M.N. Bhandari, J.

1. Aggrieved by the judgment of the learned Single Judge, these appeals have been preferred by the Rajasthan Public Service Commission (hereinafter referred to as the RPSC, for short) and in few cases by the State of Rajasthan. The brief facts relevant to the present case are that the appellant - RPSC issued an advertisement on 18.8.2004 for selection to the post of Lecturer in various subjects, for the post of Lecturer (English), 271 posts were advertised. Appellant - RPSC, after holding test and interview, declared the result of the selected candidates. So far as the petitioners-respondents are concerned, they were kept in the reserve list, which was consist of 38 candidates. Aforesaid reserve list was issued on 16.9.2006. On publication of the main select list, 77 posts remained unfilled due to non-availability of the reserved caste candidates, thus at this stage, few petitions were filed claiming appointment on the post of Lecturer (English). The main thrust of the claim was that as per the existing rule prior to 10.10.2002, unfilled vacancies of reserved caste has to be filled up by normal procedure, however, respondent-appellant failed to apply the rule and erroneously kept petitioners in the reserve list. This is more so when the Government issued a circular clarifying the position that any vacancy prior to 10.10.2002 would be dealt with as per the unamended rule, the claim of the petitioners-respondents was accepted by the learned Single Judge holding that the petitioners should have been placed in the main list as unfilled reserved vacancies are of the period prior to amendment in the rules by notification dated 10.10.2002 and accordingly, directions were given to consider the candidatures of the petitioners for appointments.

2. These appeals are filed by the appellants - RPSC and State of Rajasthan mainly on the ground that 77 unfilled vacancies have wrongly been considered of the period prior to 10.10.2002. In fact, these 77 vacancies are of subsequent years. Other ground raised is that reserve list cannot be operated after the expiry of its life.

3. Mr. S.N. Kumawat, learned counsel for appellant-RPSC submits that without verification of the facts as to whether unfilled vacancies were of a period prior to amendment in the rules i.e. 10.10.2002, learned Single Judge presumed all the unfilled vacancies of a period prior to 10.10.2002 and issued directions accordingly. The judgment based on presumptions needs to be set aside, the other argument raised herein is that reserve list cannot be operated after expiry of its life more so in regard to few petitions which were filed subsequent to the judgment in the cases of Vijay Choudhary and Yashwant Kumar i.e. on 22.5.2008. The appellants herein preferred review petitions in two cases but those were also dismissed and no challenge to those orders have been made. The petitioners, who had approached this Court after lapse of time should not have been given same relief as was given to the earlier petitioners, namely, Vijay Choudhary and others and Yashwant Kumar and others.

4. Learned counsel appearing for the petitioners-respondents, on the other hand, submits that the arguments raised by learned counsel for the appellants are not available now in the light of the affidavit given by the appellants pursuant to the directions of this Court. In the affidavit, so submitted by Smt. Geeta, Assistant Secretary and Officer Incharge, shows that out of 77 unfilled vacancies of reserved caste, 54 vacancies are of the period prior to 10.10.2002 and 23 vacancies are of subsequent period. In the aforesaid background, it becomes clear that 54 unfilled vacancies of reserved caste were of the period prior to 10.10.2002, thus it should have been filled by normal procedure. The rule position prior to 10.10.2002 provides unfilled vacancies of reserved caste to be filled by normal procedure i.e. by appointing candidates from open categories and equivalent vacancies to be carry forward for the next year. The appellants herein failed to do so, thus erroneously kept the petitioners-respondents in the reserve list. In fact, 54 candidates should have been placed in the main list in order of merit. It is now a case where the candidates having erroneously taken in the reserve list, claim right of consideration for appointments against unfilled reserved vacancies of the period prior to 10.10.2002. The main ground taken by the appellants that all the 77 unfilled vacancies of reserved caste were of a period after 10.10.2002 is found to be incorrect in the light of the affidavit filed by there own officer. Learned counsel further submits that they have not asked for direction to operate the reserve list against unfilled vacancies, rather claim is in the light of the pre-amended rules. In view of aforesaid, appellants have erroneously taken it to be a case seeking direction to operate reserve list. This is more so when even in the impugned judgment, a direction has been given by the learned single Judge to place all the petitioners in the main list. In the light of aforesaid argument, no case has been made out by the appellant calling for interference in the impugned order.

5. It is lastly urged hat few petitioners, who approached the Court after the first judgment, cannot be ousted to get relief. In fact, decision in the first writ petition, is a relief in rem by its implication though have been granted to the petitioners therein. Following judgments of the Honble Apex Court so as of this Court were cited to substantiate the aforesaid arguments:

(1) : 2006 (9) SCC 406 - K.T. Verappa and Others vs. State of Karnataka & Others

(2) : 2006 (2) SCC 747 - State of Karnataka and Others vs. C. Lalitha

(3) D.B. Special Appeal (Writ) No. 90/2004 - Dr. Sneh Saiwal and Others vs. State of Rajasthan and Others

(4) : (2000) 3 SCC 699 - State of U.P. vs. Ram Swarup Saroj

(5) D.B. Civil Special Appeal No. 605/1998 - State of Rajasthan and Others vs. Subhash, Chandra Sharma and Others

(6) 1991 (2) WLC 409 - M.L. Jain and 7 Others vs. State of Rajasthan and Others

(7) : 1990 (1) RLR 182 - Secretary, RPSC, Ajmer vs. Om Dutt Sharma and Another

(8) : (1979) 1 SCC 572 - State of Kerala vs. Kumari T.P. Roshana and Another

6. We have considered rival submissions of the parties and scanned the matter carefully.

7. Perusal of these appeals shows that the main ground urged is that 77 unfilled vacancies are not of the period prior to 10.10.2002 rather all these vacancies are of the period subsequent to 10.10.2002, thus to be dealt with by the amended provisions and not by the unamended provisions. The affidavit now filed pursuant to the directions of the Court shows factual position otherwise, in para 10 of the affidavit, it has been admitted that out of 77 unfilled vacancies of reserved caste, 54 vacancies were of the period prior to 10.10.2002. For ready reference para 10 of the affidavit filed by Smt. Geeta, Assistant Secretary and Officer Incharge is quoted hereunder:-

10. That the RPSC has left 77 vacancies as unfilled. The bifurcation details of these 77 unfilled vacancies are given at S. No. 9 which demonstrate that 6 vacancies of S.C. (Female) category, 21 S.T. (Male) category and 27 S.T. (Female), in total 54 vacancies remained unfilled prior to 10.10.2002 and the 10 vacancies of S.C. (Female), 10 vacancies of S.T. (Male) and 3 vacancies for S.T. (Female), in total 23 vacancies out of the current year vacancies remained unfilled, bifurcation and details of which are given at S. No. 9 in the Schedule.

8. In the light of aforesaid, it has come out that at least 54 unfilled vacancies of reserved caste are of the period prior to 10.10.2002. The question now comes as to whether appellants were under an obligation to fill up those vacancies by normal procedure or not. For this purpose, relevant rule i.e. Rajasthan Educational Service Rules, 1970 as was existing prior to 10.10.2002 is quoted hereunder:-

7. Reservation of vacancies for the Scheduled Caste and the Scheduled Tribes-

(1) Reservation of vacancies for the Scheduled Caste and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and promotion.

(2) The vacancies so reserved for promotion shall be filled in by (seniority-cum-merit and merit).

(3) In filling the vacancies so reserved the eligible candidates who are members of the Scheduled Castes and the Scheduled Tribes shall be considered for appointment in the order in which their names appear in the list prepared for direct recruitment by the Commission for post falling in its purview and by the Appointing Authority in other cases, and the Departmental Promotion Committee or the Appointing Authority, as the case may be in the case of promotees, irrespective of their relative rank as compared with other candidates.

(4) Appointment shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst Scheduled Caste and the Scheduled Tribes as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure, and an equivalent number of the additional vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total, and thereafter such reservation would lapse.

9. Perusal of the sub-rule (4) shows that unfilled reserved vacancies should be filled by normal procedure (from general caste etc). Thus, in view of aforesaid and in the light of the affidavit submitted by the appellant in these appeals, it becomes clear that at least 54 unfilled vacancies should have been filed up by normal procedure. The appellants herein have failed to do so, thus their action becomes in violation of the Rules more so when the State Government issued an administrative order on 22.6.2004 clarifying the position that if any reserved vacancy is of the period prior to 10.10.2002, then has to be filled up as per the unamended rules. In the light of aforesaid, the action of the respondents has to be declared as illegal. It is a case where only 38 selected candidates exist in order of merit as against 54 unfilled reserved vacancies, thus in our considered opinion, the respondents were under an obligation to include 54 candidates in the main list to be filled up by normal procedure and if equivalent number of selected candidates are not available and it is only 38 candidates have qualified the selection, then all of them should have been dealt with as per procedure provided for filing up the vacant posts of a period prior to 10.10.2002. The appellants now cannot asked for perpetuation of their illegality on the ground that few petitioners approached this Court after the first judgment. It is not a case of absence of clarification by Government regarding application of amended rules, thus action of the appellants cannot be said to be bona fide denying relief to the petitioner filed writ after first judgment. The Government had issued clarification in the year 2004 itself i.e. much prior to declaration of the result, thus appellants failed to carry out their action as per the rules and clarification given by the Government itself.

10. Since the first issue has been decided holding that the petitioners-respondents, rather 38 candidates, should have been placed in the main list, question of a direction to operate reserve list does not exist so as the ground that this Court has given direction to operate reserve list after its expiry. Perusal of the judgment of the learned Single Judge does not show the aforesaid. Thus, argument of the appellants is not applicable to the facts of this case. This is more so when even learned Single Judge had observed that petitioners should have been included in the main list. The argument of the appellant could have been appreciated if their main ground of challenge would have been found factually correct, holding all 77 vacancies of a period subsequent to amendment. The main ground taken by the appellants in all these appeals is that unfilled 77 reserved vacancies are of a period subsequent to 10.10.2002. Aforesaid ground got demolished by the appellants themselves in view of the affidavit of their own officer. This Court directed appellants to file an affidavit showing details of year-wise vacancies and other relevant facts. This was precisely to verify factual aspect and now on verification, it has come that 54 unfilled reserved vacancies are of a period prior to 10.10.2002. The main ground urged by the appellants in their appeals goes contrary to the facts at least to the extent of 54 unfilled reserve vacancies. Now, herein a case where only 38 selected candidates exist, who should have been shown in the main list, if the appellants would have acted in accordance with the rules, more specifically, as per clarification by the State Government through its circular dated 22.6.2004. Thus, due to default on the part of the appellants to carry out their action as per rules cannot be to the disadvantage of any candidate, who is otherwise eligible for right of consideration for appointment. In view of aforesaid, it is not a case where a direction has been issued to operate reserve list but it is a case where action of the appellants is held to be illegal in not placing candidates in the main list to the extent of unfilled vacancies of reserved caste. Accordingly, second argument raised by the appellants cannot be accepted.

11. It is lastly urged by the appellants that few writ petitions were filed at a belated stage i.e. subsequent to the first judgment in other writ petitions, hence, those petitioners should not have been given relief. Aforesaid argument has been considered by us in the light of the several judgments cited by learned counsel for the respondents. The ratio of those judgments is that eligible candidate should not be non-suited for grant of relief if he similarly placed. It is true that in few judgments, the Honble Apex Court even denied the relief to those candidates who approached the Court at a belated stage.

12. In view of aforesaid, argument has to be decided after taking note of the facts of this case. It is a case where vacant post of Lecturer yet exists in view of fact admitted by learned counsel for the appellants during the course of hearing and it is not unknown that on account of non-availability of Lecturers, the studies of the students suffer. In such a situation as to whether grant of relief and appointment of the petitioners after considering their candidature in the light of the direction of this Court would be in the interest of the Government and the students at large or would be against their interest can be simply answered holding that it is otherwise in the interest of the State and the students.

13. In the background aforesaid, if the judgments of the Honble Supreme Court denying the benefit to the similarly placed candidates is considered, then we find that those were the cases where vacancies were largely filed up leaving no room for other candidates, thus relief granted was indeed kept limited to those who approached in time. The factual scenario herein is just reverse. In the light of aforesaid, we are unable to accept the argument raised by learned counsel for appellants. Mr. S.N. Kumawat, learned counsel for appellants, had fairly conceded that necessary exercise regarding vacancy position was undertaken at the time of filing of the affidavit only to come out as to whether there were any vacancies prior to 10.10.2002. The said exercise was not undertaken by the State authorities at the relevant time. This shows total failure of the State Government to undertake their action as per rules and Mr. Kumawat is fair enough to accept the aforesaid. In the aforesaid background also, now denying relief to the petitioners would mean allowing perpetuation of illegality by the appellant-Government. This is more so when factual position goes against them to the extent of at least 54 unfilled reserved vacancies. In view of aforesaid, even if all the 77 vacancies are not taken to be reserved unfilled vacancies prior to 10.10.2002, then also 54 vacancies out of it are of prior period. Thus, to clarify the judgment of the learned Single Judge, it is held that the appellants should have filled 54 unfilled reserved vacancies by the normal procedure by placing equivalent number of candidates in the main list or if less selected candidates are available then to the extent, selected candidates were available. In the present case, number of such candidates are 38 only. In view of discussion made above, we do not find any merit in the appeal rather main ground pertaining to vacancy position prior to 10.10.2002 goes against the appellant in the light of their own affidavit. These appeals are, accordingly, dismissed.