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Judgment
Ajay Rastogi, J.—1. Instant batch of writ petitions has been filed jointly by the petitioners who had appeared in combined competitive examination conducted by the Rajasthan Public Service Commission for recruitment and appointment under the Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (for short, Rules 1999) in various years of selection process questioning the validity of R. 20(2) of the Rules 1999.
In the alternative, it has been prayed that the Scheme of Rules may be interpreted in the manner which may serve the purpose and object for which the combined process is being held under the Rules 1999 and since common question is involved, with the consent of the parties, we have taken the facts of CWP-10770/2015 Damodar Lal v. State of Raj. & Anr. as a lead case.
The Rajasthan Public Service Commission published an advertisement dt. 6.2.2012 holding selection for various State & Subordinate Services under the Rules 1999.
As alleged in the petition, the petitioners appeared in the preliminary examination followed with main examination & interview and finally have been declared successful but by virtue of R. 20(2) of Rules 1999 validity of which is under challenge in the present batch of writ petitions, deprived from being considered for appointment, it envisages that if a person, selected under sub-rule(1) and appointed to a Post/Service concerned in accordance with the relevant Service Rules against the vacancies of a particular year for which the Combined Competitive Examination was conducted by the Commission in accordance with these Rules, does not join on the post offered to him/her or has resigned or expired in any subsequent year, in that event the said vacancy shall be treated as fresh vacancy.
Since on account of restriction of R. 20(2) of the Rules 1999, good number of vacancies for the last three consecutive years i.e. 2007, 2008 & 2010 remain vacant and according to counsel for the petitioners sub rule (2) of R. 20 of the Rules 1999 has no nexus with the object sought to be achieved.
In the alternative, their further grievance is that R. 17 has to be read in tandem with R. 20 of Rules 1999 which may serve the purpose and the advertised vacancy as much as possible but the procedure which the Govt./RPSC has adopted in implementing the recommendations made by the RPSC appears to be faulty and it has been jointly prayed that at least this Court may direct the Commission and the State Govt. that the candidates who have successfully competed in the examination every endeavour has to be made by the state govt. to fill the advertised vacancies as much as possible.
Reply to the writ petition has been filed by the respondents and as regards validity of R. 20(2) of the Rules 1999 is concerned, counsel for the respondents has brought to our notice that the self same question has been examined before the main Seat at Jodhpur in DBCWP-12698/2012 Manvender v. State of Rajasthan & Ors. vide judgment dt. 4.1.2016 and after examining the same, validity of R. 20(2) has been upheld.
Counsel for respondents submits that in absence of any provision of preparing the reserve/waiting list whatever mechanism is adopted but once offer is being made for whatever the reason may be either on account of non joining or left or resigned at the later stage, the post is treated to be vacant & be filled in subsequent selection process and this has been stringently followed by the respondents and submits that nothing further required to be examined by this Court in the light of judgment of Division Bench of this Court dt. 4.1.2016, present batch of writ petitions deserves to be dismissed.
At one point of time, the matter was heard at length and detailed order was passed by us dt. 6.10.2015 and we consider appropriate to quote the order dt. 6.10.2015 which reads ad infra-
"After hearing counsel for the parties for sometime, we need certain clarification from the State Government regarding implementation of the recommendations made by the Commission u/R. 17 of the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1999 while selected candidates are considered for appointment u/R. 20 of the Rules.
As it reveals from the Scheme of Rules, 1999 that after the candidates finally undergone the process of selection the Commission shall prepare for each service a list of the candidates arranged in the order of merit u/R. 17(1) and sent to the State Government and also be published for general information as provided u/R. 17(3) of the Rules and after such list of the candidates prepared by the Commission for each service is made available with the State Government such selected candidates are considered for appointment u/R. 20(1) of the Scheme of Rules against the number of posts specified in the advertisement issued u/R. 8 and subject to reservation of posts in favour of the candidates belonging to the respective categories keeping in view the mandate of R. 17 in the order of preference given by the candidates in their application form for different services/posts.
Counsel for the State is directed to seek instructions & inform as to whether list of the candidates arranged in the order of merit prepared by the Commission for each service is sent to the Government and published for general information & what is the procedure being followed by the State Government while offering appointment to the candidates invoking R. 20(1) of the Scheme of Rules at the same time may also inform as to whether in the last three recruitments held under the Scheme of Rules, 1999 how many advertised vacancies remained unfilled because of non-joining or other reasons as contemplated u/R. 20(2) of the Scheme of Rules.
List on 12-10-2015, as jointly prayed, along with D.B. Civil Writ Petition No. 12421/2015."
In compliance of order dt. 6.10.2015, additional affidavit has been filed by the respondents and it has been stated that after the final result prepared by the RPSC being published, copy of list is directly sent to Department of Personnel indicating the names of the candidates, category and merits are specifically mentioned and DOP after scrutinizing the application forms of all the probable candidates called for their medical examination and for their character verification and after receiving the reports of Medical Examinations and character verification, the Department of Personnel allotted the various State/Subordinate services to the successful candidates according to their merit and preference against the available vacancies keeping in view the policy of reservation.
It has also been stated that prior to the present recruitment of 2012 in the preceding 3 recruitments year i.e. 2007, 2008 and 2010, the Department of Personnel has allotted various Departments to the candidates according to their merit and preference and those who do not join in their respective Department no separate list is maintained by the DOP but after direction of this Court, data have been collected and chart has been prepared which is enclosed in the form of Ann.A/1, it indicates that in the year 2007, 2008 & 2010, in State service 31, 31, & 42 have not joined in the respective years of selection and at the same time, in Subordinate service in 2007, 2008 & 2010, 86, 73 and 101 have not joined and remain unfilled and taking note of R. 20(2) of Rules 1999, unfilled posts of State & Subordinate Service were treated vacant and carry forward to the subsequent selection.
We consider appropriate to quote the computed chart of three previous selection years of State and Subordinate Combined Competitive Examination that indicates total number of vacancies of the department and candidates who did not join in the respective years in State & Subordinate service which reads ad infra-
In view of the computed chart of vacancies which remain vacant may be for one or other reason but the fact is that the candidates who are in queue could not be considered for appointment because the persons who were offered appointment did not join on the post and such vacancy by virtue of R. 20(2) is treated to be filled and forwarded for the subsequent selection process and treated as fresh vacancy.
The Scheme of Rules 1999 has been framed in exercise of power conferred u/Art. 309 of the Constitution and primary object appears to be that such of the State/Subordinate service, where the eligibility & the criteria of selection is the same, combined process of selection be held and appointments can be made as per merit & preference of the candidate. Rules 5, 7, 9, 11, 15, 17 & 20 of Rules 1999 reads ad infra-
"5. Frequency of examinations and provision for not holding an examination in a particular year-
The combined Competitive Examination for recruitment to the posts in the services specified in Schedule I and Schedule II, shall be held at least once a year unless the Government in consultation with the Commission decide that a Combined Competitive Examination for any of these posts shall not be in any particular year.
Inviting of applications- On requisitions having been received from the Government for specified posts to be filled by direct recruitment in Services mentioned in Schedule-I and/or Schedule-II, the Commission shall call for applications for permission to appear in the examination by publishing a notice to that effect in the official gazette or in such other manner as the Commission may deem fit.
Form of application-
(1) the application for appearing at the preliminary examination shall be made in the format approved by the Commission.
(2) Those candidates who qualify for interview shall be subsequently required to submit more detailed information in their application in the printed form approved by the Commission and obtainable from the Secretary to the commission on payment of such fee, if any, as may be fixed by the Commission from time to time.
Admission to the Examination- (1) Any person may apply to be admitted as a candidate for appearing at the preliminary Examination for any one or more of the Posts/Services specified in the Notice for which he/she is eligible and in such case only one application and one payment of fee shall be sufficient. Those of the candidates who qualify at the main examination to be summoned by the commission for an interview shall be required to indicate in the printed application form their preference for the Posts/Services for which he/she would like to be considered for allotment on the date of interview of the concerned candidates.
Scheme of Examination, Personality and Viva-Voce Test-The competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and Main Examination as per the scheme specified in Schedule-Ill. The marks obtained in the Preliminary Examination by the Candidates, are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (Category wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for lower range will be admitted to the main Examination.
Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthan Culture. However, for selection to the Rajasthan Police Service Candidates having ''C'' Certificate of NCC will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidates;
Provided that the Commission, on intimation being received from the Government before declaration being result of the Preliminary Examination may increase or decrease the number of vacancies advertised."
Rule 17 of 1999 Rules relates to recommendation of the Commission by RPSC and it reads as under:--
"(1) The Commission shall prepare for each service a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate. If two or more of such candidates obtain equal mark in the aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service;
Provided that the candidates (s) belonging to the other Backward Classes/Scheduled Castes/Scheduled Tribes, who get placement in the merit list as a result of special concession given to them in terms of ''age'' and ''fees'' or such other concession granted by the Government shall be counted against the reserved vacancies determined for the candidates belonging to the other Backward Classes/Scheduled Castes/Scheduled Tribes irrespective of the marks obtained by them.
(2) The Commission, while giving weightage to the preference for the posts in the different services expressed by a candidate in his/her application, may recommend him/her for appointment to any post in any such service for which it considers him suitable.
(3) The list compiled under this rule shall be immediately sent to the Government and also be published for general information."
Selection by the Government or by the Appointing Authority- Subject to the number of posts specified in the notice issued under rule 8 and subject to reservation of posts in favour of candidates belonging to the Other backward Classes/Scheduled Castes/Scheduled Tribes, non-gazetted Employees, Woman candidates, Physically Handicapped persons, and Ministerial Staff in respect of posts included in Schedule-I and Schedule-II, as the case may be, the Government or the Appointing Authority, as the case may be, shall select candidates who stand in the order of merit in the list prepared by the Commission u/r. 17 strictly in accordance with the order of preference given by the candidates in their application forms for different Services/Posts;
Provided that-
(1) it is satisfied after such enquiry as may be considered necessary that such candidates in all other respects for appointment to the posts in the service;
(2) the order of preference once exercised by a candidate shall not be changed.
(2) If a person, selected under sub-rule(1) above and appointed to a Post/Service concerned in accordance with the relevant Service Rules against the vacancies of a particular year for which the Combined Competitive Examination was conducted by the Commission in accordance with these Rules, does not join on the post offered to him/her or has resigned or expired in any subsequent year, in that event the said vacancy shall be treated as fresh vacancy."
Scheme of Rules 1999 clearly envisages that the combined competitive examination for recruitment to the posts in the services specified in Schedule I & Schedule II for State and Subordinate Service is to be held at least once in a year unless the government in consultation with the commission decides that a Combined Competitive Examination for any of these posts shall not be held in any particular year but the experience shows that the selections are made after 2-3 years and instantly after 2010 no selections have been finalized.
Syllabus for examination has been referred to under R. 6 read with Schedule III and applications are invited u/r. 7 and each candidate eligible has to submit his application form for appearing in examination followed with viva voce test and R. 9(2) clearly envisage that those candidates who qualify for interview shall be subsequently required to submit more detailed information in their application in the printed form approved by the Commission and R. 11 provides admission to the Examination whereby any person may apply to be admitted as a candidate for appearing at the preliminary examination for any one or more of the Posts/Services specified in the Notice for which he/she is eligible and such candidates who qualify has to first appear in the viva voce test and as per R. 15 the Competitive Examination has to be conducted by the commission in two stages i.e. preliminary examination and main examination and those qualify in the preliminary examination are admitted to the main examination and those who qualify in the main examination with the benchmark which the commission may fix in their discretion is being finally summoned for viva voce and marks which are secured/awarded to candidate in the interview be added to the marks obtained in the Main examination by each such candidate and after candidates are required to appear before the Medical Board and their character verification and the selection reaches to the final stage the commission u/r. 17 of the Scheme of Rules has to prepare list of such candidates for each service to be arranged in order of merit of the candidate as disclosed by the aggregate marks finally awarded to each candidate and at the same time, if two or more of such candidates obtain equal marks in aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service keeping in view the policy reservation for Other Backward Classes/Scheduled Castes/Scheduled Tribes as notified in the advertisement giving weightage to the preference for the posts in different services which the candidate has expressed in his/her application recommending him/her for appointment to any post in any such service for which it considers him suitable and that list has to be sent to the State govt. and it shall simultaneously be published for general information u/R. 17(3) of the Rules 1999.
R. 17 of the Scheme of Rules clearly envisages that the list of candidates arranged in the order of merit for each service has to be prepared by the Commission keeping in view their weightage of preference of the post in different service expressed by the candidate in his/her application and to be recommended to the state govt. for appointment and merit list sent to the state govt. for appointment and simultaneously has to be published for general information.
According to R. 20(1) of the Rules 1999 after the candidate has been recommended for appointment by the state govt. to the post in service as per his merit & preference but failed to join under sub rule (2) of R. 20, in that event the said vacancy shall be treated as fresh vacancy. As we have already observed that a contingency which has been noticed of R. 20(2) of the Rules regarding candidate who has resigned or has expired in both the contingency i.e. the candidate failed to join duty or expired as we have already observed the vacancy stands exhausted and treated to be considered a fresh vacancy.
As regards validity of sub rule(2) of Rules 1999 is concerned, Coordinate Bench of this Court before main Seat at Jodhpur in DBCWP-12698/2012 vide judgment dt. 4.1.2016 examined its validity, operative portion whereof reads ad infra-
"For the reasons given, we are of the considered opinion that the challenge given to Sub-Rule (2) of Rule 20 of the Rules of 1999 is ill-founded. The writ petition is having no merit, hence, dismissed".
In the light of judgment referred to supra, the question in regard to validity of sub-rule (2) of Rule 20 of the Rules 1999 remains no more res integra for our consideration. However, after we have taken glance of the scheme which envisages that under all the State and Subordinate service where classification and selection are one and the same & post of State and Subordinate service are being clubbed and common selection is conducted under the Scheme of Rules 1999 and the candidate has to go through the cumbersome procedure while being finally qualified by the commission and initially he has to appear in the preliminary examination and 15 times of the number of vacancies category-wise are being called to appear in the written examination and such persons who qualify the written examination are thereafter called for interview and marks awarded in the written examination are added to the marks of viva voce examination and final merit list of the candidates is prepared by the commission for each service a list of the candidates arranged in the order of their merit and recommended to the state govt. for appointment. The basic object & purport behind the Scheme of Rules 1999 is to see that advertised vacancies are to be filled as much as possible.
After we have taken note of affidavit filed by the respondent in compliance of order dt. 6.10.2015 of which we have made a reference in detail, we are of the view that the existing Scheme of Rules 1999 (R.17 & 20 in particular) deserves to be examined afresh keeping the present perspective in view of the paramount consideration that the advertised vacancies are to be filled as much as possible and at the same time the method & mode has to be adopted in minimizing the number of unfilled vacancies and that may give a right of fair consideration to the candidates who have gone through the cumbersome procedure of selection and are in queue to be considered for appointment.
We hope and trust that the respondent will look into the existing Scheme of Rules 1999 for its better & effective implementation & in fulfillment of the object and purport of the Scheme of Rules 1999, in the interest of the candidates who have participated in the selection process & at least may get a chance in seeking appointment against the advertised vacancies.
Consequently, the petitions are disposed of with the observations made. Copy of the order be sent to the Chief Secretary, Govt. of Raj. for necessary compliance.