Rajasthan High Court - Jodhpur

Umesh Paliwal vs The State Of Rajasthan on 20 December, 2021

Bench: Arun Bhansali

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17762/2021

1. Umesh Paliwal S/o Keshu Lal Paliwal, Aged About 28 Years, R/o Choti Morwar, Rajsamand, Rajasthan.

2. Raghuveer Singh Panwar S/o Manohar Singh Panwar, Aged About 31 Years, R/o Doulat Colony, Kelwa, District Rajsamand, Rajasthan.

3. Paras Kumari Teli D/o Shankar Lal Teli, Aged About 35 Years, R/o Village Sadar Bazar, Rajyawas, District Rajsamand, Rajasthan.

4. Leela Rathor D/o Sohan Singh Rathor, Aged About 33 Years, R/o Village Sangath Khurd, Post Sangath Kala, Vaya District Rajsamand, Rajasthan.

5. Kanhaiya Lal Gahlot, Aged About 34 Years, R/o Chopata Ka Bag, Nathdwara, District Rajsamand, Rajasthan.

6. Ameta Bhawana Ben D/o Kamlesh Bhai Meena, Aged About 34 Years, R/o 119, Paliwal Mohalla, Village Dhanyala, Kelwa, District Rajsamand, Rajasthan.

7. Rekha Kumari Gadari D/o Devkrishna Gadari, Aged About 33 Years, R/o Bhil Basti, Ulpura Nadi, Post Bamanheda, Tehsil Nathdwara, District Rajsamand, Rajasthan.

8. Mukesh Kumar Dabi S/o Shankar Lal Dabi, Aged About 30 Years, R/o Village And Post Virai, Tehsil Sagwara, District Dungarpur, Rajasthan.

9. Kailash Chandra Nuwal S/o Nanu Ram, Aged About 31 Years, R/o Village Daulatgarh, Tehsil Asind, District Bhilwara, Rajasthan.

10. Pradeep Kumar Sharma S/o Shankar Lal Sharma, Aged About 34 Years, R/o Village Hingoriya Vaya Singhpur, Tehsil Kapasan, District Chittorgarh, Rajasthan.

11. Ashish Kumar Sharma S/o Mahaveer Prasad Sharma, Aged About 31 Years, R/o Village Jamoli, Post Jamoli, Tehsil Jahazpur, District Bhilwara, Rajasthan.

12. Hemant Joshi S/o Kailash Chandra, Aged About 28 Years, R/o Village Mungana, Tehsil Kapasan, Post Bhupalsagar, District Chittorgarh, Rajasthan.

13. Pankaj Kumar Arya S/o Mohan Lal Arya, Aged About 35 Years, R/o Behind Hospital, Adarsh Colony, Tehsil

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Bhupalsagar, District Chittorgarh, Rajasthan.

14. Sitaram Jat S/o Ratan Lal Jat, Aged About 32 Years, R/o Village Sonarda, Post Kanthariya Chobe Ji Ka, Tehsil Bhadesar, District Chittorgarh, Rajasthan.

15. Rajesh Kumar Meena S/o Badri Lal Meena, Aged About 33 Years, R/o 692, Ward No.11, Mla Ki Gali, Amarwasi, Tehsil Jahazpur, District Bhilwara, Rajasthan.

16. Rajesh Kumar Meena S/o Kajor Mal Meena, Aged About 33 Years, R/o Village Morla, Post Amarwasi, Tehsil Jahazpur, District Bhilwara, Rajasthan.

17. Krishan Kuamr Regar S/o Ladu Ram Regar, Aged About 30 Years, R/o Village And Post Shambhugarh, Tehsil Asind, District Bhilwara, Rajasthan.

18. Manish Kumar Meghwal S/o Jagdish Chandra Meghwal, Aged About 36 Years, R/o Village Gadola, Tehsil Nimbahera, District Chittorgarh, Rajasthan.

----Petitioners Versus

1. The State Of Rajasthan, Through Secretary, Medical And Family Welfare Department, Rajasthan, Jaipur.

2. The Director (Non-Gazzeted), Medical And Health Services, Rajasthan, Jaipur.

3. The Addl. Director (Admn.), Medical And Family Welfare Department, Rajasthan, Jaipur.

4. The Chief Medical And Health Officer, Chittorgarh.

5. The Chief Medical And Health Officer, Rajsamand.

----Respondents

For Petitioner(s) : Mr. Hansraj Nimbar.

For Respondent(s)         :



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

20/12/2021

It is submitted by learned counsel for the petitioners that for

the same recruitment, similarly situated petitioners had

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approached Jaipur Bench of this Court in Om Prakash & Ors. v.

State of Rajasthan & Ors. : S.B. Civil Writ Petition No.21214/2017,

which writ petition has been decided on 21.11.2017 granting relief

to the petitioners 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 and, therefore, the present writ

petition may also be decided in light of judgment in the case of

Om Prakash (supra).

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 as under:-

"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 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

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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 fresh 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."

In view of the submissions made, the present writ petition

filed by the petitioners is also disposed of in light of order passed

in the case of Om Prakash (supra).