Rajasthan High Court - Jodhpur
Radheshyam Raidas vs State Of Rajasthan on 26 July, 2021
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9414/2021
Radheshyam Raidas S/o Shri Kastur Ji Raidas, Aged About 39
Years, R/o Chakoonda, Tehsil Arnod, District Pratapgarh,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Rural And Development And Panchayati Raj,
Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director, Elementary Education, Bikaner, District
Bikaner, Rajasthan.
3. District Education Officer (Elementary Education),
Chittorgarh, Rajasthan.
4. The Chief Executive Officer, Zila Parishad, Chittorgarh,
Rajasthan.
----Respondents
For Petitioner(s) : Mr. Vijay Kumar Gaur
For Respondent(s) :
JUSTICE DINESH MEHTA
Order
26/07/2021
1. At the very outset, learned counsel for the petitioner submits
that the controversy raised in the instant writ application is no
more res-integra in view of the adjudication made in the case of
Suman Bai & Anr. Vs. State of Rajasthan & Ors.: 2009 (1) WLC
(Raj.) 381, wherein the Coordinate Bench of this Court observed
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
(2 of 4) [CW-9414/2021]
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
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,
(3 of 4) [CW-9414/2021]
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."
2. It is further contended that for the present; the petitioner
would be satisfied, if the State-respondents are directed to
consider and decide the representation of the petitioner, in the
backdrop of the adjudication in the case of Suman Bai & Anr.
(supra), within a time frame, which he is ready and willing to
address within two weeks hereinafter.
3. In view of the limited prayer addressed; the instant writ
proceedings are closed with a direction to the petitioner to address
a representation enclosing a copy of the order in the case of
Suman Bai & Anr. (Supra).
4. In case, a representation is so addressed within the aforesaid
period, the State-respondents are directed to consider and decide
the same by a reasoned and speaking order as expeditiously as
possible in accordance with law. However, in no case latter than
three months from the date of receipt of the representation along
with a certified copy of this order.
5. Upon consideration of the representation so filed, if
respondents find the cases of the petitioner to be covered by the
judgment(s) aforesaid, before giving actual benefits, an
undertaking shall be procured from the petitioner to the effect that
his 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 shall also be liable for restitution of
any benefits/emoluments so received.
(4 of 4) [CW-9414/2021]
6. With the observations and directions, as indicated above, the
writ application stands disposed of.
7. The stay application also stands disposed of accordingly.
(DINESH MEHTA),J
117-skm/-
Powered by TCPDF (www.tcpdf.org)
