Lokesh Kumar Samdani vs State And Ors
2022 Latest Caselaw 8935 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7352/2008

Lokesh Kumar Samdani S/o Shri Mangi Lal, aged about 34 years, R/o Gandhi Chowk, Kapasan, District Chittorgarh.

----Petitioner Versus

1. The State of Rajasthan through the Secretary, Education Department, Government of Rajasthan, Secretariat, Jaipur.

2. The District Education Officer, Elementary Education, Chittorgarh.

3. The Principal, Government Upper Primary School, Kajli Kheda, Tehsil - Pratapgarh, District - Chittorgarh.

----Respondents

For Petitioner(s) : Mr. Rajesh Choudhary Mr. Rajendra Kataria Mr. Bhawani Singh Ransi Mr. Rajendra Mulwa For Respondent(s) : Dr. Bhawana Jangid, Dy. Govt.

Counsel

HON'BLE MS. JUSTICE REKHA BORANA

Order

08/07/2022

Brief facts of the case as stated in the writ petition are as

under :

The petitioner applied for the post of Teacher Grade-III for

the District Chittorgarh and in the merit list issued for the

purpose, he found place at serial No.442. After the select list

being issued and the appointments being given to the eligible

candidates, it was found that one person named Jagdish Babu who

was at serial No.453 in the merit list was offered appointment

whereas the petitioner was not.

(2 of 6) [CW-7352/2008]

Aggrieved against the same, the petitioner preferred a writ

petition being S.B.C.W.P. No.1270/1996 decided on 13.10.2004

The said writ petition of the petitioner was allowed with the

following observations :

"The notification dated 22.03.1995 is having no application for the persons belonging to the general categories irrespective of their place of residence. In view of it the preference given to the respondent No.4 while making appointment to the post of Teacher Gr.III vis-a- vis the petitioner is absolutely illegal and is having no foundation. The act of the respondents by not giving appointment to the petitioner though he stood at quite a higher pedestal in the merit, vis-a-vis the respondent No.4, is nothing but hostile and conscious discrimination, as such the same is in violation of Articles 14 and 16 of the Constitution of India. The order of appointment dated 21.03.1996 to the extent it relates to respondent No.4 Shri Jagdish Babu Trivedi, therefore, deserves to be declared illegal and the same deserves to be quashed and set aside. The petitioner is entitled to be considered for appointment as Teacher Gr.III in place of respondent No.4.

As a consequence of declaration above, this writ petition is accepted and the order of appointment dated 21.03.1996 is quashed and set aside to the extent it relates to appointment of respondent No.4. The respondents are directed to consider the candidature of the petitioner for the purpose of appointment to the post of Teacher Grade-III from the date order of appointment was issued in favour of respondent No.4. The appointment shall be given to the petitioner after considering his candidature if he is otherwise found fit."

When the order dated 13.10.2004 was not complied with,

the petitioner preferred a contempt petition and during the

pendency of the said contempt petition he was offered

appointment vide order dated 22.03.2006. After being appointed,

when the salary was not released to the petitioner he preferred a

second contempt petition before this Court and during the

(3 of 6) [CW-7352/2008]

pendency of the same, the salary was paid and hence the second

contempt petition was also dismissed. Vide order dated

12.12.2007 the pay-scale of the petitioner was revised and he

continued in service.

Surprisingly, notice dated 21.03.2008 was served on the

petitioner with an averment that the appointment accorded to the

petitioner was not in terms of law and in terms of the earlier

judgment dated 13.10.2004 of this Court, as there were 56

persons finding place in merit between Jagdish Babu and the

present petitioner. In the notice, it was further mentioned that as

the appointment of Jagdish Babu was held to be bad by this Court,

the appointment of the petitioner was also bad as there were

more meritorious persons available in the merit list. Therefore, the

petitioner was called upon to show cause why his appointment be

not cancelled.

A detailed reply to the show cause notice was given by the

petitioner and without considering the same, the impugned order

dated 29.08.2008 was passed whereby the services of the

petitioner were terminated finding him not to be eligible to be

appointed. Against the said order dated 29.08.2008, the present

writ petition has been preferred.

It would be relevant to submit here that by virtue of interim

order dated 22.09.2008, the petitioner continues to be in service.

On merits, counsel for the petitioner submitted that firstly,

the Department has nowhere named or mentioned the so called

56 persons alleged to be meritorious than the petitioner.

Therefore, in absence of any person being named and specifically

being pointed out, it cannot be concluded that there were more

(4 of 6) [CW-7352/2008]

meritorious persons available. Secondly, the said ground of there

being persons higher in merit available was never raised by the

Department in the earlier writ petition or even in reply to the two

contempt petitions filed by the petitioner. Thirdly, the Department

did not prefer any review or appeal against the order dated

13.10.2004 and hence, the same has become final for all

purposes.

Learned counsel further submitted that the ground as raised

by the Department falls flat on the face of it as even persons

lower in merit than the petitioner have been accorded

appointment. To be specific, counsel has placed on record the

order pertaining to one Mahesh Chandra who stood at merit

No.494 and has been accorded appointment and is continuing in

service till date.

The order of termination, that is, the impugned order

nowhere speaks of the fact that there were 56 persons higher in

merit available with the Department. Therefore, the order of

termination being totally contrary to the notice served, deserves

to be quashed.

Per contra, counsel for the respondents submits that

prima-facie the appointment of the petitioner at the first instance

itself was bad. She submits that the appointment of Jagdish Babu

was set aside by the Court in the earlier writ petition on the

ground that the provisions of the Notification dated 22.03.1995

would not apply to the candidates belonging to the General

category and hence, the preference given to the candidates

belonging to the tribal areas cannot be held to be valid. She

submits that in the earlier writ petition it was specifically held by

this Court that the Notification dated 22.03.1995 would not apply

(5 of 6) [CW-7352/2008]

to the persons belonging to the General category irrespective of

the place of their residence. Therefore, the said Jadgish Chandra

and the present petitioner stood on the same footing and when

Jagdish Babu's appointment was held to be bad, appointment of

the present petitioner cannot be sustained.

Heard the counsel for the parties and perused the material

available on record.

A bare perusal of the order dated 13.10.2004 passed in the

earlier writ petition filed by the present petitioner makes it clear

that vide the said order it was held that the preference cannot be

given to a candidate on the basis of the place of residence.

Therefore on that ground, the appointment of Jagdish Babu was

held to be bad. Meaning thereby, Jagdish Babu would also be

considered to be a candidate of General category and could be

accorded appointment only on the basis of his place in merit.

Admittedly, Jagdish Babu (merit No.453) was lower in merit

than the petitioner (merit No.442) and therefore, he could not be

accorded appointment. Further, in pursuance to the order dated

13.10.2004, the petitioner had been accorded appointment in the

year 2006 and further had also been granted the benefit of

revised pay-scale in the year 2007. All of a sudden issuance of

the notice in the year 2008 without a reason or cause has not

been explained by the Department. The order dated 13.10.2004

not having been appealed against becomes final for all purposes

and the finding as recorded in the said judgment cannot be

assailed now at this stage. Moreover, even in the impugned order

the respondent authority has not pointed out as to which 56

candidates were higher in merit to the petitioner. Only a vague

statement has been made that there were other 56 persons

(6 of 6) [CW-7352/2008]

available in merit higher than the petitioner. Such a statement

without any specification cannot be appreciated by this Court and

that too at such a later stage. In addition, the order passed in

favour of one Mahesh Chandra who stood at merit No.494 is also

not disputed and the fact of Mahesh Chandra continuing in service

has also not been disputed.

In view of all the above facts, it is clear that a person lower

in merit to the present petitioner has also been accorded

appointment and is continuing in service. Moresoever the services

of the petitioner had been protected by way of interim order and

he is continuing in service till date. Therefore, in view of the

vague assertion on the basis of which the impugned order has

been passed, this Court is not inclined to uphold the impugned

order.

The writ petition of the petitioner is therefore allowed. The

impugned order dated 29.08.2008 and consequential order dated

30.08.2008 are quashed. It is directed that the petitioner would

be continued in service with all consequential benefits.

All the pending applications also stand disposed of.

(REKHA BORANA),J 89-AnilKC/-

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