HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9414/2021 Radheshyam Raidas S/o Shri Kastur Ji Raidas, Aged About 39 Years, R/o Chakoonda, Tehsil Arnod, District Pratapgarh, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through The Secretary, Department Of Rural And Development And Panchayati Raj, Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director, Elementary Education, Bikaner, District Bikaner, Rajasthan.
3. District Education Officer (Elementary Education), Chittorgarh, Rajasthan.
4. The Chief Executive Officer, Zila Parishad, Chittorgarh, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Vijay Kumar Gaur
For Respondent(s) :
JUSTICE DINESH MEHTA
Order
26/07/2021
1. At the very outset, learned counsel for the petitioner submits that the controversy raised in the instant writ application is no more res-integra in view of the adjudication made in the case of Suman Bai & Anr. Vs. State of Rajasthan & Ors.: 2009 (1) WLC (Raj.) 381, wherein the Coordinate Bench of this Court observed thus:
" 5. Upon consideration of the arguments aforesaid and the judgment of the Division Bench in Hari Ram and the subsequent order dated 21.7.2001 whereby clarification application of the State Government was dismissed, I find that the entitlement of the petitioner for appointment on the basis of originally (Downloaded on 26/07/2021 at 09:05:49 PM) (2 of 4) [CW-9414/2021] prepared merit list cannot be denied. If admittedly the candidates, who are lower in merit, have been granted appointment, those who are above them in the merit cannot be denied such right of appointment. Seniority as per the rules in the case of direct recruitment on the post in question is required to be assigned on the basis of placement of candidates in the select list and when the selection is common and the merit list on the basis of which appointments were made is also common, right to secure appointment to both the set of employees thus flows from their selection which in turn is based on merit. Regard being had to all these facts, merely because one batch of employee approached this Court later and another earlier, and both of them having been appointed, the candidates who appeared 6 lower in merit cannot certainly be placed at a higher place in seniority. It was on this legal analogy that Division Bench of this Court in Niyaz Mohd.Khan (supra) held that the petitioner therein entitled to be placed in seniority in order of merit of common selection amongst persons appointed in pursuance of the same selection with effect from the date person lower in order of merit than the petitioner was appointed with consequential benefits.
6. I am not inclined to accept the argument of the learned counsel for the respondents No.4 to 8 that the judgment of the learned Single Judge should be so read so as to infer therefrom that though the petitioners would be entitled to claim appointment but not seniority above the candidates who are already appointed even though they admittedly are above them in the merit list. Infact, the judgment of the learned Single Judge merely reiterated the direction of the Division Bench in Hari Ram (supra) in favour of the petitioners. But construction of that judgment in the manner in which the respondents want this Court to do, would negat the mandate of the Rules 20 and 21 of the Rajasthan Education Subordinate Service Rules, 1971, which requires seniority to be assigned as per the inter-se merit of 7 the candidates in the merit list based on common selection. Even otherwise, no such intention of the Court is discernible from reading of that judgment. Mere appointment of the petitioner was a sufficient compliance of the judgment and not total compliance was the view taken by this Court also when contempt petition filed by the petitioners was dismissed. Question with regard to correct and wrong assignment of seniority having arisen subsequent to appointment of the petitioners would obviously give rise to a afresh cause of action. The writ petition filed by the petitioners, therefore, (Downloaded on 26/07/2021 at 09:05:49 PM) (3 of 4) [CW-9414/2021] cannot be thrown either barred by resjudicata or otherwise improperly constituted.
7. In the result, this writ petition is allowed and the respondents are directed to treat the petitioners senior to respondents No.4 to 8 as per their placement in the merit list."
2. It is further contended that for the present; the petitioner would be satisfied, if the State-respondents are directed to consider and decide the representation of the petitioner, in the backdrop of the adjudication in the case of Suman Bai & Anr.
(supra), within a time frame, which he is ready and willing to address within two weeks hereinafter.
3. In view of the limited prayer addressed; the instant writ proceedings are closed with a direction to the petitioner to address a representation enclosing a copy of the order in the case of Suman Bai & Anr. (Supra).
4. In case, a representation is so addressed within the aforesaid period, the State-respondents are directed to consider and decide the same by a reasoned and speaking order as expeditiously as possible in accordance with law. However, in no case latter than three months from the date of receipt of the representation along with a certified copy of this order.
5. Upon consideration of the representation so filed, if respondents find the cases of the petitioner to be covered by the judgment(s) aforesaid, before giving actual benefits, an undertaking shall be procured from the petitioner to the effect that his rights/entitlements shall be subservient to the fate of the judgment(s) aforesaid and in case the same is reversed or modified in any manner, he shall also be liable for restitution of any benefits/emoluments so received.
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6. With the observations and directions, as indicated above, the writ application stands disposed of.
7. The stay application also stands disposed of accordingly.
(DINESH MEHTA),J 117-skm/-
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