State Of Raj. And Ors vs Ramesh Chandra Patidar And Ors
2022 Latest Caselaw 9436 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 658/2017

1. State Of Rajasthan Through Secretary, Panchayati Raj Department, Government Of Rajasthan, Jaipur.

2. Director, Elementary Education, Rajasthan, Bikaner.

3. District Education Officer, Elementary Education, Banswara

----Appellants Versus

1. Ramesh Chandra Patidar Son Of Shri Hengji Patidar, Resident Of Village Post Bori, Tehsil Gadhi District Banswara.

2. Dinesh Chandra Sewak, Resident Of Vidhya Niketan Secondary School, Ganora District Banswara.

3. Prakash Chandra Upadhyaya Son Of Shri Reva Shanker, Resident Of Village Post Thikaaria Dahod Road, District Banswara.

4. Mamta Adhikari Wife Of Shri Umesh Adhikari, Resident Of Kalika Mata, Banswara.

5. Govind Singh Rao Son Of Shri Praveen Singh Rao, Resident Of 2 A 27, Behind Shiv Hanuman Mandir, Housing Board, Banswara

6. Gopal Singh Rao Son Of Shri Jagdish Singh Rao, Resident Of Village Bansla Tehsil Bagidora District Banswara.

7. Sudheer Pandya Son Of Shri Surya Shanker Pandya, Resident Of 59, Sharda Nagar, Link Road, Banswara.

8. Sharmistha Bhatt Wife Of Shri Jenesh Bhati, Resident Of Rati Taji, Gali No. 3, Banswara.

9. Reema Shah Wife Of Prashan Shah, Resident Of Rati Taji, Gali No. 3, Banswara.

----Respondents Connected With D.B. Spl. Appl. Writ No. 659/2017

1. State Of Rajasthan Through Secretary, Panchayati Raj Department, Government Of Rajasthan, Jaipur.

2. Director, Elementary Education, Rajasthan, Bikaner.

3.    District    Education         Officer,       Elementary       Education,


                                            (2 of 7)                   [SAW-658/2017]


         Banswara
                                                                   ----Appellants
                                     Versus

Rakesh Kumar Jain Son Of Shri Babu Lal, By Caste Jain Resident Of Village Johara, Tehsil Bamanwas, District Swami Madhopur Raj.

----Respondent

For Appellant(s) : Mr. Pankaj Sharma, A.A.G. For Respondent(s) : Mr. Akhilesh Rajpurohit Mr. Rajat Dave

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

20/07/2022

These Special Appeals (writ) have been filed against orders

dated 15.07.2013 and 27.04.2017 passed by learned Single Judge

whereby the writ petitions and review petitions preferred, were

dismissed. The writ petitions preferred by the

respondents/petitioners under Article 226 of the Constitution of

India before the learned Single Judge were allowed and the

District Education Officer, Elementary Education, Banswara was

directed to comply with the direction/order passed by the Director,

Elementary Education, Rajasthan, Bikaner dated 10.08.2011.

Brief facts giving rise to the controversy involved in the

present appeals necessary for adjudication are that the writ

petitions were preferred by the respondents/petitioners stating

inter alia that they had participated in the selection process for

appointment on the post of 'Prabodhak', pursuant to

Advertisement dated 31.05.2008 published by the

appellants/respondents. The post of 'Prabodhak' is governed by

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the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008

(hereinafter referred to as the Rules of 2008). In the final merit

list issued by the appellants/respondents for appointment to the

post of 'Prabodhak', the names of respondents/petitioners were

excluded. On inquiry, the respondents/petitioners found out that

14 candidates belonging to reserved category, who had availed the

benefit of age relaxation at the time of selection process have

been accorded appointment against the vacancies of general

category candidates.

The respondents/writ petitioners being aggrieved with the

aforesaid action, submitted representations to the authorities of

the respondent department for ventilating their grievances. The

District Education Officer, Elementary Education, Banswara,

forwarded the representation to the Director, Elementary

Education, Rajasthan, Bikaner vide letter dated 27.08.2010 stating

that out of 1292 posts in Banswara, 957 persons had been

appointed to the post of 'Prabhodak', out of which 14 persons

belonging to reserved category were not in the prescribed age

limit and had been appointed against the unreserved vacancies.

Thereafter, the Director, Elementary Education, Rajasthan,

Bikaner, vide order dated 10.08.2011 directed the District

Education Officer, Elementary Education, Banswara to shift these

14 candidates from general to reserved category and accord

appointment to the persons belonging to the general category in

their place, as per the merit. The order dated 10.08.2011

however, was not complied with by the District Education Officer,

Elementary Education, Banswara.

The respondents/writ petitioners preferred the writ petitions

before the learned Single Judge praying that the District Education

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Officer, Elementary Education, Banswara be directed to comply

with the order dated 10.08.2011. The learned Single Bench

disposed of the writ petitions vide order dated 15.07.2013,

directing the District Education Officer, Elementary Education,

Banswara to comply with the order dated 10.08.2011 passed by

the Director, Elementary Education, Rajasthan, Bikaner.

The respondents/writ petitioners filed Review petitions before

the Single Judge against orders passed by learned Single Bench

dated 15.07.2013 on the ground that the direction to comply with

the order dated 10.08.2011, passed by the Director, Elementary

Education, Rajasthan, Bikaner, could not be given effect since it

had been withdrawn vide subsequent order dated 07.10.2013. It

is submitted that prior to issuance of order dated 07.10.2013, the

matter was examined by the committee consisting of Hon'ble Law

Minister, Chief Secretary, Principal Secretary (Law), Principal

Secretary (Education) and the Commissioner (Education) in the

light of Rules of 2008. The above mentioned committee concluded

thus:-

"The department had considered these 14 candidates as general candidates in view of their higher merit and as far as their age is considered, they were within age limit as per rule 13 (5) of Prabodhak Service Rules, 2008. Therefore, these 14 SC/ST candidates have been rightly considered against general vacancies."

The learned Single Judge, after hearing the parties,

dismissed the review petition vide order dated 27.04.2017,

(5 of 7) [SAW-658/2017]

holding that there is no error apparent on the face of record,

warranting review of the order dated 15.07.2013.

Shri Pankaj Sharma AAG representing the

appellants/respondents, submitted that the candidates belonging

to reserved category were within the age limit at the time of their

initial appointment in government schemes/projects. Therefore, in

view of rule 13(v) of the Rules of 2008, at the time of

appointment to the post of 'Prabodhak', they were rightly migrated

to the vacancies pertaining to general candidates as per merit. He

cited before us rule 13(v) of Rules of 2008 which reads as under:

"13. Age. -- A candidate for direct recruitment to a post enumerated in the Schedule must have attained the age of 23 years and must not have attained the age of 35 years on the first day of January following the last date fixed for receipt of applications: Provided --

(v) that the person serving under the educational project in the State viz Rajiv Gandhi Pathshala/Shiksha Karmi Board/Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme shall be deemed to be within age limit, had they been within the age limit when they were initially engaged even though they may have crossed the age limit at the time of direct recruitment."

He further submitted that the order dated 10.08.2011

passed by Director, Elementary Education, Rajasthan, Bikaner

stood withdrawn by the said authority vide subsequent order

dated 07.10.2013. The respondents/writ petitioners did not

challenge the subsequent order and therefore, it attained finality.

He stated that the subsequent order/event was brought to the

(6 of 7) [SAW-658/2017]

notice of the learned Single Judge in the review petition. The

learned Single Bench was duty bound to consider the subsequent

order/event in the review petition.

Per contra, Shri Rajat Dave and Akhilesh Rajpurohit,

appearing on behalf of the respondents/petitioners submitted that

the 14 candidates belonging to reserved category were overage at

the time of appointment on the post of 'Prabodhak' therefore,

even if they were within age at the time of their initial

appointment in the government schemes/projects, they ought not

to have been migrated from reserved category to general

category. Thus, the migration from reserved to unreserved

category is per se illegal since they had availed age relaxation.

The learned counsel for the respondents strongly supported the

judgments passed in the writ petitions and review petitions.

Heard learned counsel for the parties and perused the

material available on record.

It is not in dispute before us that the Director, Elementary

Education, Rajasthan, Bikaner vide order 07.10.2013 withdrew the

earlier order dated 10.08.2011. The effect of the order dated

07.10.2013 is that the order dated 10.08.2011 ceased to exist.

The order dated 10.08.2011 cannot be given effect, since it had

been withdrawn. Under these circumstances, the

respondents/petitioners should have challenged the order dated

07.10.2013, if they so desired. Consequently, in view of the

challenge not having been laid to the order dated 07.10.2013, no

relief could be granted to the respondent/petitioner.

(7 of 7) [SAW-658/2017]

In the result, the appeals are dismissed being devoid of

merit. No order as to costs.

                                   (KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J
                                   113-114-KshamaD/-









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