State Adding Seats Few Months After Onset Of Recruitment Process But Not Revising Eligibility Cut-Off Date Against 'Equal Opportunity': Rajasthan HC

In a matter concerning recruitment of compounders/ nurses in the AYUSH department, the Rajasthan High Court said that splitting the additional vacancies arising after commencement of the process, into "two fractions" in the guise of the relevant service rules, is illegal and violates the candidates fundamental rights. 

The high court further said that Rule 16 of Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service Rules does not authorize the State Authorities to split or divide the newly accrued/ subsequently intimated posts just to make a short cut so that some of the posts can be added subsequently in the already issued advertisement. 

For context, Rule 16 enables the authorities to include more seats in the same recruitment process if, during the process, some additional requirements are intimated which is not more than 50% of the total advertised vacancies/posts. In case required number of additional posts are more than 50% of the advertised posts, then a new recruitment process has to be started.

Taking note of various Supreme Court judgments a single judge bench of Justice Farjand Ali in its 43 page order said, "A perusal of the above cited judgments clearly shows that the appointment on additional posts would deprive the candidates who were not eligible at the time of last date of submission of application forms but are eligible on the date of enhancement of seats and also if this kind of process will be followed and the previous year wait list candidates would be given a chance in the succeeding year then the same would be in violation of Article 14 and 16 of Constitution of India". 

The court said that the interpretation of law/statute/rules should always be "in coherence with the rights of citizens" as provided under Constitution of India. It noted that in the present case the date for applying had not been changed for adding seats and the seats which had accrued are huge in number.

"In guise of Rule 16 of the Rules 1966 the additional posts accrued have been dissected/ divided/splitted in two fractions which is contrary to law and in violation of the fundamental rights provided to the citizens of this country. The adjudication should be done with congruity to Constitution of India and keeping in mind the most crucial Articles i.e. 14, 15, 16, 19 and 21 of Constitution of India as the Courts cannot forgo the fundamental rights provided by these articles," the court underscored. 

It said that permitting AYUSH department to add 247 seats in the existing selection process goes against the "concept of equal opportunity" guaranteed by the Constitution of India. 

Taking note of Article 16 of the Constitution Justice Ali underscored that all the citizens are to be given an "equal chance of being employed or appointed to a State office" prohibiting discrimination based on any unreasonable and improper factor.

"No rule of law would like to see benefiting a class of citizen and closing the opportunity for the others. Rules are made for its use for betterment of the societal interest but, for sure, not made for being misused by the authorities. Taking resort of a provision, the State authorities can't be allowed to snatch reasonable opportunities from the others for which they are otherwise eligible. I am of the firm opinion that division of vacancy cannot be permitted to benefit some and causing loss to the others...In my considered opinion, Rule 16 has been framed for the above purpose only and therefore it cannot be allowed to be misused. Adding on half of the vacancy after almost 8 months of the commencement of the process that too by dividing/splitting the vacancy is not only beyond the purview of Rule 16 but also the same is illegal and unreasonable," the court underscored. 

Background

The Court was hearing bunch of writ petitions filed by petitioners in relation to recruitment process of Compounder/ Nurse Junior Grade by the AYUSH Department. An advertisement for recruitment was issued by the Department in October 2023 as per which the candidates were required to fulfil eligibility before the last date of form filling i.e. November 5, 2023. 

After the forms were filled, the Department in June added a number of seats in the selection process without revising the cut-off date for eligibility. Hence, only those candidates who were eligible on November 5, 2023 i.e. under the old advertisement, were considered eligible for the enhanced seats as well. Hence, the petitions were filed challenging the department's order that enhanced the number of seat. 

In reply to this, the State Authorities referred to Rule 16 and said since the number of enhanced seats was less than 50% of the total number of seats under the original advertisement, these new seats could be added to the same recruitment process without issuing fresh advertisement.

Findings

The high court said that Rules were made in 1966, when the situation was different in terms of population and employment and there were also limited number of vacated seats at the time. However, the court said, now the time has changed and in 2024 "the scenario is altogether distinct from the year 1966, so while considering the facts, the change in circumstances should also be taken into consideration”.

Moreover, the Court stated that the Rule 16 was not mandatory but provided discretion to the authorities which should be exercised justifiably based on the number of additional posts and the time that elapsed between the original advertisement and the inclusion of additional seats.

The Court recognized three categories of people who would be restricted from availing the opportunity to apply for the seats, by the decision of the State Department:

1. Those who did not receive degrees till the cut-off date under original advertisement but have received it now.
2. Whose qualifications got delayed since their courses were stretched by the government due to COVID lockdown and thus they were not eligible under the original advertisement but became so when the posts were enhanced.
3. Who were earlier not interested in applying for the posts but have become so now.

The Court observed that these categories clearly showed that the decision of State Authorities was discriminatory, in not providing a "fair chance" to petitioners by denying them the opportunity. It thereafter quashed the order enhancing the seats in the advertised posts. 

The court further directed the State Authorities to make a "sincere endeavour" to issue fresh advertisement with an immediate effect in respect of subsequently intimated seats for the post of Compounder/Nurse Junior Grade.

Accordingly, the petitions were disposed of.

Title: Nitisha Choudhary & Anr. v State of Rajasthan & Ors. and connected petitions

Citation: 2024 LiveLaw (Raj) 314

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