PUSHPENDRA SINGH BHATI,J. - (1.) Learned Counsel for the petitioner states that the matter is squarely covered by the judgment of Hemlata Sarswat v. State of Rajasthan and Ors. (S.B. Civil Writ Petition No.11382/2016) decided on 16.01.2018 . The judgment reads as under:- "1. These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S.B. Civil Writ Petition No.11382/2016. "It is, therefore, must humble prayed that this writ petition may kindly be allowed with cost and by an appropriate writ, order or direction; the impugned order dated 19.09.2016 (Annex.6) may kindly be quashed and set aside and respondents may kindly be directed to continue the petitioner on the post of Pharmacist. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. Costs of the writ petition may kindly be awarded to the petitioner."
(2.) The brief facts as noticed by this Court are that the respondent issued an advertisement 26.11.2011 for the recruitment on the post of Pharmacist as per the provisions of Rajasthan Medical and Health Subordinate Service Rules, 1965. As per the initial advertisement, 1010 posts were advertised by the respondents by a subsequent corrigendum dated 30.12.2011, the number of posts were raised to 1478. The result of the examination was declared on 29.06.2012 and the select list was accordingly issued for 1343 candidates. The petitioners have joined their duties in consequence of this first select list and therefore, are in continuous service on or before 14.08.2012. In a subsequent litigation, the Hon'ble Court at Jaipur Bench in S.B. Civil Writ Petition No.311/2014 (Umesh Singhal v. State of Rajasthan and Ors.) passed an order on 05.03.2014 directing the respondents to get their objections regarding the question-answers decided by the experts. The respondents completed the said exercise and a revised merit list was thus issued. However, while giving relief to the candidates who were falling in merit in the revised merit list, the Hon'ble Court at Jaipur Bench passed an order in Umesh Singhal (supra), in which the candidates already appointed against the vacant posts were to be continue by placing them below candidates who are now in the revised merit list placed higher than them in the merit. The relevant portion of the order dated 05.03.2014 read as follows: "Having regard to the ratio of aforesaid judgment in Rajesh Kumar, supra the writ petition is disposed of directing respondent-university to get the objections raised by the petitioners examined from experts, on receipt of the report, within one month from the date copy of this order is produced before them and forward the revised merit list to the State. The State Government on the basis of such revised list, shall offer appointment to such candidates, who newly figure in the merit list within the advertised number of posts i.e. 1478. The candidates already appointed against the vacant posts, may be continued in service by placing them below the candidates who are now in the revised merit placed higher than them in merit. The appointment of newly figure candidates in the merit shall relate back to the date when the appointments of the candidates was made on the basis of originally prepared merit list." The respondents while executing the said order, offered appointment to 133 candidates as per the revised merit list. 3. In another litigation regarding the same selection process for the post of Pharmacist, the Hon'ble Court at Jaipur Bench passed another order on 03.11.2015 in S.B. Civil Writ Petition No. 6656/2015 (Satyendra Kumar v. State of Rajasthan and Ors.) . In this matter, the Hon'ble Court was pleased to direct that the ratio of Rajesh Kumar Daria (supra) had to be complied with for operating 30% horizontal reservation for female candidates. The operative portion of the judgment reads as follows: "In view of the above, I find substance in the arguments of the learned counsel for the petitioners. The non-petitioners are thus directed to undertake the exercise to find out as to how many appointments have been given to the women candidates in excess to the reservation meant for them. For the purpose of aforesaid exercise, they would count all the female candidates given appointment and if women are found in excess to the seats meant for them against 30% reservation, to that extent appointment to the meritorious candidates would be given. The compliance of the order would be made within a period of three months from the date of receipt of a copy of this order." The respondents while giving effect to the aforementioned operative para, have passed an order of termination of the services of the petitioners. 4. Learned counsel for the petitioners have argued that the petitioners were already under protection of an order of this Hon'ble Court at Jaipur Bench passed in the matter of Umesh Singhal (supra), therefore, the respondents could have terminated their services in lieu of the order passed in Satyendra Kumar (supra). Particularly, when such order do contain the directions to terminate the services of the petitioners. 5. Learned counsel for the petitioners have also drawn attention of this Court to the order passed by this Hon'ble Court at Principal Seat, Jodhpur in S.B. Civil Writ Petition No.639/2015 (Ashok Kumar Nawal v. State of Rajasthan and Ors.). decided on 11.09.2015 , whereby the same set of petitioners appointed as Pharmacist on or before 2012, were protected by this Court and the relevant portion of the order reads as follows: "I have heard learned counsel for the parties and have gone through the material available on record as well as the order dated 5.3.2014 passed by this Court in the case of Umesh Singhal (SBCWP No.311/2014) while examining an identical controversy in the writ petition filed by the petitioners' peers. The observation made by this Court in Umesh Singhal's case (supra) that the State "MAY" continue with the services of the writ petitioners despite their ouster from the merit list as a result of the revision of merit list was based on the ratio of the judgment rendered by the Hon'ble Supreme Court in Rajesh Kumar's case (supra). In the said judgment, the Hon'ble Supreme Court positively directed the Government authorities to continue with the services of those litigants who were earlier selected but owing to revaluation and revision of merit list had been ousted from the list of the meritorious candidates and were pushed back beyond the number of advertised vacancies. In this background, this Court is of the opinion that leaving the fate of the petitioners at the discretion of the State Government is at all justified. The facts being totally identical, there is no reason to extend the same benefits to the petitioners in light of the directions given by the Hon'ble Supreme Court in Rajesh Kumar's case (supra). Similar view was expressed by the Hon'ble Supreme Court while examining another identical controversy in the case of Vikas Pratap Singh and Ors. v. State of Chhatisgarh and Ors. reported in AIR 2013 SC 3414 . Thus, the State authorities are required to be directed to continue the petitioners in service pursuant to their initial selection and appointment in the questioned recruitment. However, as per the ratio of Supreme Court judgments in the cases of Rajesh Kumar and Vikas Pratap Singh (supra), they will be required to be placed at the bottom of the revised list of selected candidates. Coming to the petitioners' claim for confirmation in service as per Rule 27B of the R.S.R. It is in dispute that the petitioners have completed the mandatory two years probation period required for confirmation in service as per the Rajasthan Service Rules and thus, they are entitled to be confirmed in service subject to their services being satisfactory. In view of the above discussion, the writ petitions deserve to be and are hereby allowed. Such of the petitioners who failed to make the cut off after revaluation and revision of merit list shall be ousted from the service but their names shall figure at the bottom of the list of the selected candidates. The respondents shall also conduct an exercise to confirm the petitioners in service as per Rule 27B of the R.S.R. upon their having completed the mandatory two years probation period satisfactorily. In this eventuality, they shall be confirmed in service upon completion of two years probation period from the date of joining service and shall be entitled to receive all admissible service benefits as per the relevant Rules." 6. Learned counsel for the respondents have drawn attention of this Court to the reply filed whereby the learned counsel for the respondents has pointed out that in the matter Satyendra Kumar (supra), the ground of challenge was 30% reservation in favour of female candidates and since, it was found on examination that more female candidates then 30% have been given appointment, therefore, the department had to act accordingly. 7. Learned counsel for the respondents has further pointed out that the department has selected 255 female candidates against the 30% reservation which would amount to 221 posts. The horizontal reservation application in accordance with the aforementioned judgment, would result in ouster of about 34 candidates. 8. Learned counsel for the respondents has defended the action of the respondents by virtue of her reply by submitting that these 34 female candidates were in excess of the horizontal reservation of 30% and were therefore, required to be terminated so as to lawfully accommodate the candidates who would be lawfully entitled to take their place. Learned counsel for the respondent further, could refute the judgment passed by this Court in Umesh Singhal (supra) and Ashok Kumar Naval (supra). 9. After hearing learned counsel for the parties and perusing the record of the case as well as the precedent law cited at Bar, this Court is of the opinion that the petitioners had joined in pursuance of the advertisement dated 26.11.2011 after giving into merit on or before 24.07.2012 or the list revised thereafter. Thus, the petitioners are those candidates who lawfully entered into the fray of selection process and were duly selected on their respective posts of Pharmacist after they are coming into the appropriate merit. 10. This Court also finds that such candidates who came into the category of selected candidates on the post of Pharmacist were either selected in the first selection process or subsequently in the revised list. These selected candidates, the petitioners were protected by the order passed by Hon'ble Court at Jaipur Bench in Umesh Singhal (supra), whereby the Court had category held that the services of these persons shall be protected and they shall be continued at the bottom of the seniority list. 11. This Court also finds that such protection was also reiterated by in the matter of Ashok Kumar Naval (supra), whereby this Court has directed the respondents to protect the services of the petitioners. This Court also finds that the reference of the matter of Vikas Pratap Singh and others v. State of Chattisgarh reported in [AIR 2013 SCC Page 3414] , whereby the Hon'ble Court has laid down the precedent law that all those persons who have entered into the said services without any concealment, fraud, misrepresentation or adopting the illegal means and have rendered considerable period of services are entitled to be protected. The relevant portion of the precedent law reads as under: "25. Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon reevaluation and deprived them of any sympathy from this Court irrespective of their length of service. 26. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent-State for more than three years and undoubtedly their termination would only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list. 27. Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation. 28. We clarify that their appointment shall for all intents and purpose be fresh appointment which would entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment. 29. The order passed by the High Court shall stand modified to the above extent. Appeals disposed of. 12. Thus, the petitioners who are lawfully selected candidates and who have rendered considerable services from 2012 or thereafter, till today are protected by the judgments of Umesh Singhal (supra) and Ashok Kumar Naval (supra) and therefore, the mandate of the precedent law, the respondents could have ousted them. 13. The submissions made by learned counsel for the respondents that the ouster is on account of judgment passed by this Court in the matter of Satyendra Kumar (supra) cannot be accepted as in the matter, this Court has only directed the respondents to apply 30% horizontal reservation in terms of the precedent law laid down by the Hon'ble Apex Court in the matter of Rajesh Kumar Daria (supra). 14. On bare reading of this order, it nowhere provides for ouster of the candidates who have already rendered long services and have been given appointment strictly in accordance with law after going through the selection process. 15. In light of the aforesaid observations, the present petitions are allowed, the impugned orders are quashed and set aside and the respondents are directed to continue the petitioners on the post of Pharmacist in terms of the judgment of Umesh Singhal (supra) and Ashok Kumar Naval (supra) and the precedent law of Vikas Pratap Singh (supra) by not ousting them. The petitioners who have been appointed against the vacant post shall be continued in service but will be placed below the candidates who are now in the revised merit list placed higher than them in the merit. It is made clear that the judgment passed by the Hon'ble Court at Jaipur Bench in the matter of Satyendra Kumar (supra) shall be given effect by creating extra posts, if so required."
(3.) In light of the afore-quoted judgment the writ petition is disposed of in the same terms.;