Manisha vs State Of Raj
2021 Latest Caselaw 9055 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 936/2020

1. Manisha D/o Ram Rakh, Aged About 27 Years, Village Sonari, Tehsil Sedwa District Barmer.

2. Sua Kumari D/o Kesa Ram, Aged About 29 Years, Village Bhatip, Tehsil Raniwara District Jalore.

3. Annu Choudhary D/o Jetha Ram Choudhary, Aged About 29 Years, Village Dhelani Nadi, Dholanada Tehsil Gudamalani, District Barmer.

----Petitioners Versus

1. State Of Raj., Through The Secretary, Medical Health Department And Mission Director, Mhm, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur.

2. Director, State Health And Family Welfare Institution, Jhalana Sansthanik Area, Jaipur.

                                                                   ----Respondents


For Petitioner(s)          :     Mr. RJ Punia
For Respondent(s)          :     Mr. KS Rajpurohit, AAG
                                 Mr. Shreyansh Mehta



                      JUSTICE DINESH MEHTA

                                      Order

08/04/2021

1. By way of present writ petition, petitioners have challenged

the action of the respondents, whereby candidates lower in merit

to them have been given appointment, while petitioners have

been kept out of the select list.

2. The facts if narrated in a nutshell, are that the respondents

invited applications for filling up 1789 posts of ANM on contractual

basis vide notification dated 28.01.2016.

(2 of 6) [CW-936/2020]

3. All the three petitioners appeared in written examination and

having secured 91.40422379; 89.66901321; and 89.66901321

percentile ranking respectively were called for document

verification and the final select list was issued.

4. When petitioner No.1 found that inspite of getting 91.40

percentile, her name was not reflected in the final select list issued

by the respondents, she preferred a writ petition being, SBCWP

No.2456/2017 and the same came to be allowed by a Co-ordinate

Bench of this Court vide judgment dated 26.02.2018, inter alia, in

light of judgment of this Court rendered in the case of Priyanka

Saini Vs. State of Rajasthan & Ors. (SBCWP No.1766/2017). The

operative part of the judgment reads thus:-

"In light of the afore-quoted judgment, the writ petition is disposed of with the direction to the respondents to act strictly in accordance with terms and conditions laid down in the judgment of Priyanka Saini (supra). It is further made clear that the respondents shall be required to give appointment to the petitioners on the post of Auxiliary Nursing Midwifey (A.N.M.) arising out of advertisement dated 28.01.2016, in case any person having lower merit than the petitioners has been accorded such appointment."

5. Mr. Punia, learned counsel for the petitioners invited Court's

attention towards the select list(s) dated 19.08.2019 and

10.12.2019 (Annex.5) and highlighted that many candidates

having secured only 59.706 percentile and 70.698 percentile have

been given appointment, while appointment has not been given to

the petitioners.

6. Learned counsel argued that as per the judgment of this

Court in the case of Priyanka Saini (supra), the respondents were

required to prepare State-wise merit list and then give

appointment to all meritorious candidates.

(3 of 6) [CW-936/2020]

7. Inviting Court's attention towards directions given in para

No. (iii), learned counsel submitted that after calling for district-

wise preference and taking the same into account, candidates

were to be given posting.

8. Learned counsel added that in light of directions in Para No.

(v) no meritorious candidate could have been left out, whereas

the petitioners having secured marks as high as 91.40422379 and

89.66901321 percentile, have been ousted from the engagement.

9. Mr. Mehta, learned counsel for the respondents argued that

the petitioners had filled in Barmer/Jalore/Barmer as their first

option of District and since all seats of such places were filled by

the candidates having secured higher marks than the petitioners,

they were not given appointment.

10. While informing the Court that no candidate having secured

lesser marks than the petitioners in the district of their first choice

has been given appointment, he submitted that the petitioners

cannot raise any grievance.

11. Mr. Mehta, further submitted that recruitment in question

relates to the year 2016, whereafter the State has further

engaged regular ANMs in the year 2018 and thus, any indulgence

granted to the petitioners at this stage would unsettle other

candidates, who have already been given appointment.

12. Heard.

13. In the opinion of this Court, when a clear direction has been

given by this Court in the case of Priyanka Saini (supra), in

relation to self-same recruitment, the respondents were bound to

adhere to the directions given in such judgment.

14. It will not be out of place to reproduce directions given in

case of Priyanka Saini (supra):-

(4 of 6) [CW-936/2020]

"Following the view formulated by the coordinate Bench in the case of Rajkumar & Ors. (supra), the present writ petitions are disposed of by issuing following directions:-

(i). That the respondents shall issue a public notice in 'Rajasthan Patrika' and 'Dainik Bhaskar' having largest circulation in the State of Rajasthan, within ten days from the receipt of certified copy of the order.

(ii). That the respondents in the public notice shall also disclose number of vacancies available in each District.

(iii). That the respondents in the public notice to be issued in pursuance of directions issued above, shall seek option of candidates district-wise. Needless to say, a meritorious candidate shall first give option for his/her home district and then shall give his/her preference for remaining districts serial-wise.

(iv). That the respondents, after meritorious candidates are allowed to exercise option for his/her home district and posts are filled on that basis, shall allocate remaining posts in other districts to successful candidates on the basis of merit.

(v). It is clarified that no candidate lower in merit will be allowed to jump a candidate who is meritorious. So far employment is concerned, all candidates in merit list shall be allocated a district.

(vi). That respondents shall device a formula to act in consonance with the directions issued by this court above so that no meritorious person is left out of the employment."

15. This Court cannot countenance the stand of the State that,

since the petitioners had filled in Barmer/Jalore/Barmer as their

first choice of District and the seats got filled by the candidates

securing higher marks than the petitioners, they were not

considered for appointment for other districts.

16. The stand of the respondents has led to hostile

discrimination against the petitioners, which is violative of Article

14 of the Constitution on the face of it. The candidates having

secured as low as 59 percentile rankings have been given

appointment, may be in district Jaisalmer but then, once the State

was required to prepare State-wise merit list, it cannot stick to the

(5 of 6) [CW-936/2020]

first option given by a candidate. If the seats in district

Barmer/Jalore have been occupied by the candidates having

secured higher marks than the petitioners, the respondents were

required to consider the petitioners for other districts, as per the

options given by them.

17. Adverting to the argument of Mr. Mehta that the recruitment

is already over, this Court is of the considered view that when the

respondents themselves have erred, they cannot take an excuse

of rights of other selected candidates.

18. The directions given in Priyanka Saini's case (supra) were

unequivocal and binding. Respondents' action of not considering

the petitioners in the Districts other than their home district is

illegal and arbitrary besides being contrary to judgment in

Priyanka Saini's case (supra).

19. The writ petition is, therefore, allowed.

20. The respondent No.2 is directed to offer appointment to the

petitioners in any of the districts where vacancies still exist. It will

be required of him to prepare fresh merit list for the petitioners

and then offer appointment to them in the districts as per the

option(s) they had given, obviously in the districts where seats are

still lying vacant.

21. Needless to observe that such appointment will remain

subject to the petitioners being otherwise eligible.

22. The petitioners shall be entitled for notional benefits from

19.08.2019, the date when the first select list was issued and

candidates lower in merit than the petitioners were given

appointment.

23. Needful be done within a period of six weeks from today.

(6 of 6) [CW-936/2020]

24. Stay application also stands disposed of.

(DINESH MEHTA),J 17-Rahul/-

Powered by TCPDF (www.tcpdf.org)