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Dr. V.S. Choudhary Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 583 of 1983
Judge
Reported in1985WLN(UC)1
AppellantDr. V.S. Choudhary
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredState of Punjab and Ors. v. Saroj Devi and Ors.
Excerpt:
rajasthan medical service (collegiate branch) rules, 1962 - rule 22--name in selection list of commission-held, it does not confer right for appointment--government may not make appointment if not found suitable.;under rule 22, proviso the inclusion of the name in the selection list by the commission does not confer any right on such a candidate for appointment. further if the government finds that the candidate is not suitable in all other respects, it may not appoint him. the order appointing non-petitioner no. 3 as lecturer in bio chemistry is required to be issued by non-petitioner no 1.;(b) rajasthan medical services collegiate branch) rules, 1962 - rule 22 & constitution of india--article 226 writ--maintainability of--appointment order not issued in favour of non petitioner no...........in bio chemistry. at the time of filing of the writ petition, the petitioner was holding this post. two posts of lecturer in bio-chemistry were advertised by the commission vide advertisement no. 3/82/83 dated july 14, 1982. the qualifications mentioned in the advertisement were as follows:post-graduate degree in biochemistry, m,d. ph.d., bsc. m.sc. or m.r. c.p. (with bio-chemistry as a special subject) or equivalent qualificationpreference will be given to m.d. in bio chemistry (non-medical teachers in bio-chemistry should preferably have a doctorate in the subject):two years experience as demonstrator/tutor in bio-chemistry in a medical college. 'post-graduate' qualification other than those awarded by the university of rajasthan should be recognised by the medical council of.....
Judgment:

S.K. Mal Lodha, J.

1. Petitioner Dr. V.S. Choudhary has filed this writ petition under Article 226 of the Constitution on February 25, 1983 praying that State of Rajasthan (non-petitioner No. 1) may be restrained from giving appointment to Amar Singh, Senior Demonstrator in Bio-Chemistry, R.N.T. Medical College Udaipur (non-petitioner No. 3) to the post of Lecturer in Bio-Chemistry for accommodating him (non-petitioner No. 3). Certain other reliefs were also sought by the petitioner.

2. The Rajasthan Public Service Commission (for short 'the Commission'), Ajmer has been impleaded as non-petitioner No. 2.

3. The petitioner passed his Post-graduate degree of M.D. in Bio-Chemistry which he obtained from the Faculty of Medicine University of Rajasthan. He entered his services in the Government of Rajasthan as Senior Demonstrator of Physiology on 17-1-1974. That appointment was temporary and was given to him on being selected by the Central Selection Committee, At the time of his appointment, he had passed the M.B.B.S. Degree examination. The Postgraduate degree in M.D. for Bio-Chemistry was obtained by him in 1975. The post of Senior Demonstrator was advertised by the Commission and the petitioner applied therefore Vide order (Anx.) dated May 19, 1976, he was given regular appointment thereto. Subsequently, he was promoted on urgent temporary basis to the post of Lecturer in Bio Chemistry. At the time of filing of the writ petition, the petitioner was holding this post. Two posts of Lecturer in Bio-Chemistry were advertised by the Commission vide advertisement No. 3/82/83 dated July 14, 1982. The qualifications mentioned in the advertisement were as follows:

Post-Graduate Degree in Biochemistry, M,D. Ph.D., BSc. M.Sc. or M.R. C.P. (with Bio-Chemistry as a Special subject) or equivalent qualification

Preference will be given to M.D. in Bio Chemistry (non-medical teachers in Bio-Chemistry should preferably have a Doctorate in the subject):

Two years experience as Demonstrator/Tutor in Bio-Chemistry in a Medical College. 'Post-Graduate' qualification other than those awarded by the University of Rajasthan should be recognised by the Medical Council of India.

These qualifications are contained in Bulletin (Anx. 3) issued by the Commission. The petitioner applied for the post. Before the petitioner could be selected by the Commission, Dr. R.C. Gupta and Amar Singh (non-petitioner No. 3) were selected for the post. The list of selected candidates was placed on the notice Board by the Commission on February 16, 1983. The petitioner has stated that soon after the same is received by non-petitioner No. 1, it is likely to issue appointment order of non-petitioner No. 3 as Lecturer in Bio-Chemistry.. The appointment of non-petitioner No. 3 is likely to result in the reversion, he being the junior most. The petitioner has further stated that for the reasons mentioned in paras 7, 8, 9 and 10 of the writ petition, he (non-petitioner No. 3) should not have been selected by the Commission for being posted as Lecturer in Bio-Chemistry. That led to the filing of the writ petition for the principal relief mentioned here in above.

4. A show cause notice as to why the writ petition be not admitted, was issued on February 25,1983. On February 28, 1983, learned counsel appearing for the parties submitted that the writ petition may be disposed of at the admission stage.

5. On behalf of the Commission (non-petitioner No. 2) a reply to show cause notice was filed on April 18, 1983 contesting the writ petition on various grounds.

6. It was stated that non-petitioner No. 3 is qualified and entitled to be appointed on the post of Lecturer on the basis of the selection made by the Commission to the post of Lecturer in Bio-Chemistry and that the petitioner has no right to continue on the post as he has been rejected by the Commission. Non petition No. 3 filed the reply to the writ petition along with photostat copy of Certificate No. 33465 (Ex. R1) dated July 15, 1982 issued by the University of Rajasthan. It has further been stated that non-petitioner No. 3 possessed the prescribed qualifications for the post of Lecturer in Bio-Chemistry as per Rajasthan Medical Service (Collegiate Branch) Rules 1962 (for short the Rules here in) and also qualifications advertised by the Commission, which are laid down by the University of Rajasthan. The selection of non-petitioner No. 3 by the Commission was sought to be justified.

7. Non-petitioner No. 3 also filed separate reply. It was submitted that the petitioner had no right to continous on the post of Lecturer, for, he has not been found suitable by the Commission and he does not possess the requisite qualification.

8. Separate re-joinders to the replies filed by non-petitioners No. 2 and 3, were filed by the petitioner.

9. On January 2,19,84, a preliminary objection was raised on behalf of non-petitioner No. 3 that the writ petition is premature.

10. The arguments were concluded on the preliminary objection and the case was posted for consideration of the said objection. Having considered the preliminary objection, I have reached the conclusion that the writ petition is pre-mature and, therefore, it is not necessary to hear further arguments on merit for the purpose of admission.

11. In order to appreciate the preliminary objection, it will be relevant to consider the relevant rules.

12. Rule 7 deals with recruitment. Part IV of the Rules provides procedure for direct recruitment.

Rule 9 is as follows:

Inviting of applications--Applications for direct recruitment to posts in the service shall be invited by the Commission, by advertising the vacancies to be filed, in the official Gazette and in such other manner, as may be deemed fit,:

Provided that while selecting candidates for the vacancies so advertised, the Commission may, if intimation of additional requirement not exceeding 50% of the advertised vacancies, is received by them before the selection, also select suitable persons to meet such additional requirement.

Rule 19 deals with scrutiny of applications. Rule 20 is as under:

Recommendations of the Commission:--The Commission shall prepare a list of the candidates whom they consider suitable for appointment to the posts concerned arranged in the order of merit and forward the same to Government

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 Government within 5 'months from the date on which the original list is forwarded by the Commission to -Government.

The next important rule is Rule 22 dealing with 'selection by Government.' It reads as under:

Selection by Government.--Subject to the provisions of Rule 7 Government shall select candidates who stand highest in the order of merit in the list prepared by the Commission under Rule 20;:

Provided that the inclusion of a candidate's name in the list confers no right to appointment unless 'the State Government is satisfied after such inquiry as may be considered necessary that the candidate is suitable in all other respects for appointment to the Service.

It is, thus, clear that no right is conferred on a candidate on the ground that his name has been included in the list by the 'Commission. The Government may decline to appoint a person who has been selected by the Commission if after inquiry, he is not found suitable in all other respects.

13. Mr. B.L. Purohit, learned counsel for non-petitioner No. .3 contended that no order has been passed by non petitioner No 1 appointing non-petitioner No. 3 as Lecturer in Bio-Chemistry as yet and so, the petitioner has no right to file the writ petition restraining non-petitioner No. 1 from issuing an appointment order in favour of non-petitioner No. 3, for, the Commission has merely selected Dr. R.C. Gupta and non-petitioner No. 3 for the post of Lecturers in Bio-Chemistry and until and unless an order is passed by non-petitioner No. 1 appointing non-petitioner No. 3, the petitioner has no cause of action. In these premises, it was contended by Mr. Purohit that the writ petition is premature. He placed reliance up Kunda S. Kadam V. K.K. Soman : AIR1980SC881 .

14. Mr. Mridul, on the other hand, strongly opposed the preliminary objection and submitted that as the selection made by the Commission is final and non-petitioner No. 1 is bound to make appointment in accordance with the recommendations made by the Commission, the petitioner can maintain the writ petition against the selection of non-petitioner No. 3 by the Commission for the post of Lecturer in Bio-Chemistry when it has issued the list of selected candidates and placed it on the notice Board on 'Feb. 6 1983. He contended that the appointment of non-petitioner No. 3 by non-petitioner No. 1, will result in reversion of the petitioner to the post of Senior Demonstrator as he is the junior most. In this connection, the placed reliance on Miss Kamlesh Bhardwaj etc. v. State of Raj and Anr. 1982 RLR 638 and Krishi Upaj Mandi Samiti Jodhpur v. State of Rajasthan and Ors. 1982 RLR 762.

15. I have carefully considered the authorities cited by the learned counsel appearing for the petitioner and non-petitioner No. 3.

16. In Kunda S. Kadam's case : AIR1980SC881 , the Public Service Commission recommended the name of appellant Mrs. Kunda S. Kadam. The power of appointment vested in the Municipal Corporation. According to the procedure, after the Municipal Corporation takes the decision to appoint a particular candidate, the confirmation of the Government is required and on such confirmation being given a regular appointment is made. Before a decision could be taken by the Corporation, the writ petition was filed The writ petition was dismissed in limine by the learned single Judge of the 'Bombay High Court. An appeal was filed which was allowed and the Division Bench took the view that the appellant did not possess one of the qualifications, namely '10 years' administrative experience and quashed recommendation itself. In appea1 the Supreme Court held that time bad not arrived for the court to adjudicate upon merits and that the writ petition itself was pre-mature. Krishna Iyer, J. speaking for the Court, observed as under:

The normal procedure should have been for the recommendation of the Public Service Commission to be considered by the Corporation. It was open to the Municipal 'Corporation to accept the recommendation or not to accept the recommendation. The learned Attorney General, appearing for the Corporation says that it was open to the Corporation to ask for other names and make its own choice. We are not called upon to state what the powers of the Corporation in such a situation are. 'It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own 'view of the matter. We mention all this only to emphasise that 'it was too early for a writ petition to be entertained and decided on the merits

In view of the conclusion to which the Supreme Court arrived at, the judgment of the Division Bench of the High Court of Bombay was set aside and the Supreme Court left the matter at large. It further observed as under:

This means that the recommendation of the Public Service Commission will be back before the Municipal Corporation of Greater Bombay. According to law the Corporation will take its decision and thereafter in due course it will go for confirmation to the State Government. If any party is aggrieved by the appointment made it will be time enough for such aggrieved by the party to challenge the appointment.

Under the Rules, on the (recommendation of the Commission, the order of appointment on the post of Lecturer in Bio-Chemistry has to be passed by the Government. Under Rule 22, proviso the inclusion of the name in the selection list by the Commission does not confer any right on such a candidate for appointment. 'Further if the Government 'finds that the candidate is not suitable in all other respects, it may not appoint him. The order appointing non-petitioner No. 3 as Lecturer in Bio-Chemistry, is required to be issued by non-petitioner No. 1. Admittedly, at the time of filing of the writ petition, no order appointing him (non-petitioner No. 3) as Lecturer in Bio Chemistry has been issued and so the writ petition is, pre-, mature. Kunda S. Kadam's AIR 1980 SC 881 is fully applicable.

17. Now, I consider the decisions relied on Mr. M. Mridul, learned counsel for the petitioner....

18. It was observed by, a learned Single Judge of this Court in Miss Kamlesh Bhardwaj's case 1982 RLR 638 as under:

The third objection is equally futile. The selections list have not only been published but it has been also sent to the Government. Mr. Singhvi's contention that the Government may still consider the selection list and appoint or not appoint the petitioners is not sustainable. The reason being that once the recommendation of the Public Service Commission to the Government is sent on the basis of merit, the Government has got no powers of veto as held by me in Hari Narayan's case. All that the Government can consider is whether their character or antecedents are such which can disentitle them from their appointment inspite of their merit. There is a very far fatched possibility of one or two persons being not appointed of the entire list because they may have some bad adverse antecedent either of conviction or of such activities which may disentitle them. That being so, by and large the recommendation of the Public Service 'Commission contained in the selection list are final and all that' the Government requires is to make an enquiry about the conduct and then issue formal orders of appointment. In view of this it cannot be said that writ petitions have been filed at premature stage.

A Division Bench of this Court in Krishi Upaj Mand's case 1982 RLR 762, observed as under:

Although it cannot be disputed that the selected candidates merely because their names were included by the selection committee in the list of selected candidates, were not conferred with any right of appointment to the post for which they were selected, yet it is well settled that the appointing authority could not refuse to accept the 'recommendations of the selection committee merely on arbitrary grounds. The appointing authority could not refuse to accept the recommendations of the selection committee simply on the ground that the persons recommended were not acceptable to the appointing authority or that a person rejected should have been recommended. These matters are to be adjudged by the selection committee and if the recommendation of the selection committee is arbitrarily refused by the appointing authority, then, the aggrieved person can certainly submit that his legal right has been infringed.

The learned Judges relied on Dr. Ram Singh v. University of Sagar and Ors. 1973(2) SLR 153. 9. Here, it will be useful to refer Stale of Haryana v. Subhash Chander Murwaha and Ors. : (1973)IILLJ266SC wherein their Lordships of the Supreme Court observed that it was not obligatory upon the Government to fill in all the vacancies and it was open to the Government to decide as to how many appointments shall be made. However, their Lordships held that two-fold restraint was placed on the power of the State Government to make appointments, namely, (i) that it shall not make the appointments by travelling outside the list of selected candidates; and (ii) that it shall make the appointments strictly in the order the candidates have been placed in the list of selected candidates published by the Public Service Commission and the subject to the aforesaid two restraints, the State Government could appoint lesser number of persons than the posts advertised.

20. State of Haryana's case : (1973)IILLJ266SC was followed in State of Punjab and Ors. v. Saroj Devi and Ors. 1981 Lab. I.C. 257, wherein, it was held that a mere selection could not give any indefeasible right to the selected candidate to claim appointment to the post in the absence of any order having been passed to that effect by the appointing authority itself. Miss Kamlesh Bhardwaj's case 1982 RLR 638 and Krishi Upaj Mandi's case 1982 RLR 762 were neither noticed nor considered in Kunda S. Kadam's case AIR 1980 SC 881. Apart from that, the aforesaid two decisions of this Court are distinguishable In this petition, I am concerned with the rules contained in Part IV of the Rules.

21. Having regard to the, language of Rule 22 of the ' Rule's and keeping in view the reasons given in Kunda S. Kadam's case : AIR1980SC881 , I am of opinion that the petitioner cannot maintain the writ petition until and unless an order of appointment is issued in favour of non-petitioner No. 3 by the Government. Mere, selection of non-petitioner No. 3 by the Commission does not entitle the petitioner to file the writ petition challenging the selection made by it.

22. The writ petition cannot be entertained.

23. The writ petition is, accordingly, dismissed as Pre-mature without any order as to costs.


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