GOPESH GUPTA Vs. STATE OF RAJASTHAN AND OTHERS

JUDGEMENT

(1.) :- The petitioners, who had appeared in the Rajasthan State Subordinate Combined Competitive Examination, 1989 and were placed at merit Nos. 5 and 6 respectively in the selection list of non-gazetted employees, have filed both these writ petitions for quashing the order dated 27.12.90 by which two posts out of 7 posts, which were advertised for filling-up the vacancies for gazetted employees, have been transferred to the Rajasthan Police Service and Rajasthan Commercial Taxes Services. The petitioners have challenged this order essentially on the ground that once 7 posts were advertised for filling up the vacancies by the gazetted employees in which category they had appeared, the same could not have been reduced to five after the petitioners qualified and were placed in the merit list at Nos. 5 and 6. It is their grievance that if the two posts has not been reduced, they would have had a chance to get the appointment in the category of gazetted employees. The petitioners have further stated that originally 7 gazetted posts were to be filled from the category of non-gazetted employees as per the advertisement, but later on two posts were diverted to the Rajasthan Commercial Taxes Service and the Rajasthan Police Service by the impugned order of 1990 which should be quashed for once the posts were to be filled from the category of non-gazetted employees, the same could not have been diverted to be filled up from the category of Rajasthan Police Service or from the scheduled caste category of Rajasthan Commercial Taxes Service. According to the petitioners' understanding these diversion by earmarking these posts to be filled up by scheduled caste candidate in Rajasthan Commercial Taxes Service and the other by general category candidate in the Rajasthan Police Service amounts to diversion of the posts which were advertised and therefore, the petitioners are aggrieved as it is their grievance that once they were selected, this change could not have been introduced and allowed to take effect as this does not amount to decrease but diversion which was not permissible even as per the advertisement.

(2.) On the aforesaid averments the respondents were summoned by this Court by issuing a show cause notice in response to which it was stated on behalf of the respondents that it was specifically incorporated in the advertisement itself that the vacancies advertised by the Rajasthan Public Service Commission were liable to be decreased or increased during the process of selection by the State Government and hence the petitioners should not be allowed to challenge the same justifying the changes. It was explained, that although initially 7 posts were advertised which were reserved for the non-gazetted employees quota, it was later thought proper to divert one post to the Rajasthan Police Service as per the requirement and thus one post to be filled up from the category of non-gazetted employees, was reduced. Similarly, one more post was diverted to the Rajasthan Commercial Taxes Service to be filled by a candidate of scheduled caste category. The net result of this exercise was that two posts out of 7 posts, which were earlier earmarked to be filled from the category of non- gazetted employee, were reduced to five, but the petitioners and their counsel for peculiar reason is not treating it as a reduction of the posts which were advertised as it was argued by the counsel for the petitioners that this is not a decrease of the posts, but is a diversion of the posts to the other departments and thus, the petitioners should not be held bound by the conditions in the advertisement which clearly stated that the advertised posts could be decreased or increased at the sole discretion of the State Government. What has been done by the respondent-State in this case is clearly a reduction of the quota of the non-gazetted employees decreasing it from 7 to 5 as two posts were diverted to the Rajasthan Police Service and the Rajasthan Commercial Taxes Services to be filled by the reserved category and general category candidates and this was clearly done as in the opinion of the State, there was need for such posts in the Police Department and the Rajasthan Commercial Taxes Department. Merely because 7 posts were advertised to be filled from the category of non-gazetted employees does not grant an unassailable right to the petitioners to assert that two posts could not have been diverted to the Police Department and the Rajasthan Commercial Taxes Department by urging that this is not reduction but an illegal diversion of the posts. Ultimately when two posts have been diverted to the Police Department and the Rajasthan Commercial Taxes Department, as per the need and requirement, the ultimate result is the same meaning thereby that two posts from the quota of non gazetted employees have been reduced to 5 and in the advertisement itself the condition was laid down that the posts could be decreased or increased at the discretion of the State which never was challenged as arbitrary and hence, the petitioners' assertion that it is illegal or that they were taken unawares, cannot be accepted as a correct approach of the petitioners.

(3.) The counsel for the respondent-State have also relied on the ratio of the authority of the Supreme Court reported in 1993 (Supp.)(2) SCC 600 : [1993(1) SLR 422 (SC)] Jai Singh Dalal Vs. State of Haryana and others in support of their assertion that the Government has authority and power to withdraw the notification without completing the process of recruitment. Although the facts of this case are not exactly identical and do not really cover the facts which are prevalent in this case, the ratio of this case can be of help only to the extent of recognising the authority of the State in filling up the vacancies or not to fill-up the vacancies and this case thus helps the respondents' version to this extent, but even if it were to be held that this case does not really apply in the facts & circumstances of this case the fact remains that in the instant matter the advertisement itself settles the controversy wherein it was laid down specifically that the posts could be decreased or increased at the sole discretion of the State Government which condition was never challenged as arbitrary at any stage. In view of the declaration in the advertisement, if the quota of the non- gazetted employees for selection on gazetted posts was decreased from 7 to 5, the action can clearly be construed to be in in consonance with the terms and conditions which were already laid down in the advertisement. The grievance of the petitioners thus cannot be entertained which had been raised in these writ petitions. It is quite obvious that this theory of diversion of posts set up by the petitioners and his counsel to urge that it is distinct from the reduction of the posts is clearly an attempt to wriggle out of the condition in the advertisement by construing it that the action of the respondents does not amount to reduction, but it is only a diversion which is impermissible. The diversion also clearly has resulted in reduction and the reduction having been sanctioned in the advertisement itself, which was never challenged, the action of the respondents cannot be allowed to be questioned by the petitioners.