Ghanshyam Paliwal vs State Of Rajasthan
2021 Latest Caselaw 12794 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10794/2021

1. Ghanshyam Paliwal S/o Sundar Lal Paliwal, Aged About 39 Years, Mataji Ka Chowk, Vpo Dohinda, District Rajsamand (Raj.).

2. Ramesh Kumar Joshi S/o Shri Tejaram, Aged About 35 Years, Vpo Badgaon, Tehsil Raniwada, District Jalore (Raj.).

3. Bindiya Sharma D/o Maliram Sharma, Aged About 34 Years, Plot No. 51-52, Jai Bhawani Vihar Vistar, Govindpura, Kalwar Road, Jhotwara, Jaipur (Raj.).

4. Avinash S/o Jagdish Kumar, Aged About 31 Years, H.no.

902, Keshavpura, Kota (Raj.).

5. Rajpal Singh S/o Ramlakhan Singh, Aged About 33 Years, 3/42, Swami Vivekanand Nagar, Kota (Raj.).

6. Dinesh Chand Tailor S/o Shri Babu Lal Tailor, Aged About 42 Years, H.no. 53, Gali No. 3, Mahatma Gandhi Colony, Mala Phatak, Kota (Raj.).

7. Sanjay Nagar S/o Shri Bhanwar Lal Nagar, Aged About 38 Years, Village Sambalpur, Tehsil And District Baran (Raj.).

8. Pradeep Bansal S/o Shri Dharamprakash Bansal, Aged About 35 Years, Jagannath Ji Ka Makan, Shivdasghat Ki Gali, Rampura, Kota (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Panchayati Raj Department, Govt. Secretariat, Jaipur.

2. Chief Executive Officer, Zila Parishad Dungarpur.

3. Chief Executive Officer, Zila Parishad, Kota.

4. Block Development Officer, Panchayat Samiti Simalwada, District Dungarpur.

5. Block Development Officer, Panchayat Samiti Itawa, District Kota.

6. Block Development Officer, Panchayat Samiti Ladpura, District Kota.

                                                                 ----Respondents




                                              (2 of 7)                [CW-10794/2021]



For Petitioner(s)             :     Mr. R.K. Gautam, through VC
For Respondent(s)             :



                         JUSTICE DINESH MEHTA

                                         Order

16/08/2021

1. Learned counsel for the petitioner(s) submits that in a

matter involving identical issue i.e. Satdev Vs. Sate of Rajasthan &

Ors. (SB Civil Writ Petition No.9899/2019), a Co-ordinate Bench of

this Court on 25.07.2020 passed following order :-

"This writ petition has been filed by the petitioner

seeking a direction to the respondents to accord notional benefits from

the date appointment was given to similarly situated persons in the

year 2013.

It is inter alia indicated in the writ petition that pursuant

to the LDC recruitment 2013 (Annex.1), the petitioner participated in

the recruitment and was selected, however, appointment was not

accorded on account of pendency of litigation before this

Court,wherein, the petitioners who were contractual employees, had

questioned termination of their services as contractual employees.

After the litigation was over, by order dated 4.9.2017 (Annex.2),the

petitioners were accorded appointment pursuant to the selections held

in the year 2013.

It is inter alia indicated that petitioner was eligible in the

year 2013, was duly selected pursuant to the selection process held by

the respondents and was not accorded appointment only on account of

pendency of litigation, which has apparently nothing to do with the

eligibility of the petitioner and, therefore, according the appointment

in the year 2017 and not providing the petitioner notional benefits,

(3 of 7) [CW-10794/2021]

fixation etc. w.e.f. the date similarly situated persons were accorded

appointment, are not justified. Reliance was placed on judgment in the

case of Om Prakash & Ors. v. State of Rajasthan & Ors. : S.B. Civil

Writ Petition No.21214/2017, decided on 21.11.2017.

Learned counsel for the respondents resisted the

submissions made by learned counsel for the petitioner. It was

submitted that as the petitioner has been accorded appointment in the

year 2017, he is not entitled to any relief and, therefore, the writ

petition filed by the petitioner deserves to be dismissed.

I have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

It is not in dispute that the petitioner was eligible in the

year 2013 and his name found place in the list of selected candidates

in the year 2013 itself, however, on account of pending litigation

which apparently had no relation with the eligibility of the petitioner,

the appointment was not accorded to the petitioner and ultimately in

the year 2017, the same was accorded to the petitioner, for which act

of respondents, the petitioner cannot be penalized.

In case of Om Prakash (supra), in somewhat similar

circumstances, relief was granted to the petitioners therein in light of

judgment in the case of Hemlata Shrimali & Ors. v. State of Rajasthan

& Ors. : S.B. Civil Writ Petition No.3247/2015, decided on 1.4.2015

and relying upon the adjudication in the case of Suman Bai & Anr. v.

State of Rajasthan & Ors. : 2009 (1) WLC (Raj.) 381.

In the case of Om Prakash (supra), the Bench at Jaipur

after noticing orders in the case of Hemlata Shrimali (supra) and

Suman Bai (supra) observed and ordered as under:-

(4 of 7) [CW-10794/2021]

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

submits that the controversy raised in the instant writ

application stands resolved in 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 where by

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

(5 of 7) [CW-10794/2021]

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.

In fact, 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

(6 of 7) [CW-10794/2021]

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 res judicata

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."

The fact situation in the present case is not different from the

case of Om Prakash (supra), wherein relief was granted on account of

delayed appointment qua persons, who were lower in merit to the

petitioners therein, while in the present case, similarly situated persons

were accorded appointments. In view thereof, the writ petition filed by

the petitioner is allowed in light of judgment in the case of Om Prakash

(supra).The petitioner may make a representation to the respondents

pointing out the requisite dates etc., based on which, the respondents

would deal with the representation while according notional benefits to

the petitioner from the date persons similarly situated to the petitioner,

were accorded appointment by the respondents. Needful may be done

by the respondents within a period of four weeks from the date such

representation alongwith a copy of this order is placed by the petitioner

before the respondents."

(7 of 7) [CW-10794/2021]

3. Thus, the present writ petition is disposed of with the

direction to the respondents to decide representation of the

petitioners within 30 days from the date such representation along

with copy of this order is placed before the respondents in the

same terms as in the matter of Satdev (Supra).

4. 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.

5. Upon consideration of the representation so filed, if

respondents find the case of the petitioner to be covered by the

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

undertaking shall be procured from the concerned petitioner to the

effect that his/her/their 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/she/they shall also be

liable for restitution of any benefits/emoluments so received.

6. The stay application is also disposed of.

(DINESH MEHTA),J

245-skm/-

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