Sanjay Chaudhary vs State Of Rajasthan
2021 Latest Caselaw 5524 Raj

(1 of 14) [CW-2094/2019]

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

(1) S.B. Civil Writ Petition No. 2094/2019

Kuldeep Kumar

----Petitioner Versus State Of Rajasthan

----Respondent

(2) S.B. Civil Writ Petition No. 2247/2019

Om Prakash

----Petitioner Versus State Of Rajasthan

----Respondent (3) S.B. Civil Writ Petition No. 2383/2019

Rajendra Kumar

----Petitioner Versus State Of Rajasthan

----Respondent (4) S.B. Civil Writ Petition No. 6576/2019

Veerma Ram

----Petitioner Versus State Of Rajasthan

----Respondent (5) S.B. Civil Writ Petition No. 10133/2019

Kishor Singh Chadana

----Petitioner Versus State Of Rajasthan

----Respondent (6) S.B. Civil Writ Petition No. 11295/2019

Sharawan Singh

----Petitioner Versus

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State Of Rajasthan

----Respondent (7) S.B. Civil Writ Petition No. 11328/2019

Amit Kumar

----Petitioner Versus State Of Rajasthan

----Respondent (8) S.B. Civil Writ Petition No. 13524/2019

Sani Dan Charan

----Petitioner Versus State Of Rajasthan

----Respondent (9) S.B. Civil Writ Petition No. 14437/2019

Sushil Kumar Gour

----Petitioner Versus State Of Rajasthan

----Respondent (10) S.B. Civil Writ Petition No. 14599/2019

Mahendra Kumar Sharma

----Petitioner Versus State Of Rajasthan

----Respondent (11) S.B. Civil Writ Petition No. 16139/2019

Sanjay Chaudhary

----Petitioner Versus State Of Rajasthan

----Respondent (12) S.B. Civil Writ Petition No. 1093/2020

Hiran Kumar Rajvanshi

----Petitioner Versus State Of Rajasthan

(3 of 14) [CW-2094/2019]

----Respondent (13) S.B. Civil Writ Petition No. 1200/2020

Rakesh Kumar

----Petitioner Versus State Of Rajasthan

----Respondent (14) S.B. Civil Writ Petition No. 1419/2020

Soni Bishnoi

----Petitioner Versus State Of Raj.

----Respondent (15) S.B. Civil Writ Petition No. 1895/2020

Suresh Kumar Jat

----Petitioner Versus State Of Rajasthan

----Respondent (16) S.B. Civil Writ Petition No. 2107/2020

Sunil Kumar

----Petitioner Versus State Of Rajasthan

----Respondent (17) S.B. Civil Writ Petition No. 2137/2020

Avadhesh Kumar Jangid

----Petitioner Versus State Of Rajasthan

----Respondent

Mr. G.R. Punia, Sr. Advocate with Mr. M.S. Godara, Mr. Manoj Bhandari, Mr. Kailash Jangid, Mr. M.S. Shekhawat, Mr. Sushil Bishnoi, Mr. C.S. Kotwani, Mr. Suniel Purohit, Mr. Shrawan Choudhary, Mr. H.S. Choudhary,

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Mr. C.P. Trivedi, Mr. Sampat Prajapat, Mr. Gulab Singh Naruka, Mr. Tanwar Singh, Mr. Ambalal, Mr. S.R. Godara : Mr. Manish Vyas, AAG with Mr. Kailash Choudhary

Counsel for their respective parties.

JUSTICE DINESH MEHTA

Order

25/02/2021

: BACKGROUND :

1. During the course of hearing a bunch of cases led by SB Civil

Writ Petition No.604/2021, raising grievance qua operating reserve

list for appointment on the post of Teacher Grade-III Level-2,

while filling up the unfilled posts, the State took a plea that the

vacant posts have been filled up in the manner directed by the

High Court in its judgment dated 20.07.2020, rendered in the case

of Kuldeep Kumar & Ors. Vs. State of Raj. & Ors. and connected

matters (SB Civil Writ Petition No.2094/2019).

2. That being position on 24.02.2021, this Court passed the

following order in the above referred case; S.B. Civil Writ Petition

No.604/2021 :-

"1. The respondents have filed an additional affidavit dated 24.02.2021, stating in Para No. 6 thereof that the vacant posts have been filled in by operating category wise waiting list in light of the direction given by this Court in judgment dated 17.08.2020 passed by the Co- ordinate Bench in the case of Lokendra Singh Vs. State of Rajasthan & Ors. (SBCWP No.1184/2020).

2. Operative portion of the judgment reads thus:-

"In light of the aforesaid, the present writ petitions are disposed of with a direction to the respondents to fill the remaining posts while operating category-wise

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reserve list. It will be required of the respondents to ignore those candidates, who have already joined, pursuant to the advertisement in question and those who have not turned up either for documents verification or for joining. The consideration shall be made strictly in terms of the judgment of Kuldeep Kumar (supra) and any entitlement to the petitioner shall be strictly in terms of the aforesaid judgment.

The stay applications are also disposed of."

3. The judgment dated 17.08.2020 aforesaid has been passed in light of judgment dated 20.07.2020 rendered by this Court in case of Kuldeep Kumar Vs. State of Rajasthan & Ors. (SBCWP No.2094/2019), para No.51 whereof reads thus:-

"51. As an upshot of discussions aforesaid, these writ petitions are allowed. The respondents are directed to fill the remaining post of each subject, while operating categorywise reserve list. It will be required of the respondents to ignore those candidates, who have already joined, pursuant to the advertisement in question and those who have not turned up either for documents verification or for joining."

4. While conceding that, the vacant posts have been filled in by operating category wise waiting list dated 29.12.2020, learned Additional Advocate General submits that the same has been done in light of the directions given by this Court in Kuldeep Kumar's case (supra) and Lokendra Singh's case (supra) and the same have attained finality.

5. In prima facie opinion of this Court, while deciding the case of Kuldeep Kumar (supra), this Court never intended to issue a direction to fill all the vacant posts by operating category wise reserve list.

6. A perusal of the above judgment reveals that conclusion drawn in para No.51 of the judgment is not in conformity with the discussions made in the entire judgment, more particularly para No.45 thereof and the same is in conflict with settled legal position and Rule 277A of the Rajasthan Panchayati Raj Rules 1996.

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7. This Court is, thus, prima facie of the view that the judgment dated 20.07.2020 in the case of Kuldeep Kumar Vs. State of Rajasthan & Ors. (SBCWP No.2094/2019) needs to be reviewed/reconsidered.

8. List SBCWP No.2094/2019 and all connected matters tomorrow in the category of "To be mentioned".

These matters shall be taken up at 2.00 p.m tomorrow."

3. The matters have come up on Board in pursuance of the

above order.

: RELEVANT FACTS :

4. The petitioners in the present bunch of writ petitions had

approached this Court with a prayer that the respondents be

directed to fill up the posts, which remained vacant due to non

joining of the appointed candidates. During the pendency of the

writ petition, the State decided to abort the process of further

recruitments in the meeting held under the Chairmanship of Joint

Secretary, Panchayati Raj Department on 23.06.2020, though

after the list being issued on 21.12.2018 many posts in different

subjects remained unfilled.

5. During the course of the proceedings of the writ petitions,

the respondents were directed to furnish status of vacant posts. In

furtherance of the directions, it was informed that total 2840 posts

(in different subjects) have remained unfilled (noticed in Para No.7

of the judgment dated 20.07.2020 of Kuldeep Kumar).

6. The contention of all the petitioners was that the State

should fill up the posts still lying vacant, whereas the State's stand

was that once the list dated 28.02.2019 had been issued, the

continuance of recruitment process would give cause of concern to

the candidates, who have already been given postings as the

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newly appointed/recruited candidates may get a better place of

posting despite securing lesser marks.

7. Such stand of the State did not find favour with the Court,

for which, the State was directed to fill the vacant posts vide order

dated 20th July, 2020.

8. It is noteworthy that though the fact that 2840 posts have

remained unfilled after the issuance of select list dated

28.02.2019 had come on record, but the furcation of such vacant

seats with corresponding reasons was not placed before the Court.

9. It is to be noted that State had restricted the number of

candidates called in the process of document verification equal to

the number of posts, hence, posts remained unfilled for the

following reasons:-

(i) non-joining of candidates in whose favour

appointment orders have been issued;

(ii) the candidates whose candidature has been

rejected during document verification; and

(iii) the candidates who did not turn up for document

verification at all.

: RIVAL CONTENTIONS :

10. It was also argued by Mr. Punia, learned senior advocate that

as a matter of fact, Para No.51 of the judgment in case of Kuldeep

Kumar (supra) is required to be read in light of the controversy

involved in the writ petition, and the discussion made, more

particularly what has been noticed in Para No.45 thereof. He

added that if that is done, even clarification is not required let

alone review, as the Court had not directed the manner in which

the posts would be filled.

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11. Mr. Suniel Purohit, learned counsel relied upon the judgment

of Hon'ble the Supreme Court rendered in case of Jaya Devi Vs.

State of Bihar & Ors., reported in 1996(7)SCC756 and submitted

that the Court cannot review its own order and unsettle the rights

of the parties duly adjudicated by it.

12. Mr. Manoj Bhandari, learned counsel submitted that though

there cannot be any quarrel about inherent powers of the High

Court to review its own order, but in absence of all the selected

candidates, order should not be reviewed, particularly when the

judgment rendered in the present case has been implemented.

13. Mr. Manish Vyas, learned Additional Advocate General

submitted that the judgment in case of Kuldeep Kumar (supra)

has been implemented. He submitted that similar order has also

been passed by Co-ordinate Bench of this Court in Lokendra

Singh's case (supra) for Teacher Grade-III Level-1 following the

judgment of Kuldeep Kumar's case (supra), and thus, review of

the order under consideration will create complications and will

require entire exercise to be redone by the State even for Teacher

Grade-III Level-1. He expressed concern that in the period

interregnum third party rights have been created and appointment

orders have been issued. He cautioned that any such order will

adversely affect rights of selected/appointed candidates, while

maintaining that the fresh select list issued in the month of

January, 2021 is strictly in accordance with law.

14. Learned counsel for the parties were mostly of the view that

since the judgment given in the present bunch of writ petitions

has been implemented, any endeavour to review or clarify the

judgment would disturb the rights of the candidates, who have

been selected and issued appointment orders. But, none of them

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could satisfy the Court that the direction contained in para-51, if

read in isolation, is within the precincts of the controversy and

otherwise in conformity with law.

: DISCUSSION :

15. The issue, as to whether the High court has power to review

its own order or not, does not require much deliberation. Articles

226 and 215 of the Constitution of India clothe the High Court

with an inherent power to review its own order. Though the order

which this Court proposes to pass cannot be said to be a review in

stricto senso, but even if it is labelled to be a review, in considered

opinion of this Court, the power of the High Court is plenary and

unqualified. Hence, it should be exercised, if deemed expedient

and in the interest of justice.

16. Hon'ble the Supreme Court in the case reported in

(2000)1SCC666 (M.M. Thomas Vs. State of Kerala & Anrs.) has

observed in Para No.14 as under :-

"14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary."

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17. The judgment of the Supreme Court in the case of Jaya Devi

(supra) relied upon by Mr. Purohit is clearly distinguishable on

facts. In that case, the High Court had withdrawn its earlier order

of allowing the writ petition and dismissed the writ petition, and

that too, without putting the petitioner therein to notice.

Whereas, in the instant case no order as such had been passed;

no rights have accrued in favour of the petitioners whose writ

petitions were disposed of by order dated 20.07.2020 - an

innocuous direction to fill the remaining posts was issued. A few

of them have been appointed, while remaining are raising

grievance, about the method adopted. Considering the nature of

the order being passed, even notice to the petitioners is not

required.

18. Thus, in light of the enunciation so made by Hon'ble the

Supreme Court in case of M.M. Thomas (supra), I deem it to be

my constitutional duty to correct rather clarify the apparent yet

inadvertent error, in the order dated 20.07.2020, passed in the

present writ petitions, lest it should lead to travesty of justice.

19. Though observations made in Para No.51 were meant for

those appointed candidates who did not join, but the conclusion

drawn in Para No.51 gives an impression as if, the direction to fill

the posts was to operate category-wise reserve list for all kinds of

vacancies which had fallen/accrued.

20. The petitioners of the writ petitions in the bunch of cases

decided on 20.07.2020 in an over enthusiasm of getting

appointment did not notice this incongruity nor did the State focus

on its legality, obviously in over-arching urge of providing

employment. Result - the order in Kuldeep Kumar's case (supra)

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was not subjected to challenge, and then, the State followed its

letter and not the spirit.

21. If the State has implemented the judgment dated

20.07.2020, ignoring the law on the subject and followed the

directions contained in Para No.51 of the judgment literally, if not

mechanically, in the opinion of this Court regardless of the fact

that the same can be examined in the appropriate proceedings,

the order under consideration needs to be clarified, to ward off

complications and allow illegality to perpetuate.

22. The directions given and observation made cannot be read

divorced of the context and facts involved. If discussion made

particularly in Para 45 is read carefully, one can easily discern that

Court's intention was to ensure that vacant and unfilled posts

should be filled. Hence, so called direction cannot be read in

isolation and contrary to law.

23. At this juncture, it is pertinent to note that even the State

had no confusion about the legal position about the manner in

which these vacant posts were to be filled, as is evident from the

minutes of meeting dated 25.02.2019, reproduced in para-8

(page-23) of the judgment under consideration.

24. So far as providing of opportunity of hearing is concerned, in

the opinion of this Court, no individual notice is required, as

almost all counsel, who appeared in bunch of cases led by Kuldeep

Kumar's case (supra), are present and rights of none of those

petitioners are being adversely affected. The consequence of the

clarification may perhaps, concern the candidates who have been

selected and given appointment, but then, the appointment orders

have been given in furtherance of implementation of the judgment

dated 20.07.2020 in case of Kuldeep Kumar (supra) and these

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selection/appointment are already in question, in the writ petition

being SB Civil Writ Petition No.2039/2021 (Rakesh Godara Vs.

State of Rajasthan & Ors.) and connected matters.

25. It is to be noted that in the case of Rakesh Godara (supra)

an interim order was passed by this Court on 10.02.2021,

wherefter the same was modified on 18.02.2021, having regard to

the fact that said Rakesh Kumar Godara in his writ petition has

challenged the selection/appointment of the candidates in English

subject only. The respondents have immediately issued

appointment orders to all selected candidates on the post of

Teacher Grade-III Level-2, except for the subject English.

26. It is not in dispute that as many as 2840 posts remained

unfilled/vacant on account of following three reasons :-

(i) non-joining of candidates in whose favour appointment

orders have been issued;

(ii) the candidates whose candidature has been rejected during

document verification and;

(iii) the candidates who did not turn up for document verification

at all.

27. It can easily be discerned that as the prayer in the Kuldeep

Kumar's case was for filling up the vacant posts accruing on

account of non-joining of the candidates, this Court, in Para 51 of

the operative portion of the judgment, observed that the vacant

posts be filled subject-wise while operating category-wise reserve

list, as a passing remark.

28. As 2840 posts remaining unfilled were comprising of all the

three contingencies as mentioned in para 9 above, no specific

directions was required to be given in relation to the manner in

which the unfilled posts should be filled.

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29. Hence, the Court's observation or rather direction to fill the

unfilled posts "while operating category-wise reserve list" was

meant for the posts falling vacant on account of non-joining of the

appointed candidates.

30. It has come to my notice that despite knowing the correct

legal position, the respondents have picked one line from para 51

of the judgment under consideration and have filled all the posts

in practically 'default mode'; "while operating the categorywise

reserve list", completely dehors the settled legal position. Even if,

the direction is an obitor; justice and expediency demands, it be

obliterated or at least clarified.

31. The law is well settled that category-wise reserve list is

required to be operated in the event of posts falling vacant due to

non-joining of already appointed candidates. So far as other posts

remaining unfilled are concerned (on account of rejection of

candidature during document verification and the candidates who

did not turn up at the time of document verification), the

recruiting agency is required to reshuffle the result by calling the

candidates in order of merit, irrespective of their categories.

32. Be that as it may. Since the State has taken up a categoric

stand that they have proceeded with the recruitment in

accordance with the directions contained in Para No.51 of the

judgment, 'while operating category-wise reserve list, in the

opinion of this Court, this clarification is essential rather than

being, imperative.

: CONCLUSION :

33. The order dated 20.07.2020 rendered in the present writ

petition is hereby clarified in the manner that the stipulation

"while operating category-wise reserve list" would be applicable

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only to the posts falling vacant on account of non-joining of the

appointed candidates. Remaining posts, which have fallen vacant

either on account of rejection of candidates or on account of the

candidates not turning up for document verification shall be filled

in accordance with law.

: DIRECTION :

34. Para No.29 above be read with judgment dated 20.07.2020

rendered in case of Kuldeep Kumar & Ors. (SB Civil Writ Petition

No.2094/2019). A copy of the present order be placed in each of

the writ petitions decided on 20.07.2020 and a note be appended

at the end of the order dated 20.07.2020, giving reference of the

order instant, indicating that the order has been clarified. Fresh

order of 20.07.2020 with the Note be uploaded while off-loading

the earlier order.

(DINESH MEHTA),J

s-236 ArunV/-

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