Judgment:
A.K. Parihar, J.
1. An advertisement dated 03.10.1994 was issued by Rajasthan Public Service Commission for the posts of Assistant Engineers (Civil/Mechanical/Electrical) for three departments namely; P.W.D., P.H.E.D. and Irrigation, under the provisions of Rajasthan State Engineering Service (Direct Recruitment by Combined Competitive Examination) Rules, 1991 (hereinafter to be referred as the 'Rules of 1991'). In the said advertisement 65 posts were notified for Assistant Engineer (Civil) in Public Works Department. The last date for submission of application forms was 23/11/1994 which was extended upto 17/01/1995. The written examination was held from 27/6/1995 to 29/6/1995.
2. The appellant being eligible for the post, also applied in pursuance to the advertisement issued by the Commission and was allowed to appear in the written Examination. The result of the written Examination was declared on 23/12/1995 and successful candidates were called for interview which were held from 25/3/1996 to 9/4/1996. The name of appellant did not find place in the list of successful candidates.
3. Before interviews were held, the State Government sent amended requisition vide order dated 22/2/1996 and the posts were increased to 105. Accordingly, after interviews the Commission sent a list of 105 candidates to the State Government.
4. The appellants filed a writ petition before this Court on 07/06/1996 praying therein that selections made by the Commission against additional 40 posts may be declared illegal and the same may be quashed and set aside. Further, holders of these 40 additional posts in pursuance of the selection made by the Commission may be declared usurper and the respondents be directed to make fresh recruitment against these 40 posts as per Rules.
5. A reply was filed on behalf of the respondents. The Commission, in its reply, stated that Initially 65 posts were notified in the advertisement dt. 3/10/1994. However, before the process of selection was completed, the additional amended requisition was received from the State Government and as per provisions of the Rules of 1991 the Commission was competent to select candidates and sent select list as per requirement made by the State Government. In the present case, the additional requisition was received on 22/2/1996, much prior to the interviews held for the said posts and, as such, no illegality has been committed by the Commission while sending the names of 105 selected candidates. It has further been averred that the appellant had been allowed to appear in the written examination. However, his name did not find place in the successful candidates and, as such, he has no right to challenge the selections.
6. The learned Single Judge, after hearing both sides, dismissed the writ petition vide order dt. 20.8.96, hence this appeal.
7. Mr. Prahlad Singh, counsel for the appellants, has vehemently argued that the whole action of the Rajasthan Public Service Commission in making selections for additional 40 posts is illegal and unjustified. His main contention is that the Commission could have made selections only for the number of posts advertised and if there would have been any additional requisition, the Commission should have issued fresh advertisement. Mr. Prahlad Singh has also submitted that even if the Commission could have made selections Against 105 posts, then more candidates should have been called for the interview looking to the increased number of posts.
8. Counsel for the appellant has replied upon judgments of Apex Court in the case of Hoshiar Singh v. The State of Haryana and Ors. reported in : (1994)ILLJ562SC ; Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors. reported in : (1996)ILLJ1103SC ; State of Bihar and Ors. v. The Secretariat Assistant Successful and Examinees Union 1986 and Ors., reported in : AIR1994SC736 ; Gujarat State Dy. Executive Engineers' Association v. The State of Gujarat and Ors., reported in : (1995)ILLJ1047SC and Prem Singh and Ors. v. Haryana State Electricity Board and Ors. with connected appeals reported in : (1996)IILLJ786SC .
9. On 10.03.1997 when the case came up for admission the counsel for the appellant prayed for time to make an application for impleading the selected candidates as parties to the appeal. However, in spite of opportunity having been given, no steps were taken by the counsel. Further time was sought which was not granted by the Court. Moreover, the selected candidates were also not parties to writ petition.
10. After having carefully considered the submissions made by counsel for the appellant, we have gone through the entire record as well as the provisions of relevant Rules also.
11. Before dealing with the merits of the present case, we would like to refer the judgments, cited by the counsel for the appellant. In Hoshiar Singh's case (supra) requisition was sent for six posts of Inspectors of Police to the Subordinate Services Selection Board, Haryana. The advertisement was issued by the Board. Thereafter, a revised requisition was sent for 8 posts of Inspector of Police. However, the selection Board in stead of sending names of eight selected candidates forwarded the names of 19 candidates for appointment to the post. On a quarry, made by the Apex Court, it was submitted that there was no further requisition after the revised requisition for 8 posts. Under these circumstances, the Apex Court held that since the requisition was for 8 posts of Inspectors of Police, the Board was required to send its recommendation for 8 posts only. The Board, on its own could not have recommended names of 19 persons for appointment, though the requisition was only for 8 posts. The appointment on the additional posts, on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, as such, appointment in pursuance of such selection on additional posts not sustainable.
12. The decision in the case of Ashok Kumar(supra) was in regard to the appointment from the reserve list and the Apex Court held that appointment of the persons kept in the waiting list by the respective recruitment Boards to the vacancies arising subsequently without being notified for recruitment, is unconstitutional.
13. In the case of State of Bihar (supra) an advertisement was issued for inviting applications for the post of Assistants in the Secretariat and other connected offices of the Government of Bihar. The vacancies were of the year upto 1985-86. Examinations were held in November, 1987 and the results were declared in July, 1990. The selector list was made by the Board, however, the appointments were not made by the State Government. The successful candidates, through their Union, approached the High Court of Patna by way of filing writ petition with the prayer that candidates brought on the merit list were entitled to be appointed against the vacancies as existing on the date of publication of the result in the year 1990. The High Court directed that the vacancies upto 1991 may be filled from the list of selected candidates who had been empanelled after the declaration of the result in 1990. On S.L.P. been filed before the Apex Court while upholding the judgment of the High Court to the extent of filling of vacancies which existed till 31.12.88 the Apex Court issued further directions for holding selections afresh for the vacancies occurring thereafter.
14. The Gujarat State Dy. Executive Engineer's Association's case (supra) was also in regard to the life of waiting list. The Court held that a waiting list prepared in an examination conducted by the Commission, does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidate does not join, then the person from the waiting list may be pushed up and be appointed in the vacancy so caused and if there is some extreme exigency the Government may, as a matter of policy decision, pick up persons in order of merit from the waiting list till it survives. The Apex Court observed that the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed, does not appear to be sound. The Court further observed that this practice may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.
15. In Prem Singh and Ors. (supra) the matter was in regard to filling up of 62 vacant posts of Junior Engineers by direct recruitment. However, as against 62 posts, the Haryana State Electricity Board appointed 158 persons. The Apex Court held that selection process could be started for clear vacancies and anticipatory vacancies, but not for the future vacancies and, as such, 87 appointments made against the future vacancies were held invalid. However, in furtherance to the facts, the Apex Court found that there were 25 additional vacancies which could be termed as anticipatory vacancies, as such, 25 appointments from these additional vacancies were protected. In para 25 of the judgment, the Apex Court has observed as under:
From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies, but not for future vacancies. If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted In such cases would depend upon the facts and circumstances of each case. (emphasis added)
16. In the present case the selections were made under the provisions of the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 read with the Rajasthan State Engineering Services (Direct Recruitment by Combined Competitive Examination) Rules, 1991. Under the scheme of Rules of 1991, there is written examination and thereafter, candidates who obtain such minimum qualifying marks in the written test, as may be fixed by the Commission in their discretion, are called for interview with certain further restrictions in regard to the minimum percentage of marks. Marks of written examination as well as viva-voce examination (interview) are added for preparation of the final merit list.
17. Under Rule 16 of the Rules of 1991, the Commission is required to prepare a list of the candidates arranged in order of merit of the candidates as disclosed, by the aggregate marks finally awarded to such candidates. Proviso 1 to Rule 16 provides that the Commission shall not recommend any candidate of the State Engineering Services, who has failed to obtain a minimum of 33% marks in the personality and viva-voce examination and a minimum of 50% marks in the aggregate. Proviso 2 further provides that the Commission on requisition, further recommend the names of the candidates in addition to the advertised vacancies against additional vacancies intimated by the Government before the final result of the combined competitive examination is declared by the Commission. Proviso 2 to Rule 16 is relevant in the present matter in dispute and is quoted here as under:
16(ii) the Commission, on requisition, further recommend the names of the candidates in addition to the advertised vacancies against additional vacancies intimated by the Government before the final result of the Combined Competitive Examination is declared by the Commission.
18. Admittedly, initially the advertisement was issued for 65 posts. In all, 6665 candidates applied and were allowed to appear in the written examination. Interview were held from 25th March, 1996 to 9th of April, 1996 after declaration of the result of the written examination. However, much before that, the State Government had already sent amended requisition on 22.2.1996 and the posts were increased to 105 and, as such, the Commission was competent to send the names of 105 selected candidates as per provision of Rules 16 as referred to above. The counsel for the appellant could not challenge proviso (ii) to Rule 16, as referred to above. Moreover, in the advertisement itself there was a clear condition that the posts so notified may be increased or decreased.
19. The judgments, cited by the counsel for the appellant, which have been referred to above, are not applicable and relevant in the facts and circumstances of the present case because in the present case there has been a revised/amended requisition by the State Government, much prior to completion of process of selection and further, there has been a provision under the Rules under which the Commission could recommend the names of selected candidates for additional requisition if the same is received before the completion of the process of selection. The validity of said provision under the Rules of 1991 has not been challenged so far.
20. The writ petition and appeal, filed by the appellant are liable to be dismissed on other grounds also. Firstly, the appellant having applied for the post and after being allowed to appear in the written examination could not succeed in the same and, as such, he is not entitled to challenge the whole process of selection. The contention of Mr. Prahlad Singh that some more candidates would have become eligible after the last date of submission of applications and could have competed against the existing vacancies, is also of no substance because in the present case, the appellant has been allowed to appear in the competitive examination.
21. There is yet another ground for dismissal of writ petition as well as the present appeal. The appellant has not impleaded selected candidates as parties. The persons appointed on the additional 40 vacancies are admittedly necessary parties. Their appointments are sought to be challenged and in absence of necessary parties, the appointments cannot be quashed and set aside. Though, an opportunity was given to the appellant to implead such candidates as parties, however, the counsel for the appellant failed to avail the same and, as such, the appeal is liable to be dismissed on this ground also.
22. Yet another half hearted submission of Mr. Prahlad Singh is that in case of selection on a additional vacancies, the Commission should have called for interview more candidates. This submission is also of no substance. It is for the Commission to choose and evolve its own method of selection in accordance with the provisions of the relevant Rules. It is for the expert body to decide as to how many candidates to be called for interview looking to the circumstances and exigencies of each case. It should be left with the total discretion of the Commission to choose the best method in the interest of the services and this Court cannot sit in appeal over the judgment and discretion of the Commission. No hard and fast rule can be made in regard to the ratio and proportion of the candidates to be called for interview.
23. In view of the discussions, made above, we find no merit in the appeal and the same is dismissed.