Rajasthan High Court - Jodhpur

Vaibhav Kumar Nayak vs The State Of Rajasthan on 6 October, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13912/2021

1. Vaibhav Kumar Nayak S/o Dayalalnayak, Aged About 33 Years, R/o Village Lorwara, Post Gamdi Ahada, District Dungarpur, Rajasthan.

2. Vijyendra Kumar Meena S/o Laluram Meena, Aged About 31 Years, R/o Vpo Katev, Tehsil Rishabhdeo, District Udaipur, Rajasthan.

3. Mohan Lal Parmar S/o Gautam Lal Parmar, Aged About 30 Years, R/o Vpo Katev, Tehsil Rishabhdeo, District Udaipur, Rajasthan.

4. Subhash Chandra Hadat S/o Nanginra Hadat, Aged About 30 Years, R/o Village Adivat, Post Reta, Tehsil Jonthari, District Dungarpur, Rajasthan.

5. Mahendra Kumar Meena S/o Surajmal Meena, Aged About 31 Years, R/o Vpo Nayagaon, Tehsil Kherwara, District Udaipur, Rajasthan.

6. Dayalal Bariya S/o Surji Bariya, Aged About 30 Years, R/o Village Nareli, Post Mewara, District Dungarpur, Rajasthan.

7. Hitpal Singh Shaktawat S/o Bahadur Singh Shaktawat, Aged About 32 Years, R/o Village Karwakhas, Post Parda, Itiwar, Tehsil Aspur, District Dungarpur, Rajasthan.

8. Yagnanarayan Singh Chouhan S/o Narendra Singh Chouhan, Aged About 34 Years, R/o Bankoda, Tehsil Aspur, District Dungarpur, Rajasthan.

9. Babu Lal Meena S/o Roopji Meena, Aged About 35 Years, R/o Vpo Kanodiya, Post Biluda, Tehsil Saabla, District Dungarpur, Rajasthan.

10. Dharnesh Dwivedi S/o Narendra Dwivedi, Aged About 42 Years, R/o Vpo Khadagada, Tehsil Sagwara, District Dungarpur, Rajasthan.

11. Vishnu Prasad Patidar S/o Manji Patidar, Aged About 34 Years, R/o Village Badgi, Post Chitri, Tehsil Galiyakot, District Dungarpur, Rajasthan.

12. Vinod Patidar S/o Dungar Patidar, Aged About 30 Years, R/o Village Udaiya, Post Silohi, Tehsil Galiyakot, District Dungarpur, Rajasthan.

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13. Gopal Krishna Katara S/o Kana Katara, Aged About 29 Years, R/o Village And Post Nayagav, Surata, Tehsil Jonthari, District Dungarpur, Rajasthan.

14. Jagdeesh Chandra Roat S/o Ramesh Chandra Roat, Aged About 30 Years, R/o Village Gundighata, Post Karwara, Tehsil Jonthari, District Dungarpur, Rajasthan.

15. Sanjay Kumar Katara S/o Lalu Ram Katara, Aged About 28 Years, R/o Vpo Bhinda, Tehsil Jonthari, District Dungarpur, Rajasthan.

16. Rajendra Katara S/o Ishwar Lal Katara, Aged About 31 Years, R/o Vpo Vassi, Tehsil Dungarpur, District Dungarpur, Rajasthan.

17. Tejpal Roat S/o Gatu Lal Roat, Aged About 30 Years, R/o Village Dhamrmpuri, Post Bedasa, Tehsil Dungarpur, District Dungarpur, Rajasthan.

18. Jitendra Kumar Katara S/o Laxmanlal Katara, Aged About 32 Years, R/o Village Gudighata, Post Karawada, Tehsil Jhonthari Pal, District Dungarpur, Rajasthan.

19. Brijraj Singh Chouhan S/o Mahendra Singh Chouhan, Aged About 40 Years, R/o Village Bedasa, Tehsil Simalwara, District Dungarpur, Rajasthan.

20. Haripal Singh Ahada S/o Dalpat Singh Ahada, Aged About 28 Years, R/o Village Padli Gujreshwar, Post Sansarpur, Tehsil Jhontharipal, District Dungarpur, Rajasthan.

21. Kailash Chandra Jat S/o Bholu Ram Jat, Aged About 37 Years, R/o Village Ganoli, Post Ganeti, Tehsil Todaraisingh, District Tonk, Rajasthan.

22. Heera Chand Regar S/o Chhagan Lal Regar, Aged About 32 Years, R/o Village Sadari, Post Sadara, Tehsil Sawer, District Ajmer, Rajasthan.

23. Ramraj Mali S/o Nanda Ram Mali, Aged About 35 Years, R/o Village Nayagav, Maliyon Ka, Post Mehrukalan, Tehsil Sawar, District Ajmer, Rajasthan.

24. Deepak Kumar Teli S/o Krishan Gopal Teli, Aged About 30 Years, R/o Jain Mandir Ke Pass, Village And Post Sadara, Tehsil Sawar, District Ajmer, Rajasthan.

25. Kalu Ram Choudhary S/o Bajrang Lal Choudhary, Aged About 40 Years, R/o Village Ginoli, Post Ganeti, Tehsil Todaraisingh, District Tonk, Rajasthan.

                                                               ----Petitioners


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                                    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.

----Respondents

For Petitioner(s) : Mr. Hansraj Nimbar.

For Respondent(s)         :


             HON'BLE MR. JUSTICE ARUN BHANSALI
                            Order

06/10/2021

It is submitted by learned counsel for the petitioners that for

the same recruitment, similarly situated petitioners had

approached 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), 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

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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 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

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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, 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).