Rajasthan High Court - Jodhpur

Vijendra Choudhary vs State Of Rajasthan on 3 August, 2021

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 8779/2021

1. Vijendra Choudhary S/o Dhokal Ram, Aged About 32 Years, R/o Magra Punjla, Jamna Wala Bera Chenpura, Jodhpur, Rajasthan - 342304.

2. Seema Patel W/o Chaina Ram Patel, Aged About 30 Years, R/o Plot No. C1, Shramikpura Masuriya, Shastri Nagar, Jodhpur, Rajasthan 342003

3. Prashant Rathi S/o Rama Kishan Rathi, Aged About 30 Years, R/o Rawton Ki Gali, Gundi Ka Mohalla, Jodhpur, Rajasthan 342001

4. Priyanka Siyag W/o Pukhraj, Aged About 33 Years, R/o 20, Mahaveer Nagar Near Kbhb, Basni 1St Phase, K.u.m. Bhagat Ki Kothi,jodhpur, Rajasthan 342005

5. Sumitra Choudhary W/o Prem Prakash, Aged About 32 Years, R/o Janiyo Ki Dhani, Baakaniyo Ka Was, Fmagne Ki Dhani, Barmer, Rajasthan, 344001

6. Pinki Rajpurohit D/o Mohan Singh Rajpurohit, Aged About 27 Years, R/o Old Line, Gangashahar, Near Hariram Mandir, Bikaner, Rajasthan 334401

7. Deepika Shrimali D/o Ramesh Kumar Shrimali, Aged About 32 Years, R/o Brhampuri Chowk, Bikaner, Rajasthan 334001

8. Nandkishore S/o Gopi Ram Bishnoi, Aged About 30 Years, R/o Godaro Ka Mohalla, Kuchor Aguni, Bikaner, Rajasthan 334202

9. Sawan Kumar Banger S/o Bal Krishan Banger, Aged About 28 Years, R/o Sadar Bazar, Itunda, Bhilwara, Rajasthan 311201

10. Sonam Kumari Swarnkar D/o Balram Swarnkar, Aged About 30 Years, R/o Near Lata Traders, Alanpur Link Road, Alanpur (Rural), Sawaimadhopur Town, Sawai Madhopur, Rajasthan- 322021

11. Ashutosh Agrawal S/o Hari Charan Lal Agrawal, Aged About 31 Years, R/o 115, Madhuvan Vihar Colony, Saynath Khidakiya Bahar Karauli, Karauli, Rajasthan 322241

12. Atul Kumar S/o Bajrang Lal Sharma, Aged About 40 Years, R/o Near Water Tank, Badla Kaa Bass, Kuchaman

(2 of 9) [CW-8779/2021]

City, Nagaur, Rajasthan 341508

13. Inder Singh S/o Gumana Ram, Aged About 33 Years, R/o Ward No. 10, Near Bus Stand No. 1, Nethrana, 6 Ntr, Nethrana, Hanumangarh, Bhadra Rajasthan 335504

14. Abhishek Mohil S/o Rajendra Singh, Aged About 30 Years, R/o Magara Bass, Gali No. 8, Landnun, Ladnun Lsg, Nagaur, Rajasthan 341306

15. Monika Soni D/o Santosh Kumar Soni, Aged About 27 Years, R/o Ward No 28, Hanuman Mill Nagar Road, Gangapurcity, Gangapur, Sawai Madhopur, Rajasthan 322201

16. Anil Choithani S/o Sewaram Choithani, Aged About 36 Years, R/o 75 A, Kanwar Nagar, Raja Mal Ka Talab, Tripolia Bazar, A C Jobner, Rajasthan 302002

17. Pravesh Mathur S/o Pramod Mathur, Aged About 35 Years, R/o 70/75, Sheopur Road, Pratap Nagar Sanganer, Jaipur, Rajasthan 302033

18. Mohammed Imran S/o Mohammed Aslam, Aged About 27 Years, R/o House/bldg./apt. Mohalla, Chudigaran Purani Tonk, Street/road/city Tonk, P.o. Tonk Raj, Rajasthan 304001

19. Antima Agrawal D/o Omprakash Agrawal, Aged About 30 Years, R/o 10, Keshav Nagar, Bazriya, Sawai Madhopur, Rajasthan, 322001

20. Vikram Singh S/o Mahendra Singh Nathawat, Aged About 30 Years, R/o 4, Krishna Vihar, Gopal Ji Ki Talai, Sanganer, Jaipur, Rajasthan 302029

21. Khushendra Kumar Jain S/o Ramesh Chand Jain, Aged About 29 Years, R/0 Ward No. 9 Shukla Colony, Khandar, Sawai Madhopur, Rajasthan 322025

22. Preeti Choudhary, Aged About 31 Years, C/o Akshay Choudhary R/o C-75, Sainik Nagar, Jhunjhunu, Rajasthan 333001

23. Manish Garg S/o Roopnarayan Garg, Aged About 30 Years, R/o Padana Walo Ki Hawali, Kanya Mahavidya Ke Samne, Sawai Madhopur, Sawaimadhopur Town Rajasthan 322021

24. Mangi Lal S/o Prameshwar Lal, Aged About 29 Years, R/o Ward No. 07, Sahwa, Sahwa, Churu, Rajasthan 331302

25. Ghanshyam Sharma S/o Ramchran Sharma, Aged About

(3 of 9) [CW-8779/2021]

29 Years, R/o Behind Panchayat Samiti Tirupati Nagar, Hindaun City, Hindaun, Karauli, Rajasthan 322230

26. Rachana Yadav W/o Prakash Chand Yadav, Aged About 30 Years, R/o Gram Gumanpura, Post Dungari Kalan, Teh- Kishangarh Rainwal, Gumanpura, Jaipur, Rajasthan 303603

27. Ram Niwas Yadav S/o Shri Laxmi Narayan Yadav, Aged About 31 Years, R/o Dhani Deva Ki, Vidara(Rural), Jaipur, Rajasthan 303103

28. Vikas Saini S/o Mahaveer Prasad Saini, Aged About 31 Years, R/o Ward No. 22 Mohalla Srai, Near Janana Hospital Ke Pass , Teh Kotaputli, Kotputli, Jaipur, Rajasthan 303108

29. Ashish Kumar Soni S/o Ashok Kumar Soni, Aged About 32 Years, R/o 2014 Jadiya Bhawan, Bhatto Ka Rasta, Badi Chopar, Jaipur, Rajasthan 302002

30. Prachi Jain W/o Manish Kansal, Aged About 35 Years, R/o 105/73, Chatrapati Marg Vijay Path, Mansarovar, Jaipur, Rajasthan 302020

31. Ramraj Nagar S/o Bajrang Lal Nagar, Aged About 36 Years, R/o Badoonda, Bundi, Bajar, Rajasthan 323021

32. Anila Kajala D/o Rameshwar Lal Kajala, Aged About 31 Years, R/o Ward No. 03, Ladpur, Teh Dantaramgarh, Ladpura, Ladpur, Sikar, Rajasthan 332601

33. Devendra Kumar Jyani S/o Gulla Ram Jat, Aged About 34 Years, R/o A-6, Vivekanand Colony, Near T.p.s School Naya Khera Ambabari Jaipur, Vidhyadhar Nagar A C Jobner Jaipur, Rajasthan 302023

34. Deep Chand Yadav S/o Nanda Ram Yadav, Aged About 27 Years, R/o 102, Kothi Wali Dhani, Village Khaparia, Post Anoppura, Teh Amer Dist Jaipur, Naupura Rajasthan 303801

35. Moti Lal Jat S/o Hari Prakash Jat, Aged About 29 Years, R/o Makan No-12- Ward No.-10, Shahpura, Bhilwara, Rajasthan 311404

36. Pukhraj Gaud S/o Shankar Lal Gaud, Aged About 30 Years, R/o Baki Mata Mandir Ke Pass, Raaj Bag Colony, Alanpur (Rural), Sawai Madhopur, Sawaimadhopur Town, Rajasthan 322021

37. Jeevandhar Gupta S/o Govind Narayan Gupta, Aged

(4 of 9) [CW-8779/2021]

About 29 Years, R/o 143, Sadar Bazar, Shisholav, Sheesholao, Kolada, Sawai Madhopur, Bonli, Rajasthan 322023

38. Avinash Sharma S/o Nand Kishor Sharma, Aged About 32 Years, R/o Surya Mandir Ke Pas,new Nagri, Tonk, Malpura, Rajasthan 304502

39. Rajendra Kumar Sharma S/o Kalu Ram Sharma, Aged About 33 Years, R/o 36, Village Sabalpura, Ghinoi, Kaledara, Jaipur, Rajasthan 303801

40. Hariom Dhaked S/o Amar Singh, Aged About 29 Years, R/o Dhakad Gali, Brahmawad, Bharatpur, Rajasthan 321410

41. Apoorv Sharma S/o Trilokinath Sharma, Aged About 32 Years, R/o Behind Old Post Office, Mangal Pura, Jhalawar City, Jhalawar, Rajasthan 326001

42. Amardeep Vijay S/o Sh. Ramavtar Vijay, Aged About 29 Years, R/o Plot No. 37, Pratap Nagar, Jaipur Road, Malpura Tonk, Malpura, Rajasthan 304502

43. Om Prakash Sahu S/o Durga Lal Sahu, Aged About 27 Years, R/o Ghar Road Dooni, Dooni, Tonk, Rajasthan 304802

44. Rakesh Pareek S/o Mohan Lal Pareek, Aged About 33 Years, R/o 34 A, Vijay Colony, Meena Wala, Panchyawala, Jaipur, Rajasthan 302034

45. Pradeep Kumar Gautam S/o Late Sh. Ramesh Chand Sharma, Aged About 30 Years, R/o 32, Brahampuri Railway Colony, Sawai Madhopur, Rajasthan

46. Rakesh Kumar Serawat S/o Banshi Dhar Serawat, Aged About 29 Years, R/o -Serawato Ki Dhani, Village- Harota, Chomu, Jaipur-303702

47. Vishnu Agrawal S/o Daulat Ram Agrawal, Aged About 29 Years, R/o 41-G-1, Krishna Residency, Mahaveer Nagar Colony, Vistar Karatarpura, Jaipur, Barkat Nagar, Jaipur, Rajasthan-362015

48. Swati Jain W/o Virendra Patni, Aged About 35 Years, R/o 449, Gate No. 6, Nainawa Road, Rajat Grah Colony, Bundi, Rajasthan 323001

49. Jai Narayan Sihag S/o Satyapal Sihag, Aged About 31 Years, R/o Baliya, Churu, Rajasthan 331304

50. Shivashish Sharma S/o Ghan Shyam Sharma, Aged About

(5 of 9) [CW-8779/2021]

28 Years, R/o Nishant Medical Store, Balaheri, Tehsil Mahuwa, Balaheri, Dausa, Rajasthan 321608

----Petitioners Versus

1. State Of Rajasthan, Through Principal Secretary, Finance, Government Secretariat, Jaipur.

2. Department Of Treasuries And Accounts, Through Director, Vitt Bhawan, Janpath, Jaipur- Rajasthan.

3. Rajasthan Public Service Commission, Through Chairman, Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001.

----Respondents

For Petitioner(s) : Mr. Ajatshatru Mina through VC For Respondent(s) : Mr. Kailash Choudhary for Mr. Manish Vyas, AAG Mr. Ravi Panwar

JUSTICE DINESH MEHTA

Order

03/08/2021

1. It was brought to the notice of this Court that against the

order dated 18.12.2019 passed by Co-ordinate Bench of this Court

in SB Civil Writ Petition No. 18208/2019, the State preferred an

Intra-Court appeal, which was registered as DB Special Appeal

Writ No.362/2020, wherein the Division Bench has passed the

following order:-

"Shri S.S. Choudhary, Advocate puts in appearance on behalf of the respondents.

Heard. Perused the material available on record. Shri Pankaj Sharma, AAG representing the appellant submits that ex-parte order disposing of the writ petition was passed by learned Single Bench by relying on the order dated 21.11.2017 passed in the case of Om Prakash & Ors v. State of Rajasthan &Ors. : S.B. Civil Writ Petition No.21214/2017. Shri Pankaj Sharma, AAG points out that the controversy involved in the case of Om Prakash (supra) was pertaining to the recruitment of Teachers Grade-III for the year 2012 whereas the case at hand involves the recruitment of

(6 of 9) [CW-8779/2021]

LDCs made in the year 1986. Thus, he urges that the order passed in the case of Om Prakash is in no manner applicable to the case of the respondents herein. We feel that the matter requires consideration. Thus, the appeal is admitted.

Admit.

Heard on the stay application. Having regard to the facts and circumstances of the case, if is hereby directed that the effect and operation of the order dated 18.12.2019 passed in S.B. Civil Writ Petition No.18208/2019 shall remain stayed till disposal of the appeal. The stay application is disposed of. Connect with DBSAW No.368/2020."

2. Having regard to the aforesaid position, when the matter

was listed for admission, it was deemed appropriate to issue

notices to the respondents, with a view to ascertain, as to whether

or not the issue is covered by the judgment dated 21.11.2017,

rendered in SB Civil Writ Petition No.21214/2017 : Om Prakash

Vs. State of Rajasthan.

3. The notices were ordered to be served upon learned

Additional Advocate General of the State.

4. Mr. Kailash Choudhary associate of Mr. Manish Vyas, learned

AAG and Mr. Ravi Panwar submitted that the petitioners have been

selected in the recruitment of the year 2012/2013/2016 and thus,

the issue is covered by the judgment of this Court rendered in

case of Om Prakash (supra). He, however, maintained that the

same may not be construed to be an admission of the proposition

that the petitioners are entitled for the benefits which he/she/they

has/have claimed in light of the basic judgment rendered in case

of Hemlata Shrimali Vs. State of Rajasthan.

5. Relevant portion whereof of the order in case of Om

Prakash(supra) reads thus :

"Learned counsel for the petitioners, at the very outset, submits that

the controversy raised in the instant writ application stands resolved in

(7 of 9) [CW-8779/2021]

view of the adjudication made by a Coordinate Bench of this Court in a

batch of writ applications lead case being S.B. Civil Writ Petition Number

3247/2015: Hemlata Shrimali & Ors. Versus State of Rajasthan & Ors.,

decided on 1st Apri., 2015, relying upon the adjudication in the case of

Suman Bai & Anr. Versus State of Rajasthan & Ors.: 2009 (1) WLC (Raj.)

381, observing 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 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

(8 of 9) [CW-8779/2021]

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, 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."

Learned counsel for the petitioners further submits that instant writ application be also disposed off in terms of the order dated 24th May, 2017, as extracted herein above.

Ordered accordingly."

6. In view of the aforesaid, following the judgment in case of

Om Prakash (supra), the writ petition is disposed of in same

terms.

                                                                                   (9 of 9)                 [CW-8779/2021]



                                   7.    For       the    purpose      aforesaid,        the     petitioners    shall     file

representation before the competent authority giving out the

requisite details along with certified copy of the order instant

within a period of four weeks from today. On receipt of the

representation, the concerned respondent shall decide the same,

in accordance with law within a period of eight weeks from the

date of receipt of the representation and accord notional benefits

to the petitioners from the date persons similarly situated to them

and lower in merit were given appointment.

8. Upon consideration of the representation so filed, if

respondents find the cases of the petitioners to be covered by the

judgment(s) aforesaid, before giving actual benefits, an

undertaking shall be procured from the concerned petitioners to