Surendra Singh Solanki vs State Of Rajasthan
2021 Latest Caselaw 16214 Raj

Citation : 2021 Latest Caselaw 16214 Raj
Judgement Date : 26 October, 2021

Rajasthan High Court - Jodhpur

Surendra Singh Solanki vs State Of Rajasthan on 26 October, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14269/2021

Surendra Singh Solanki S/o Udai Singh Solanki, Aged About 33 Years, Village Nadi, Post Ghatiyali, Tehsil Sawar, Kekri, District Ajmer ,rajasthan.

----Petitioner Versus

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

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

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

----Respondents

For Petitioner(s) : Mr. Hans Raj Nimbar

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

26/10/2021

1. In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

2. Learned counsel for the petitioner submits that for the same

recruitment, Jaipur Bench of this Court in the case of Om Prakash

& Ors. v. State of Rajasthan & Ors. : S.B. Civil Writ Petition

No.21214/2017, vide its order dated 21.11.2017 granted relief to

the petitioner following the 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, which was based upon

adjudication made in the case of Suman Bai & Anr. v. State of

Rajasthan & Ors. : 2009 (1) WLC (Raj.) 381.

                                            (2 of 4)                    [CW-14269/2021]



3.   Stating    that    Coordinate          Bench       has        decided     many    of

petitions, without issuing notices to the respondents (SB Civil Writ

Petition No.21214/2017), learned counsel submits that the

present writ petition may also be decided in light of judgment in

the case of Om Prakash (supra). Relevant part of the order in case

of Om Prakash (supra) reads thus :

"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 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

(3 of 4) [CW-14269/2021]

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, 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.