Rajasthan High Court

Ratan Lal Mishra Son Of Shri Gyarsi ... vs State Of Rajasthan on 10 November, 2021

Bench: Mahendar Kumar Goyal

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 20640/2018

1.   Ratan Lal Mishra Son Of Shri Gyarsi Lal Mishra, Aged
     About 54 Years, Resident Of V/P, Bhudoli, District Sikar
     (Raj.) (At Present Working On The Post Of Sr. Assistant In
     Gajanand        Modi      Government             Sr.    Secondary        School,
     Neemkathana, District Sikar)
2.   Mahesh Kumar Saini Son Of Shri Mahaveer Prasad Saini,
     Aged About 52 Years, Resident Of New Janta Colony, Near
     Water Well No. 5, Ward No. 42, Piprali Road, Sikar (Raj.)
     (At Present Working On The Post Of Sr. Assistant In
     Government Shri Hindi Vidhya Bhawan Secondary School,
     Sikar)
3.   Mohan Lal Chejara Son Of Shri Mangi Lal Chejara, Aged
     About 57 Years, Resident Of Near Trimurti Mandir,
     Radhakishanpura, Ward No. 29, Sikar (Raj.) (At Present
     Working On The Post Of Jr. Assistant In Government Shri
     Hindi Vidhya Bhawan Secondary School, Sikar)
4.   Vijay    Kumar       Sharma         Son     Of     Shri       Parmeshwar       Lal
     Sharma, Aged About 51 Years, Resident Of Ward No.5,
     Gandhi Nagar, Pink House Road, Sikar (Raj.) (At Present
     Working On The Post Of Sr. Assistant In Government Shri
     Kalyan Sr. Secondary School, Sikar)
5.   Rameshwar Lal Son Of Shri Mahadev Ram, Aged About 50
     Years, Resident Of Dhani Dhaylan, Village Ghatamdas,
     Post Holya Ka Bas, Srimadhopur, District Sikar (Raj.) (At
     Present     Working        On      The     Post        Of   Sr.    Assistant    In
     Government          Sr.    Secondary          School,         Holya    Ka     Bas,
     Srimadhopur, District Sikar)
6.   Purushottam Sharma Son Of Shri Bhimraj Sharma, Aged
     About 59 Years, Resident Of Gushala Road, Ward No. 12,
     Srimadhopur, District Sikar (Raj.) (At Present Working On
     The Post Of Sr. Assistant In Government Girls Sr.
     Secondary School, Thoi, District Sikar)
                                                                       ----Petitioners
                                    Versus
1.   State      Of     Rajasthan,          Through           Pr.       Secretary    To
     Government,          Education        Department,             Government       Of
     Rajasthan, Government Secretariat, Jaipur (Raj.)


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2.       Director, Secondary Education, Rajasthan, Bikaner
3.       District Education Officer, Secondary-II, Sikar (Raj.)
                                                                  ----Respondents

For Petitioner(s)         :     Mr. Ajay Gupta
For Respondent(s)         :     Mr. S. Zakawat Ali, Addl.G.C.

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

10/11/2021 This writ petition has been filed by the petitioners seeking

seniority from 09.02.1990, the date on which persons junior to

them were given appointment as LDC in pursuance of

advertisement issued by the respondents in the year 1986.

Learned counsel for the petitioners contends that the controversy

involved herein is no more res-integra and a co-ordinate Bench of

this Court has, in case of Om Prakash & Ors. Vs. State of

Rajasthan & Ors.: SB Civil Writ Petition No.21214/2017 and

other various identical matters, allowed the petition and therefore,

prays for disposal of the writ petition in similar terms.

Learned counsel for the respondents, in all his fairness, did

not dispute the aforesaid factual as well as legal position and

submitted that the instant writ petition may also be disposed of in

terms of issue by this Court in case of Om Prakash (supra).

In case of Om Prakash (supra), it was held 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 April, 2015, relying upon the adjudication in the case of Suman Bai &

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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 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

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this Court to do, would negate 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 thereof, the instant writ petition is also disposed of in

the light of direction given by this Court in case of Om Prakash

(supra). The petitioners shall be extended consequential benefits

within a period of three months from the date of submission of

copy of this order.