Manohar Lal Sharma Son Of Shri Ram ... vs State Of Rajasthan
2022 Latest Caselaw 3755 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 15611/2019

Naresh Sharma Son Of Shri Ramesh Chand Sharma, Aged About
41   Years,   Resident    Of     2/40,       Rajasthan         Housing   Board,
Gupteshwar Road, Dausa. Raj.
                                                                  ----Petitioner
                                  Versus
1.     State Of Rajasthan, Through The Principal Secretary To
       Government, Department Of Education, Government Of
       Rajasthan, Government Secretariat, Jaipur.
2.     Director, Secondary Education, Bikaner (Rajasthan)
3.     District Education Officer (Secondary), Dausa.
                                                               ----Respondents

Connected With S.B. Civil Writ Petition No. 15612/2019 Banwari Lal Rajoria Son Of Shri Behari Lal, Aged About 45 Years, Resident Of Mohalla Khatikan, Near Shiv Mandir, Dausa, Raj.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary To Government, Department Of Education, Government Of Rajasthan, Government Secretariat, Jaipur.

2. Director, Secondary Education, Bikaner (Rajasthan)

3. District Education Officer (Secondary), Dausa.

----Respondents S.B. Civil Writ Petition No. 10277/2020 Manohar Lal Sharma Son Of Shri Ram Kishore Sharma, Aged About 42 Years, Resident Of Village And Post Udawala, Tehsil And District Dausa, Raj.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary To Government, Department Of Education, Government Of Rajasthan, Government Secretariat, Jaipur.

2. Director, Secondary Education, Bikaner (Rajasthan)

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3. District Education Officer (Secondary), Dausa, Raj.

----Respondents

For Petitioner(s) : Mr. Gaurav Sharma, Adv. For Respondent(s) : Mr. S. Zakawat Ali, A.G.C.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

12/05/2022 Counsel for the petitioners submits that the issue involved in

these writ petitions has been considered and decided by the

Coordinate Bench of this court in the matter of Kishore Singh &

Anr. Vs. The State of Rajasthan & Ors. (S.B. Civil Writ

No.17750/2015) and other connected matters decided on

05.09.2018 wherein the following order was passed:-

"1. Since common question has been raised in all these three writ petitions, therefore, the same have been heard together and are being decided by this common order which shall apply to all these writ petitions.

2. The facts of SB Civil Writ Petition No. 17750/2015 (Kishore Singh & anr. Vs. The State of Raj. & ors.) are being noted for the purpose of consideration.

3. The relevant facts are that the petitioners were candidates who had participated in the selection process for appointment on the post of Physical Training Instructor Grade-III in terms of advertisement issued by the respondents on 28/07/2003. A spate of litigation arose in relation to the selections conducted under the said advertisement and it seems that the Court passed orders for revising the select list. The petitioners also preferred SB Civil Writ petition No. 6428/2003 seeking directions for appointment in terms of the merit list which was to be prepared afresh. The said writ petition was allowed vide order dated 01/02/2006 with following directions:-

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" Consequently, I allow this writ petition in terms of order of this court dt. 17th December, 2004 and the respondents are directed to prepare a fresh merit list of the petitioners for the post of Physical Teacher Gr. III in which they have participated in pursuant to advertisement dt. 28th July, 2003 after taking into consideration the direction contained in notification dt. {31st July,2003} ignoring directions contained in clause [1] of circular dt. 16 th August, 2003 and if the petitioners fall in zone of selection and any person lower in the order of merit has been appointed, they may also be considered for appointment. The necessary exercise be undertaken by the respondents within a period of three months. No order as to costs."

4. The order passed by the Court(supra) was assailed in DB Civil Special Appeal (Writ) No. 1138/2006 which came to dismissed on 09/02/2007 and was further challenged in SLP No. 8590/2008 which came to be dismissed on the ground of delay as well as merits alongwith other SLPs by the Apex Court vide its order dated 18/04/2011.

5. It is noticed that in the meanwhile, the petitioners namely; Gajanand Jat, Raj Kumar Jat in SB Civil Writ Petition No. 10610/2011 and petitioner- Shiv Ram Bajiya in SB Civil Writ Petition No. 11075/2014 were appointed on 06/12/2006, 20/12/2006, and 29/05/2014 respectively.

6. All the appointments were made in reference to the advertisement of 2003 as noted above on the post of Physical Training Instructor.

7. The petitioners have already put in service of probation and have been confirmed.

8. The controversy raised by the petitioners in the present writ petitions is with regard to applicability of the old Pension Rules namely; Rajasthan Civil Services (Pension) Rules, 1996 and the rules which were made applicable on the selectees appointed under the advertisement of 2003.

9. It is the contention of learned counsel for the petitioners that although

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the appointment of the petitioners was made belatedly, their appointment would relate back to the selections which were conducted under the advertisement of 2003 and they shall have to be similarly placed as the other candidates who had been given appointment under the said advertisement and who were lower in merit to them.

10. It is contended that on account of their belated appointment, the State Government has treated them as probationer appointees in view of the amendment made in the Rajasthan Service Rules on 13.03.2006 and were paid fixed salary for two years as probationer trainees. Moreover, since the new Pension Rules have been brought into force w.e.f. 01/01/2004, the petitioners have been denied benefit of old Pension Rules. It is, therefore, prayed that directions may be issued by this Court to the respondents to provide the petitioners pay-scale and allowances as applicable on the date of advertisement and as provided to the employees who have been appointed under the said advertisement. Consequential benefits and interest have also been claimed. Benefit of old Pension Scheme has also been prayed for.

11. Per-contra, learned counsel for the respondents submits that the Rules, which have to be applied, would be those which are in-vogue on the pay when a person is appointed and since the appointment was made in 2006 and thereafter, the Rules as were in-vogue in 2006 and thereafter would be applicable on the petitioners. It is also submitted that the benefits granted to the appointees under the advertisement of 2003 earlier would not be available to the petitioners as the said directions have not been issued by the High Court at the relevant point of time.

12. Having heard counsel for both the sides, this Court finds that the Court, while allowing writ petitioner of the petitioners, had directed that if the petitioners fall in zone of selection and any person lower in merit has been appointed, the petitioners shall also be considered for appointment. Thus, the Court recognized a parity which is required to be maintained amongst the selectees under the same advertisement and the candidates who are higher in merit

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were to be given the benefits as given to the lower merit holders. Thus noticed, the contention of the respondents that the benefits as already provided to the lower meritorious candidates who were given appointment earlier would not be available to the petitioners is liable to be rejected and is unsustainable in law.

13. Once a candidate is selected and given appointment on the basis of his merit, which is also mentioned in the appointment order, the corollary is that he gets all the notional benefits from day the person lower in merit has been appointed. Accordingly, the petitioners would be entitled to be treated notionally to be in merit and entitled for notional benefits from the day the candidates lower in merit were appointed. Admittedly, the candidates lower in merit have been given benefits of the Rules which were existing in the year 2003-04.

14. It is also to be noted that the State Government has recogniozed principally the aforesaid by issuing notification dated 13/02/2007 wherein it has added note "(vii)" to Rule 8 of the Rajasthan Service Rules, 1951 as under :-

"Government of Rajasthan Finance Department (Rules Division) Notification No. F.1(2) FD (Rules)/2006 Jaipur, Dated 13 Feb 2007 In exercise of powers conferred by proviso to Article 309 of the Constitution of India, the Governor hereby makes the following rules further to amend the Rajasthan Service Rules, 1951, namely:-

1. These rules may be called the Rajasthan Service (amendment) Rules, 2007.

2. They shall come into force w.e.f. 20.2.2006.

3. In the aforesaid rules-after the existing 'Note (v)' appearing below Rule 8, a new 'Note (vi)' shall be inserted by the following namely:- '(vi) Where recruitment process was completed and appointment orders were issued prior to 20.1.2006 except to some of the selectees because of stay orders of court of any other justified reasons, appointments of

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such remaining selectees will be governed umnder the provisions of the various rules in force prior to 20.1.2006"

By order of the Governor,

(Subhsash Garg) Finance Secretary-III"

15 In view of above, these three writ petitions are allowed. The respondent- State is directed to grant benefit of pay- scale and allowances as applicable and applied on the employees who have been appointed under the advertisement of 2003 and the benefits thereto in including seniority. It is made clear that so far as the actual benefits are concerned, the same shall be made available to the petitioners from the date of their appointment while earlier benefits shall be notionally alone. The compliance be made within three months henceforth."

Counsel for the respondents has not disputed the submission

made by counsel for the petitioners.

In that view of the matter, these writ petitions stand

disposed of in view of the judgment passed by the Coordinate

Bench of this Court in the matter of Kishore Singh (supra).

(INDERJEET SINGH),J

JYOTI /11-13

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