Exh.3). The last date for joining was intimated to the candidates by the commission as 28.3.1987. Since the name of the petitioner did not figure in the aforesaid list of selected candidates, the petitioner submitted two representations to the Director Agriculture Department vide Exh. 4 and 5 in view of the fact that certain selected candidates had not joined nor they had applied for extension and since the last date which was prescribed for joining had already lapsed and consequently the reserve list may be requisitioned from the Commission and the petitioner who was placed at Sr. No. 1 in the reserve list be appointed. It has further been contended by the petitioner that in response to the above representations, the Director Agriculture Department vide his communication dated 27.4.1987 informed the Special Secretary Agriculture Department that since one person had not joined on the post of District Agriculture Officer, one candidate may be invited for filling up of the said vacancy from the reserve list Subsequently, on 25.6.1986 a requisition was sent to the Commission by the Special Secretary Agriculture Department i.e. the State Government requesting the Commission to recommend atleast two names from the reserve list. In response to this, the Commission vide its communication dated 9.7.1987 informed the State Government that since the aforesaid request was received after the expiry of the due date i.e. 25.6.1986, therefore, it was not possible for the Commission to send fresh names from the reserve list for filling up the vacancies as against those candidates who were recommended and selected for appointment though, they had not joined their duties. Consequently, on 20.7.1987 the State Government again sent another communication to the Commission for sending two names by reiterating the request earlier made and stating that the prescribed limit for sending the names from the reserve list was 25.6.1986 while the requisition in this regard had already been sent by the State Government to the Commission. It has further been contended by the learned Counsel for the petitioner that consequent to above, the petitioner personally visited the office of the Commission on 12.7.1989 when he was informed that a meeting of the Commission had already been convened and taken place on 5.5.1988 and the petitioner's case was, taken up in the meeting and it was resolved in the meeting that since the names of the candidates from the reserve list including that of the petitioner was sent to the Commission by the State Government after the date of expiry of the life of the select list and since the life of the select list could not be extended contrary to the statutory rules ip -s -o -facto by the Commission, hence, it was not possible for the Commission to accommodate the petitioner for being given appointment on the post of District Agriculture Officer. Hence, thereafter being aggrieved from the refusal of the Commission to forward the name of the petitioner to the State Government and in view of the consequential denial of appointment to the post of District Agriculture Officer, the petitioner moved this Court by way of instant writ petition in the year 1989 which is now being disposed of finally by this order. The petitioner in this case has sought relief of mandamus from this Court on the grounds inter -alia that : (a) the date on which the original list of selected candidates was forwarded to the State Government by the Commission was 26.12.1986 and, therefore, 26.12.1986 itself cannot be a date inclusive of the period of 6 months and hence the period of 6 months would commence from 27.12.1986 which stood expired as on 25.6.1987; (b) the Government's requisition had been received by the commission on 25.6.1987 and thus, it was so received within the period of 6 months from the date on which the original list was forwarded by the Commission to the State Government; (c) Rule 22 of the Rajasthan Agriculture Service Rules, 1960 (hereinafter referred to as the Rules of 1960') provides as under:Provided that the Commission, may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the reserve list. The names of such candidates may, on requisition, be recommended in the order of merit to the Government within six months from the date on which the original list is forwarded by the Commission to the Government.
(3.) DURING the course of hearing, Mr. R.C. Joshi, learned Counsel for the petitioner while placing reliance upon the aforesaid provisions of Rule 22 of Rules has vehemently contended at the bar that the above provision clearly indicates that the Commission was under a statutory obligation to recommend the names of the selected candidates from the reserve list in view of non -joining of some candidates who though recommended had not joined. Consequently the petitioner being at Sr. No. 1 in the reserve list should have been called for and be given appointment on the post of District Agriculture Officer. His further contention is that the very object of keeping the select list alive for a period of 6 months from the date of its preparation or publication was that in the event of non -joining of the selected candidates, the vacant post should be filled up from the reserve list but, the petitioner's name was not recommended for joining the duties on the above post since his name was obviously sent after the expiry of the validity period of selected list and hence not considered for appointment. His further contention is that on proper appreciation and construction of aforesaid Rule, the position which emerges is that the period of 6 months should commence with effect from the date on which the original list was forwarded by the Commission to the State Government for appointment of selected candidates duly recommended by the Commission for their appointment and the point involved for consideration of this Court is as to whether the day on which the main list was issued is to be excluded from the validity period of 6 months of the select list of the recommended candidates or not for computing the limitation ? In this regard, the learned Counsel for the petitioner has placed reliance upon Article 12(2) of the Limitation Act, 1963 (hereinafter referred to as 'the Act of 1963') which provides, as under: 12(2). In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. ;