Ravindra Purohit and Others vs State of Rajasthan and Others

Alok Sharma, J—In the aforesaid two petitions, the petitioners seek appointment to the post of Lecturer Civil Engineer in the Department of Technical Education as per their merit in the waiting list of their respective categories against the vacancies remaining unfilled on account of the candidates in the select list offered appointment, not joining.

The facts of the case are that the Rajasthan Public Service Commission (hereinafter "RPSC") vide advertisement No. 07/2011-12 invited applications for recruitment on 62 posts of Lecturer Civil Engineer in Technical Education (Engineering) Department in the pay scale of Rs. 15,600-- 39,100. The petitioners being eligible applied. RPSC selected 62 candidates in order of merit. It also prepared a waiting list to an extent of 50% of selected candidates as per Rule 25 of the Rajasthan Technical Education (Engineering) Service Rule, 2010 (hereinafter "the Rules of 2010"). The petitioner-- Ravindra Purohit''s name was placed in the waiting list of general category at serial No. 1 and that of the petitioner-- Hukmi Chand (SBCWP No. 2940/2015) in the waiting list for SC category at serial No. 1. In the main select list of 62 candidates, one Mohammad Sarif Bhati appearing at merit No. 31 in general category declined to accept the appointment and in fact filed an affidavit to that effect. Similarly three candidates i.e. Ramesh Parihar, Devendra Singh and Vijai Kumar Sakuria offered appointment from the select list in SC category also did not join. These facts are not disputed.

Rule 25 of the Rules of 2010 provides as under:

"25. Recommendations of the Commission:- The Commission shall prepare a list of the candidates whom they consider suitable for appointment to the post(s) concerned and arrange in the order of merit. The Commission shall forward the list to the Government:

Provided that the Commission may, to the extent to 50% of the advertised vacancies, keep names of suitable candidate 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."

The case of the petitioners is that the candidates offered appointment in general category as also S.C. Category from the select list of 62 candidates not having joined and expressed their intention clearly before the expiry of six months from the date of recommendation by RPSC, it was incumbent upon the State Government to make an offer against the unfilled vacancies for appointment to the petitioners in their respective categories. It has been submitted that in the case of the petitioner--Ravindra Purohit, an application was made by him on 25.04.2014 seeking appointment to the vacant post in general category, for reason of refusal of the selected candidate, by virtue of being No. 1 in the waiting list in that category, yet to no avail. The petitioner --Hukmi Chand however made an application only on 09.02.2015 on the fact of vacancies in his category for non-joining of the selected candidate, Ramesh Parihar, Devendra Singh and Vijai Kumar Sakuria, coming to his notice. He sought appointment to the vacant post in SC category by virtue of being No. 1 in the waiting list in that category. No response emanated from the State Government. Hence these petitions. On 02.02.2015 and 27.02.2015 respectively.

Mr. Pradeep Kalwania, appearing for the petitioners has submitted that albeit it is not an indefeasible right of a candidate in the select list and for that matter in the waiting list, to be offered appointment, yet the State Government cannot arbitrarily withhold appointment without good reason. This would include those in the waiting list, subsequent to appointments having been offered to those in the select list and they having declined to join. It has been submitted that the State Government had to take a conscious decision for good reasons duly not recorded for filling up the vacancies first offered to those in the select list. Only then, those in the wait list can be denied consideration to such vacancies.

Reference has been made to the judgment of this Court in the case of Ghanshyam Singh Rathore v. The State of Rajasthan & Anr. [2010 (2) WLC (Raj.) 443 ] in support of the contention. Therein this Court held that where the respondents, having advertised 54 vacancies, called 54 candidates for interview and, out of them, two declined, until there was a conscious decision of the respondents not to fill up the advertised vacancies, they ought to have offered appointment to the next two meritorious candidates in the wait list. It was held that even the expiry of the waiting list during the pendency of the writ petition would not effect the right of those in the waiting list to be appointed to the post earlier offered to those in the select list. Counsel has also relied upon the judgment of the Hon''ble Supreme Court in the case of Purushottam Vs. Chairman, M.S.E.B. and Another, (2000) 84 FLR 295 : (1999) 9 JT 334 : (1999) 6 SCC 49 : (1999) SCC(L&S) 1050 wherein it was held that where a legal right for appointment was otherwise made out, the mere expiry of the currency of the select list could not be an obstruction for the vindication of the petitioner''s right first illegally taken away. Reference has also been made to the State Government''s own circular dated 19.07.2001 under the hand of the Secretary to the Government of Rajasthan on the subject of Direct Recruitment through Rajasthan Public Service Commission--Operation of Reserved List. Therein it has been inter alia directed by the Government that albeit a waiting list prepared in an examination conducted by the Commission does not indeed furnish a perennial source of recruitment yet it is to be operated in the contingency of any of the selected candidates not joining the post offered and in that eventuality the person from the waiting list may be pushed up and be appointed in the vacancy so caused. Counsel for the petitioners has submitted in the context of the aforesaid circular that it was the duty of the State Government and incumbent upon it to first push up the petitioners from the waiting list in the general and S.C. categories respectively on the non-joining of select candidates after they had been offered appointment by the State Government and then appoint them. It has been submitted that not having acted in terms of its own circular dated 19.07.2001, the respondent-State denied the petitioners, their legal right. And in the circumstances, to now submit that waiting list has in the meantime expired, is of no avail and upholding such an argument would be most unjust. Counsel submitted that, if the argument of the counsel for the State Government were to be accepted, it would tantamount to the State Government benefiting from its own wrongs/omissions. That this Court should not countenance. Mr. Kalwania finally submitted that in respect of a similarly situate person, one Mahipal Singh Khedar, an applicant for lecturer-ship) in physics in the Department of Technical Education also part of recruitment under advertisement No. 07/2011-12, the waiting list was operated and appointment made on 02.12.2014 much after the purported expiry of the waiting list following this Court''s direction in SBCWP No. 4896/2014 decided on 02.05.2014 to consider his case. It has been submitted that in the context of the aforesaid fact of Mahipal Singh Khedar''s appointment on 02.12.2014, it does not lie in the mouth of the respondent-State to set up a hypocritical case of the petitioners not being entitled to appointment to the vacancies on the post of Lecturer Civil Engineer with the Technical Education Department for reason of the waiting list now have lapsed.

Mr. Manu Bhargava, Government Counsel appearing for the respondents has opposed the writ petitions fundamentally on two counts. First, his submission is that what of candidates in the waiting list even those in the select list do not have an indefeasible right for appointment on the vacancies advertised. This, counsel emphatically submitted, has been long held by the Hon''ble Supreme Court as reiterated in the judgment in the case of Bihar State Electricity Board Vs. Suresh Prasad and Others, AIR 2004 SC 1724 : (2004) 3 JT 143 : (2004) 2 SCALE 698 : (2004) 2 SCC 681 : (2004) SCC(L&S) 438 : (2004) AIRSCW 3563 : (2004) AIRSCW 1260 : (2004) 3 Supreme 685 : (2004) 3 Supreme 501 . It has been then submitted that aside of the aforesaid, the petitions deserve to be dismissed also on count of the penultimate paragraph of the State Government''s circular dated 19.07.2001 which clarifies that once a fresh process of recruitment has commenced, then the whole selection process previously held lapses and if any vacancy could not be filled for any reason whatsoever, it would be liable to be filled up only through the fresh process of recruitment underway. Counsel submitted that fresh recruitment process for the post of Lecturer Civil Engineer has been commenced vide advertisement dated 22.07.2014 and in this view of the matter the petitioners are not entitled for any relief at the hands of the Court.

It has been further submitted that as far as the petitioner--Hukmi Chand is concerned, he represented to the State Government seeking appointment by virtue of being first in the waiting list of SC category on the post of Lecturer Civil Engineer only on 09.02.2015 after the waiting list had lapsed. Government counsel however conceded that the petitioner--Ravindra Purohit had approached the Government by way of an application seeking appointment on the post in question being first in the waiting list of General category on 25.04.2014 within the list''s validity of six months, as the recommendations were forwarded by the RPSC to State Government on 06.11.2013. It was submitted that in any event the writ petitions filed after the waiting list had elapsed by efflux of time have no legs to stand on and should be dismissed.

Heard. Considered.

The Hon''ble Supreme Court in the case of Surinder Singh and Others Vs. State of Punjab and Another, AIR 1998 SC 18 : (1997) 7 JT 537 : (1997) 5 SCALE 567 : (1997) 8 SCC 488 : (1997) 3 SCR 538 Supp : (1999) 1 SLJ 75 : (1997) 2 UJ 630 has held that even though a waiting list cannot be a perennial source of recruitment and the candidates in the waiting list have no vested right to appointment, yet the exclusion is not complete and would not apply "when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative." In State of U.P. Vs. Ram Sawrup Saroj, AIR 2000 SC 1097 : (2000) 3 CTC 609 : (2000) 2 JT 632 : (2000) 2 SCALE 223 : (2000) 3 SCC 699 : (2000) 1 UJ 711 : (2000) AIRSCW 779 : (2000) 2 Supreme 162 the Hon''ble Supreme Court in the facts of the case before it held that "merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled by the High Court." The Supreme Court in the said case noted that the affidavit of the Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn and filed before the Court had stated that there were 231 vacancies existing in the cadre of Munsif Magistrates and that being the factual position, the Court saw no reason as to why the direction made by the High Court be upset in appeal before it. In Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612 : (1991) 62 FLR 981 : (1991) 2 JT 380 : (1991) LabIC 1460 : (1992) 2 LLJ 18 : (1991) 1 SCALE 848 : (1991) 3 SCC 47 : (1991) 2 SCR 567 : (1991) 2 UJ 212 , the Hon''ble Apex Court has held that even though an indefeasible right to those selected for appointment cannot be attributed, yet it does not mean that the State has the licence of acting in an arbitrary manner and the decision not to fill up the vacancies has therefore to be taken bona fide for appropriate reason. Further in K. Jayamohan Vs. State of Kerala and another, AIR 1997 SC 2619 : (1997) 2 CTC 492 : (1997) 5 JT 368 : (1997) 4 SCALE 155 : (1997) 5 SCC 170 : (1997) SCC(L&S) 1140 : (1997) 3 SCR 1046 : (1997) AIRSCW 2577 : (1997) 4 Supreme 608 it has been held that though government need not fill up vacancies by those in the waiting list, yet the appointing authority must give reasonable explanation for non-appointment. The effect of the aforesaid judgments is that when candidates in the waiting list are not appointed despite vacancies and the advertised posts not being filled up they are not without legal recourse. On legal recourse being had, the appointing authority should proffer legally acceptable reasons for non-appointment of such candidates in the waiting list.

In Sri Kant Tripathi and Others Vs. State of U.P. and Others, (2001) 7 AD 427 : AIR 2001 SC 3757 : (2002) 92 FLR 297 : (2001) 7 JT 519 : (2001) LabIC 3337 : (2001) 6 SCALE 162 : (2001) 4 SCT 361 : (2001) AIRSCW 3468 : (2001) 6 Supreme 817 , it has been held that a waiting list candidate has a vested right to be considered when the selected candidate does not join and the waiting list is still in operation. In Asha Kaul (Mrs) and Another Vs. State of Jammu and Kashmir and Others, (1993) 2 JT 688 : (1993) 2 SCALE 545 : (1993) 2 SCC 573 , it has been held that even though there is no indefeasible right to appointment to the selected candidates, yet that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly as the whole recruitment exercise cannot be reduced to a farce by its arbitrary inaction. It has been held that having sent requisition to the Public Service Commission to select a particular number of candidates in different categories to vacancies advertised and thereupon vacancies having been notified, exams conducted, selection made, and communicated to the Government, the Government cannot quietly and without good reason nullify the whole exercise and tell the candidates that they have no right to appointment --unless a plausible reason is stated and made out. From R.S. Mittal Vs. Union of India (UOI), (1995) 3 JT 417 : (1995) LabIC 1775 : (1995) 2 SCALE 433 : (1995) 2 SCC 230 Supp : (1995) 2 SLJ 177 , it follows that inaction on part of the Government in not operating the waiting list for filling up vacancies without any justifiable reason deserves to be rectified by the Court in the interest of justice and credibility of the recruitment process. In Dr. Uma Kant Vs. Dr. Bhika Lal Jain and others, AIR 1991 SC 2272 : (1991) 4 JT 75 : (1991) LabIC 2222 : (1991) 2 SCALE 769 : (1992) 1 SCC 105 : (1991) 1 SCR 415 Supp : (1992) 1 UJ 134 , the Hon''ble Apex Court has held that those in the select list prepared under due process are entitled to appointment on vacancies available during the currency of such a list.

Aside of the aforesaid, I am of the considered opinion that in terms of the State Government''s circular dated 19.07.2001, it was incumbent upon the State Government to push up those in the waiting list during the period of its currency in the event of those in the select list being offered appointment not joining. The reason lies in the fact that by making an offer of appointment to those in the select list, the State Government had taken a conscious decision to make appointments to the number of post advertised and there was no subsequent contra decision not to fill up posts rendered vacant by the non-joining of those in the select list. The State Government failed to act in terms of its own circular dated 19.07.2001 and acted arbitrarily in not operating the waiting list despite vacancies obtaining. I am also of the considered view that circular dated 19.07.2001 to the extent that it provides that once a fresh process of recruitment has commenced, the previous selection process would lapse and remaining vacancies would have to be filled only through the fresh recruitment cannot stand in view of (i) the right of the candidates in the wait list to be pushed up and offered appointment when selected candidates did not join as referred to hereinabove and (ii) the right of consideration of candidates in the wait list, when those in the select list offered appointment have not joined within the currency of the waiting list which has been recognized by the Hon''ble Supreme Court.

The question that now remains to be addressed is whether the petitioners should be non-suited for reason of having approached this Court on 27.02.2015 and 02.02.2015 respectively subsequent to the expiry of waiting list in the meantime on 05.05.2014 in terms of the proviso to Rule 25 of the Rules of 2010. Effectively it has to be considered as to whether the writ petition deserves to be dismissed on the ground of laches. As far as the case of the petitioner-- Ravindra Purohit is concerned, it is an admitted fact that he approached the State Government within the currency of the waiting list i.e. on 25.04.2014 albeit he approached this Court only on 02.02.2015. The petitioner--Hukmi Chand approached the State Government on it coming to his knowledge on 09.02.2015 that selected candidates in the reserved SC category had not joined and then approached this Court on 27.02.2015.

Government counsel submits that no matter what the state of law with regard to the right of consideration of a candidate in the waiting list, the writ petitions are liable to be dismissed only for the reason of the petitioners not having approached this Court before the waiting list lapsed. Reference in support of the contention has been made to the judgment of the Hon''ble Supreme Court in the case of State of Orissa and Another Vs. Rajkishore Nanda and Others etc. etc., (2010) 126 FLR 441 : (2010) 6 JT 33 : (2010) 6 SCALE 126 : (2010) 3 SLJ 48 . There is no doubt that Rajkishore Nanda (Supra) does seem to indicate that without anything more a waiting list having lapsed in terms of the obtaining rules, a petition at the instance of the candidate/s in the waiting list seeking appointment against the vacant post/s is liable to be dismissed. However that is the conclusion of the Hon''ble Apex Court. No reasoning apparently underlies the conclusions. As held in Bachan Singh and Others Vs. State of Punjab, AIR 1980 SC 267 : (1980) CriLJ 211 : (1979) 4 SCC 754 : (1979) 3 SCC 727 : (1980) SCC(Cri) 580 : (1979) SCC(Cri) 830 : (1980) 1 SCR 645 : (1979) 3 SCR 1193 : (1979) 11 UJ 811 --a general principle laid down in a judgment is not the ratio of the case but the ratio decidendi of a decided case, is the reason on which the question before the Court has been adjudicated. It is well settled that the ratio of a judgment has to be understood in context of the facts situation obtaining in a particular case as held by the Hon''ble Apex Court in Air India Cabin Crew Association and Others Vs. Union of India (UOI) and Others, (2011) 12 SCALE 637 . In the context of the aforesaid state of law, a reading of Rajkishore Nanda (Supra) indicates that it was decided in an entirely different factual matrix. For detailed reference to the facts before the Hon''ble Supreme Court in the aforesaid case, it would be profitable to reproduce para 19 & 20 thereof:

"19. As the appointments had been made as per the select list prepared in 1995 and selection process came to an end, there was no occasion for the Tribunal to entertain the Applications in 1997, 1998 and 1999 for the simple reason that once the number of vacancies determined are filled (emphasis mine), the selection process came to an end, no further appointment could be made from 1995 panel. The purpose of making the list of double of the vacancies determined is to offer the appointment to the persons from the waiting list in case persons who are offered appointment do not join. (emphasis mine) But it does not give any vested right in favour of the candidates whose names appeared therein.

It appears from the Judgment of the Tribunal that Rule 11(1) of the Rules, 1985 did not provide originally to prepare the list double the number of determined vacancies and it was only for preparing the list containing the names equal to the number of vacancies advertised/determined. In such a fact-situation, the select list could have been prepared only containing 33 names i.e. equivalent to the number of vacancies determined. In such a fact-situation, selection process would come to an end automatically whenever 33 candidates are appointed. (emphasis mine) However, if the appellant had prepared a list double the number of vacancies determined, that would not create any vested right in favour of the respondents. Thus, Tribunal committed grave error issuing direction to offer appointments to all the left over candidates."

Such a situation as obtaining before the Hon''ble Supreme Court in Rajkishore Nanda (Supra) does not obtain in the case at hand. The facts are wholly distinct. For one, unlike in Rajkishore Nanda (Supra), Rule 25 of the Rules of 2010 provides for preparation of a waiting list equal to 50% of the select list. Second, all the vacancies in the case at hand had not been filled from the select list. Further, the State Government under its circular dated 19.07.2001 specifically on the subject of Operation of Reserved List in case of Direct Recruitment through Rajasthan Public Service Commission clarified that a waiting list was operative for the contingency of any of the selected candidate not joining, in which eventuality "the person from the waiting list may be pushed up and be appointed in the vacancy so caused." Thus on some candidates in the select list both in general category and S.C. category for appointment to the post of Lecturer Civil Engineer not accepting appointment offered by the State Government at the time when the waiting list was operative, the petitioners as number one in the waiting list of general and SC category respectively had a right to be pushed up and appointed to the vacancies so caused. Further the State Government in respect to the same advertisement for recruitment of Lecturers for various subject had operated the wait list for Lecturers in Physics as in the case of Mahipal Singh Khedar. Also no conscious decision was taken by the State not to fill up seats vacant on the post of Lecturer Civil Engineer after they were offered to select list candidates and were not accepted. It is also admitted that no recruitment to the post of Lecturer Civil Engineer has been done on the vacant seats of 2011-12 in the subsequent years. On the legal position enunciated by the Hon''ble Supreme Court with regard to the rights of the candidates in the waiting list being considered for appointment, the petitioners had a right of consideration. In N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, AIR 1990 SC 1233 : (1991) 5 JT 282(1) : (1990) 2 LLJ 456 : (1990) 1 SCALE 659 : (1990) 3 SCC 157 : (1990) 2 SCR 239 : (1990) 1 UJ 670 the Hon''ble Supreme Court has held that a candidate has a vested right of consideration (emphasis mine) if the operative rule so provides for his consideration. Under the proviso to Rule 25 of the Rules of 2010 read with the State Government circular dated 19.07.2001 and the state of law enunciated by the Hon''ble Apex Court, the petitioners at No. 1 in the waiting list of the respective categories thus had a vested right to be considered for appointment to the vacant posts and the State Government an obligation to do so. Non-consideration conferred on the petitioners a cause of action.

This Court exercising equitable extraordinary jurisdiction cannot turn the petitioners away only for the reason of the petitioners with a vested right of consideration, having filed the petitions subsequent to the expiry of the waiting list in terms of the proviso to Rule 25 of the Rules of 2010. The reason lies in the fact that knowledge of the vacancy obtaining, for reason of those in the select list offered appointment not joining, was not available with the petitioner --Hukmi Chand, while the petitioner--Ravindra Purohit''s application filed during the currency of the wait list was pending consideration with the State Government. To cast a burden on those in the waiting list to keep track of who in the select list had not joined would be an impossible task. And then to exclude them for not knowing when a selected candidate has not joined and having failed to approach the Court before expiry of the waiting list would be extremely unjust. Contrarily it was incumbent upon the State Government under its circular dated 19.07.2001 to requisition the RPSC to send the names of those in the waiting list equal to those who had refused offer of appointment. It is nobody''s case that the status of the vacancies arising from refusal of selected candidates on the post of Lecturer Civil Engineer was put in the public domain. The knowledge was with the State Government alone albeit the petitioner Ravindra Purohit appears to have enhanced upon the said fact and moved an application to the State Government for his consideration as the first in the waiting list in general category on 25.04.2014.

The question which thus arises for consideration of this Court is as to whether the State Government should in the circumstances be allowed to take advantage of its own wrong and whether the non-interference of this Court, in the facts situation obtaining, would fly in the face of its equitable extraordinary jurisdiction and its duty to interfere ex debito justitiae. I am of the considered view that the rights of the petitioners at serial No. 1 in the waiting list of general category and SC category respectively for consideration for appointment in the circumstances detailed hereinabove cannot be destroyed on the assumption that their cause of action arising from the arbitrary inaction of the State Government evaporated with the lapsing of the waiting list. Accepting a contention to the contrary would entail equating the cause of action with the period of waiting list and would be quite untenable as the two are clearly distinct concepts and ideas in law. A cause of action once triggered in law has its own dynamics and proceedings based thereon would be required to be evaluated, aside of their merit, on the issue on laches where the jurisdiction of the constitutional court is invoked under Article 226 of the Constitution of India.

The Hon''ble Supreme Court in the case of Royal Orchid Hotels Limited and Another Vs. G. Jayarama Reddy and Others, (2011) 4 RCR(Civil) 613 : (2011) 11 SCALE 239 : (2011) 10 SCC 608 : (2011) 11 SCR 701 has held that the principle underlying the rule of laches--which is not a mandatory rule of law but a matter of exercise of discretion--is that one who is not vigilant and does not seek the courts intervention within reasonable time from the accrual of the cause of action or the alleged violation of legal and constitution right is not entitled to relief under Article 226 of the Constitution of India. The purpose is not to foreclose assertion and enjoyment of a right in law but the reason for refusal of a belated claim is the potential of third party rights in the meantime crystallizing, to destroy which at the instance of an indolent petitioner would not be cogent reason enough as the unexplained delay could render interference by the Court inequitable. The real test to invoke laches thus is to see whether the delay is inordinate and without justification and whether any parallel rights have been created in the intervening period. The test is not confined to the physical running of time unless the delay is inordinate. I am of the considered view that the petitioners approaching this Court on 27.02.2015 and 02.02.2015 respectively in the facts of the case did not entail their cause of action arising from the arbitrary non-consideration of their case by the State Government despite its own circular dated 19.07.2001 and the obtaining state of law being negated and the petitioners being barred from their right to invoke the equitable jurisdiction of this Court under Article 226 of the Constitution of India. At this stage, it is important to note as admitted by counsel for the respondents that recruitment to the post of Lecturer Civil Engineer for the subsequent year has not commenced and the vacancies of the year 2011-12 still obtain.

In my considered opinion, the case law on limiting the rights of those in the wait lists developed with the object of preventing waiting lists becoming a perennial source of recruitment even in respect of vacancies of subsequent years. The object of the Court has never been to stymie the rights of those in the wait list for consideration for appointment on vacancies which were advertised more so when the selected candidates despite offers made by the appointing authority refused to join their posts during the validity of the wait list. It is well settled that those in the waiting list are also selected candidates though lower in the order of merit vis a vis those in the select list. In Gujarat State Dy. Executive Engineers'' Association Vs. State of Gujarat and Others, (1994) 3 JT 559 : (1995) 1 LLJ 1047 : (1994) 2 SCALE 866 : (1994) 2 SCC 591 Supp : (1994) 3 SCR 983 : (1994) 3 SLJ 5 the Hon''ble Apex Court held that waiting list as much list of selected candidates as the main select list. Further as held by the Hon''ble Apex Court in Asha Kaul (Mrs.) (Supra) those selected after due process cannot be abandoned by the appointing authority on its whims and caprice without any good reason being proffered. I am of the considered view that non-appointment of the petitioners in the waiting list--at No. 1 of their respective categories, without good reason despite vacancies obtaining to the post in issue is thus palpably arbitrary and contrary to Article 14 of the Constitution of India.

More pointedly, on the issue of appointment of a candidate in the waiting list to a vacant post in the recruitment process to which the waiting list related, the Hon''ble Supreme Court in the case of State of Jammu & Kashmir and Others Vs. Sat Pal, AIR 2013 SC 1258 : (2013) 2 JT 530 : (2013) LabIC 1125 : (2013) 2 SCALE 256 : (2013) 11 SCC 737 : (2013) 2 SCT 250 : (2013) 114 SLJ 341 : (2013) AIRSCW 1026 : (2013) 1 Supreme 759 held that even though the waiting list issued in respect of recruitment to the post of Junior Engineer (Civil) Grade-II had expired in May, 2008, yet Sat Pal who had first claimed a right of appointment to the post in issue as highest in the waiting list in the S.C. category in SWP No. 1156/2009, was entitled to appointment as to deny appointment would be "a denial of a legitimate claim of an innocent citizen." It was consequently directed that the respondent-Sat Pal be appointed to the post of Junior Engineer (Civil) Grade-II.

It cannot also be denied that it is the duty of the Courts to do justice and for the purpose where warranted invoke equity. Invoking equity, the Hon''ble Supreme Court in the case of RBF Rig Corporation, Mumbai Vs. The Commissioner of Customs (Imports), Mumbai, (2011) 186 ECR 1 : (2011) 2 JT 489 : (2011) 2 SCALE 271 : (2011) 3 SCC 573 : (2011) 2 SCR 691 : (2011) AIRSCW 1155 : (2011) AIRSCW 4844 : (2011) 8 Supreme 674 : (2011) 1 Supreme 757 held that the guiding principle in the adjudication of all cases before the Court is the promotion of justice and the prevention of injustice. A similar view has been taken by the Hon''ble Supreme Court in Food Corporation of India and Another Vs. SEIL Ltd. and Others, AIR 2008 SC 1101 : (2008) 2 CLT 850 : (2008) 2 CTLJ 561 : (2008) 2 JT 54 : (2008) 1 SCALE 437 : (2008) 3 SCC 440 : (2008) 1 UJ 202 : (2008) AIRSCW 932 .

The State Government cannot be allowed in its naked arbitrariness to decide as to when or when not to operate a waiting list. In the instant case, the waiting list was operated in respect of the same advertisement in the case of a Lecturer in the subject of Physics. That aspect of the matter was suppressed by the State Government in its reply to the writ petition and has only been brought to the notice of this Court by the counsel for the petitioner and remained unrebutted.

Consequently, both the writ petitions are allowed. The respondents are directed to send a requisition to the RPSC for appointment of the petitioners to the post of Lecturer Civil Engineer in general category and S.C. category respectively within a period of ten days from the receipt of a certified copy of this order. On receipt of the requisition, RPSC is directed to make recommendation in term of the merit position of the petitioners in the waiting list in their respective category within a period of ten days following. On receipt of recommendation and on verification necessary as per the practice of the State Government and on the petitioners then being found eligible, they be considered for appointment on the post of Lecturer Civil Engineer within fifteen days thereafter.