Mukesh Kumar Sharma S/O Late Shri ... vs The State Of Rajasthan
2022 Latest Caselaw 3561 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil Writ Petition No. 16922/2019

1.    Mukesh Kumar Sharma S/o Late Shri Om Prakash
      Sharma, R/o 14/a Navdeep Vihar-C, Nearby Girdharipura,
      Gandhi Path (West) Jaipur - 302021 (Raj.).
2.    Ajay Kumar Sharma S/o Shri Ramesh Chand Sharma, R/o
      171/94, Sector-17, Pratap Nagar, Jaipur 302033 (Raj.).
3.    Ashish    Kumar        Jaithaliya        S/o      Shri   Bhanwar    Lal
      Maheshwari, R/o 64, Main Market Road, Gram/post Morla,
      Via Lambha Hari Singh, Tehsil Malpura, Distt. Tonk -
      304503 (Raj.).
4.    Anoop Kumar Parashar S/o Moti Lal Parashar, R/o Holi
      Gate, Sundrawali Road, Tehsil Nagar, Distt. Bharatpur
      (Raj.).
5.    Prem Kishore Sharma S/o Roop Kishore Sharma, R/o
      Village And Post Sinsini, Tehsil Deegh, Disttt. Bharatpur -
      321201 (Raj.).
6.    Avinash Kumar Sharma S/o Shri Govind Prasad Sharma,
      R/o B-220, Hari Marg, Malviya Nagar, Jaipur (Raj.).
7.    Abhay     Pratap    Singh       S/o     Shri     Diwakar   Singh,   35,
      Panchwati Colony, Kamla Nehru Nagar, Ajmer Road,
      Jaipur (Raj.).
8.    Abdul Shahid S/o Abdul Shehjad, R/o Near Jama Maszid,
      Manohar Thana, Distt. Jhalawar - 326030 (Raj.).
9.    Akhil Yadav S/o Shri Narendra Pal Yadav, R/o Agarwal
      Dharmashala Ke Pass, Village And Post Choth Ka Barwara,
      Distt. Sawaimadhopur (Raj.).
10.   Arvind Sharma S/o Ramesh Chand Sharma, R/o Plot No.
      116, Sector-2, Vidhyadhar Nagar, Jaipur-303023 (Raj.).
11.   Daleep Singh Shekhawat S/o Madan Singh Shekhawat,
      R/o Village Bandhawala, Post Guhala, Tehsil - Neem Ka
      Thana, Distt. Sikar - 332706 (Raj.).
12.   Rajendra Singh S/o Karan Singh, R/o Village Hudeel, Post
      Hudeel, Tehsil Nawa, Distt. Nagaur - 326037 (Raj.).
13.   Satish Chand Sharma S/o Shri Nemi Chand Sharma, Aged
      About 33 Years, R/o Near Girls School, Ward No. 20,
      Street - 1, Main Bye Pass Road, Kherli, Distt. Alwar (Raj.).
14.   Narendra Singh S/o Shri Anney Singh, Aged About 38

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       Years, R/o Near New Jag Maya Temple Purani Basti
       Suthla, Near Sarswati Kirana, Jodhpur (Raj.).
15.    Dr. Chandra Shekhar Lahoti S/o Shri Ram Karan Lahoti,
       Aged About 43 Years, R/o Village And Post Kadel, Distt.
       Ajmer (Raj.).
16.    Gaurav Mishra Nagarmal Mishra, Aged About 35 Years,
       R/o Near Vishwakarma Mandir, New Colony Kuchaman
       City, Distt. Nagaur (Raj.).
17.    Trilok Prasad Chouhan S/o Shri Narayan Singh Chouhan,
       Aged About 38 Years, R/o Inside Nagori Gate, Ram
       Chowk, St. No. 6, Loriya Ka Bas, Distt. Jodhpur (Raj.).


                                                                  ----Petitioners
                                   Versus
1.     The State Of Rajasthan, Through Its Principal Secretary,
       Govt. Of Rajasthan, Administrative Reform Department,
       Govt. Secretariat, Jaipur (Raj.).
2.     The Additional Chief Secretary, Public Work Department,
       Jaipur (Raj.).
3.     The    Director,       Department            Minority    Affairs,   Govt.
       Secretariat, Jaipur (Raj.).
4.     The Commissioner, Excise Department, Udaipur (Raj.)
5.     The Director, Agriculture Department, Krishi And Pant
       Bhawan, Jaipur.
6.     The Director, Secondary Education, Bikaner (Raj.).
7.     The District Collector, Dausa (Raj.).
8.     The District Collector, Sikar (Raj.).
9.     The Principal Secretary, Department Of Personnel, Govt.
       Of Rajasthan, Govt. Secretariat, Jaipur (Raj.)
                                                                ----Respondents

For Petitioner(s) : Mr. Vigyan Shah with Mr. Kamlesh Sharma Mr. Akshit Gupta.

Mr. Harendra Neel.

Mr. Pukharaj Chawla.

Mr. Yash Joshi.

Ms. Pragya Seth.

Mr. Sarath Sharma.

For Respondent(s)         :    Dr. Ganesh Parihar, AAG with



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                               Mr. Ashish Yadav, AGC & Mr. Sameer
                               Sharma.
                               Mr. Pradeep Kalwania, GC.

HON'BLE MR. JUSTICE INDERJEET SINGH

Reportable Order

06/05/2022

1. This writ petition has been filed by the petitioners with the

following prayer:-

"In these circumstances, it is, therefore, prayed that this Hon'ble Court may be pleased to accept this writ petition and

(i) the impugned action of the respondents in not granting notional seniority, pay fixation and notional promotions at par with earlier appointed less meritorious candidates may kindly be declared illegal and arbitrary and therefore, same may kindly be quashed and set aside.

(ii) by issuing the writ of mandamus, order or direction in the nature thereof respondents may kindly be directed to

(i) grant notional seniority, pay fixation and notional promotions to humble petitioners from the date of their initial appointment;

(ii) grant arrears on the pay fixation amount with interest @ 9% per annum;

(iii) Any other appropriate order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of this case may kindly also be passed in favour of the petitioners."

2. Brief facts of the case are that in pursuance to the

advertisement dated 17.05.2011 the petitioners applied for the

post of LDC and after holding the examination, the result was

declared by the respondents. The claim of the petitioners is that in

an arbitrary manner the persons less meritorious to the petitioners

have been selected & given appointment by the respondents in

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the year 2013. The history of the present litigation reveals that

the petitioners filed writ petition, outcome thereof became subject

matter of challenge before the Division Bench of this court.

3. The Division Bench of this Court after taking an overall view

of the matter & examining at length the issue in the matter of

Saurabh Kumar Kothari & Ors. Vs. RPSC & Ors (D.B. Special

Appeal (Writ) No.1379/2014 and other connected matters) vide

judgment dated 03.02.2016 finally concluded as under :-

"Consequently, the special appeals stand allowed and the judgments passed by the ld.Single Judge dt.02.04.2012, 01.05.2014, 25.07.2014, 03.09.2014, 01.10.2014 & 09.10.2014 in relation to the recruitment process held for the post of Lower Division Clerk, pursuant to the advertisement dt.17.05.2011 are quashed and set aside and the writ petitions assailing validity of proviso to R.29 of Rules, 1999 to the extent that candidate has to secure a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer are without substance and accordingly stand dismissed. The Commission is directed to prepare a fresh merit list of all the candidates who have participated in the combined competitive examination, 2011 held for the post of Lower Division Clerk, pursuant to advertisement dt.17.05.2011 and the corrigendums issued in furtherance thereto and obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination and upload such fresh merit list on its official website and after taking note of the objections, if any, within seven days thereafter recommend the names of successful candidates to the State Government keeping in view their order of merit, as per the number of advertised vacancies and the State Government is directed to process the same thereafter and give appointments to the selected candidates after due compliance of the requirement of law & the scheme of Rules.

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The process shall be completed within 90 days. At the same time, State Government is at liberty to cancel the appointments of such of the candidates who failed to qualify with a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase- II or were not eligible to appear in Phase-II of the competitive examination held for the post of Lower Division Clerk under the scheme of Rules, after due compliance & in accordance with law."

4. In compliance of the judgment passed by the Division Bench

of this court in the matter of Saurabh Kumar Kothari (supra) the

petitioners were appointed by the respondents in the year 2016-

17. Both the parties confirmed the fact that the said judgment has

not ever been assailed by any of the party before the Hon'ble

Supreme Court, thus the said judgment has attained finality.

5. Counsels for the petitioners submitted that despite liberty

given by the Division Bench of this court in the matter of Saurabh

Kumar Kothari (supra), the respondents have not terminated

services of ineligible persons who have been ranked senior to the

petitioners. Counsels further submitted that according to Rule 37

of the Rajasthan Subordinate Offices Ministerial Service Rules,

1999 (hereinafter to be referred as 'Rules of 1999') seniority of

the persons appointed to the post encadred in the service shall be

determined from the date of appointment. Rule 37 (i) of the Rules

of 1999 provides as under:-

"37(1)(i) the seniority inter se of the persons appointed by direct recruitment to the post of Lower Division Clerk & Stenographer on the result of one and the same examination except those who do not join service when a vacancy is offered to them, shall follow the order in the list prepared under Rule 28 and 29 respectively.

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37(1)(i)(i-A) if two or more persons are appointed to the service during the same year a person appointed by promotion shall be senior to a person appointed by direct recruitment."

6. Counsels further relied upon the provisions contained in Rule

28 & 29 of the Rules of 1999, which reads as under:-

"28. Selection to the post of Lower Division Clerk - (1) The Commission shall prepare merit list of the candidates declared successful in the Lower Division Clerks Examination.

Provided that the Commission may, to the extent of 50% of the finally intimated vacancies keep names of the suitable candidates on the reserve list. The names of such candidates may, on receipt of requisition within 6 months from the date on which the original list is forwarded by the Commission to the Government in the Administrative Reforms Department in such manner as the Commission may decide, be recommended in the order of merit to the Government in the Administrative Reforms Department for appointment against additional vacancies;

Provided further that the Commission shall also prepare separate list of the candidates belonging to the Scheduled Castes and the Scheduled Tribes, Other Backward Classes, Woman candidates etc in accordance with the reservation prescribed by the Government from time to time and it shall not be obligatory for the Scheduled Castes and Scheduled Tribes to obtain the percentage of qualifying marks in the type writing test prescribed in these Rules but the marks obtained in the type writing test shall be added to the aggregate marks obtained by them. (2) The names of the candidates shall be arranged in the respective lists in the order of aggregate marks obtained by them in the examination.

(3) The Commission may award grace marks upto one in each of the papers and upto three in aggregate to enable a candidate to qualify at the examination who might otherwise have not qualified in the said examination;

Provided that the Commission shall not recommend any candidate who has failed

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to obtain a minimum of 40% marks in each of the paper of the Phase-I and a minimum of 36% marks in each of the paper of the Phase-II of the competitive examination for the post of Lower Divison Clerk.

(4) The Commission shall send these lists to Administrative Reforms Department of the Government Secretariat who shall notify it for the information of all concerned Appointing Authorities. From out of these lists, Administrative Reforms Department shall allot candidates to various Appointing Authorities on the basis of the position obtained by them in the merit list prepared under sub-rule (1) above and in accordance with the rosters for Scheduled Castes/Scheduled Tribes/Other Backward Classes maintained by the Department. While doing so, the Administrative Reforms Department will try to allot to the candidates the District opted by him/her in the application form, in order of merit as far as possible. In case of non-availability of vacancies in the District opted by a candidate he/she may be allotted any other District of the State. The Appointing Authority shall satisfy himself/herself by making such enquiry as may be considered necessary that such candidates are otherwise suitable in all respect for appointment to the posts.

29. Selection for Appointment to the post of Stenographer :- (1) The Commission shall prepare lists of candidates declared successful in the Stenographer's Competitive Examination. Such a list shall be sent by the Commission to the Administrative Reforms Department in the Secretariat who shall notify them for information of all the Appointing Authorities. From out of such list the Administrative Reforms Department shall allot candidates to various Appointing Authorities in accordance with the rosters maintained in the Department concerned.

Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 40% marks in each of the paper of the Phase-I and a minimum of 36% marks in each of the paper of the Phase II of the competitive examination for the post of Stenographers.

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           (2) Before making appointment the
           Appointing     Authority   concerned    shall

satisfy himself/herself by making such enquiry as may be considered necessary that such candidates are otherwise suitable in all respects for appointment to the posts of Stenographers."

7. Counsels further submits that seniority of the petitioners

according to Rule 37 of the Rules of 1999 shall follow the order in

the list prepared under Rule 28 & 29 respectively. Counsels further

submits that despite fresh merit list having been prepared by the

respondents in compliance of the judgment passed by the Division

Bench of this Court in the matter of Saurabh Kumar Kothari

(supra), still the respondents have not given seniority to the

petitioners in accordance with Rule 37 read with Rule 28 & 29 of

the Rules of 1999.

8. Counsels for the respondents submitted that the petitioners

have been given appointment in the year 2016-17 in compliance

of the judgment passed by the Division Bench of this Court in the

matter of Saurabh Kumar Kothari (supra), however, it is within the

sole domain of the Government to terminate services of the

ineligible persons who were given appointment by them in the

year 2013. Counsels further submitted that the petitioners cannot

claim seniority of the period prior to their appointment i.e. 2016-

17 as no such directions were issued by the Division Bench of this

Court in the matter of Saurabh Kumar Kothari (supra).

9. Heard counsels for the parties, perused the record and also

gone through the judgment and the provisions of law.

10. A similar controversy arose for consideration before the

Hon'ble Supreme Court in the matter of C. Jayachandran Vs.

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State of Kerala and others, reported in (2020) 5 SCC 230

where in paras-35 to 39 it was held as under :-

"35. The earlier writ petition filed by the appellant was allowed on 13-09-2010. The Division Bench of the High Court has directed to re-cast the seniority amongst the seven shortlisted candidates. The appellant was one of them. The challenge to the said order by three affected candidates remained unsuccessful when SLP was dismissed by this Court on 8-10- 2010. The SLP was filed by the candidates who were granted benefit of moderation of marks. Once the direction of the Division Bench has attained finality, the Appellant was entitled to seniority as per the select list to be revised as per merit of the candidates. In terms of Rule 6(2), the seniority is to be determined by the serial order in which the name appeared in the appointment order. The argument of the learned Counsel appearing for respondent that the appellant was not appointed by the same appointment order, therefore, the appellant cannot claim seniority is not tenable. The appellant was entitled to be appointed along with other three candidates but because of the action of the High Court in adopting moderation of marks, the appellant was excluded from appointment. The exclusion of Appellant from appointment was on account of an illegal act by the High Court which has been so found by the judgment dated 13- 09-2010. Since the select list has to be revised, the appellant would be deemed to be the part of the appointment along with other candidates in the same select list. As the actual date of appointment was on 24- 02-2011, the appellant cannot actually be treated to be appointed on 30th March, 2009 but is entitled to notional appointment from that date and consequential seniority.

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36. In Sanjay Dhar, a three-Judge Bench of this Court held as under: (SCC P.191, para

16) "16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6-3-1995 and assigned a place of seniority consistently with his placement in the order of merit in the select list prepared by J & K PSC and later forwarded to the Law Department."

37. In Lakshmana Rao Yadavalli, this Court held as under: (SCC p.397, para 13)

"13. For the reasons recorded in Lakshmana Rao Yadavalli v. State of A.P., the present appeals are allowed and it is directed that the High Court as well as the respondent State will do the needful for giving appointment to the appellant with retrospective effect i.e. from the date on which she ought to have been appointed, however, she shall not be paid salary for the period during which she has not worked as a District and Sessions Judge. We are sure that the Respondents will do the needful for the appointment of the appellant at an early date."

38. In view of the above, the appellant having been participated in the same selection process and in view of the direction of the Division Bench of the High Court, was rightly placed by the High Court by giving him revised select list placing him at Sl. No. 41 by pushing Badharudeen from general category candidate to OBC category candidate at Sl. No. 42.

39. The appellant was wrongfully excluded from the process of appointment on account of an illegal and arbitrary grant of moderation of marks. The Government in its Order dated 22-12-2010 cancelled the appointment of three District and Sessions Judges who were granted benefit of moderation. Badharudeen was earlier assigned general category seat but since the appellant was higher in merit, Badharudeen was pushed down and adjusted against OBC category seat at Sl. No. 42. Badharudeen has not challenged

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his pushing down at Sl. No. 42 either before the learned Single Bench of the High Court or before the Division Bench of the High Court or even before this Court. Therefore, as Respondent, he cannot be permitted to dispute the grant of seniority to the ppellant at Sl. No. 41. The judgment referred to by learned Counsel is not helpful to the arguments raised as the appellant therein sought seniority as direct recruit from the time when the vacancies occurred. To raise such an argument, reliance was placed upon judgment of this Court reported in Union of India and Ors. v. N.R. Parmar, wherein this Court held that a person is disentitled to claim seniority from the date he was not borne in the service. The said finding is in the context of the claim of the appellant to claim seniority from the date of availability of the vacancies; whereas in the present case, the Appellant is claiming seniority from the date the other candidates in the same selection process were appointed but the appellant is excluded on account of an illegal act of the High Court of the moderation of marks. Therefore, the said judgment is not of any help to the arguments raised."

11. It is no doubt true rather admitted by both the parties that

the petitioners herein were given appointment pursuant to the

directions issued by the Division Bench of this Court in the matter

of Saurabh Kumar Kothari (supra) wherein while allowing the

writ petitions the Division Bench of this Court specifically

directed ; (a) to prepare a fresh merit list of all the candidates

who have participated in the combined competitive examination,

2011 held for the post of Lower Division Clerk, pursuant to

advertisement dt.17.05.2011 and (b) further directed to

recommend the names of successful candidates to the State

Government keeping in view their order of merit, as per the

number of advertised vacancies and the State Government was

further directed to process the same thereafter and give

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appointments to the selected candidates after due compliance of

the requirement of law & the scheme of Rules. In this background

of the matter, when in compliance of the specific directions of the

Division Bench of this Court, the fresh merit list has been prepared

by the respondents which is obviously expected to be in terms of

the relevant rules, then the seniority & notional benefits should

also have been awarded, non-consideration & non-grant thereof

has become the reason for which the petitioners have approached

this Court by filing the joint writ petition and upon an overall

scrutiny of the record I am of the view that the submissions of the

petitioners' counsels hold legal force.

12. In view of the discussion made here-in-above, this writ

petition filed by the petitioners deserves to be allowed for the

reasons; firstly, the petitioners were given appointment in

compliance of the judgment passed by the Division Bench of this

Court in the matter of Saurabh Kumar Kothari (supra) in which

liberty was granted to the respondents to terminate services of

ineligible persons, which although has not been done by the

respondents and such persons are still working in the Department,

that too over & above to the petitioners who are higher in the

merit; secondly, in view of Rule 37 of the Rules of 1999 interse

seniority shall follow the order in the list prepared under Rule 28 &

29 of the Rules, 1999 respectively and admittedly, the

respondents have prepared the fresh select list of the selected

candidates in compliance of the judgment passed by the Division

Bench of this court in the matter of Saurabh Kumar Kothari

(supra); thirdly the judgment in the matter of Saurabh Kumar

Kothari (supra) was passed by the Division Bench of this Court

on 03.02.2016 and it is not the case of the respondents that the

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said judgment ever became subject matter of challenge before the

Hon'ble Supreme Court, meaning thereby the said judgment has

already attained finality, then respondents were duty bound to

obey and comply the directions contained in the judgment passed

in the matter of Saurabh Kumar Kothari (supra) in letter and spirit

but on the contrary the respondents kept the matter pending for

grant of seniority & notional benefits as per Rules for more than

five years with them and; lastly, the petitioners have participated

in the same selection process and their appointment got delayed

due to negligence of the respondents, therefore, the petitioners

are entitled for the benefits of notional fixation i.e. seniority,

promotion & pay scale etc. from the date when persons were

appointed in the same selection process.

13. In that view of the matter, this writ petition is allowed. The

respondents are directed to give notional benefits like seniority

and promotion to the petitioners from the date when the less

meritorious persons were given appointment by the respondents

in pursuance to the advertisement dated 17.05.2011. All the

pending applications stand disposed of.

(INDERJEET SINGH),J

MG/258

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