Rajasthan High Court - Jodhpur
Mahesh Kumar Sharma vs State Of Rajasthan on 27 October, 2021
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14952/2021
Mahesh Kumar Sharma S/o Unkar Lal Sharma, Aged About 37
Years, Village Parsoli, Tehsil Barisadari, Dist. Chittorgarh, Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Education, Government Of Rajasthan, Jaipur, Rajasthan.
2. Director, Elementary Education, Bikaner.
3. The District Education Officer (Elementary Education),
Chittorgarh.
----Respondents
For Petitioner(s) : Mr. Tanwar Singh
For Respondent(s) :
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
27/10/2021
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.
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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
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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.
Ordered accordingly."
4. For the purpose aforesaid, the petitioner shall file
representation before the competent authority giving out the
requisite details along with certified copy of the order instant
within a period of four weeks from today. On receipt of the
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representation, the concerned respondents shall decide the same,
in accordance with law within a period of eight weeks from the
date of receipt of the representation and accord notional benefits
to the petitioner from the date persons similarly situated to him
and lower in merit were given appointment.
5. Upon consideration of the representation so filed, if
respondents find the case of the petitioner to be covered by the
judgment(s) aforesaid, before giving actual benefits, an
undertaking shall be procured from the concerned 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.
6. In light of the aforequoted judgment, the present writ
petition is disposed of in the same terms, with the aforesaid
observations and directions. Stay application also stands disposed
of accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
54-Sudheer/-
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