Rajasthan High Court

Sangeeta Sharma Daughter Of Shri ... vs State Of Rajasthan on 24 May, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 7058/2022

Sangeeta Sharma Daughter Of Shri G.r. Sharma, Wife Of Shri
Harish Sharma, Aged About 31 Years, Resident Of A-60, L.s.
Nagar, Naya Khera, Ambabari, Jaipur (Raj.)
                                                                   ----Petitioner
                                   Versus
1.     State Of Rajasthan, Through Its Principal Secretary, Rural
       Development        And        Panchatiraj          Department,      Govt.
       Secretariat, Jaipur. (Raj.)
2.     The Secretary, Education Department, Govt. Secretariat,
       Jaipur (Raj.)
3.     Director, Elementary Education, Rajasthan, Bikaner (Raj.)
4.     Chief District Education Officer, Alwar (Raj.)
5.     District Education Officer, Elementary Education, Alwar
       (Raj.)
6.     Chief Executive Officer, Zila Parishad Alwar (Raj.)
                                                                ----Respondents

For Petitioner(s) : Mr. Laxmi Kant Sharma For Respondent(s) : Mr. Bharat Saini, AGC

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

24/05/2022

Counsel for the petitioner submits that the issue involved in

this writ petition has been considered and decided by the Co-

ordinate Bench of this Court in the matter of Hemalata Shrimali

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

No.3247/2015) decided on 01.04.2015 wherein Para Nos. -11 &

12 it has been held as under;

"11. It is pertinent to note that the respondents have prepared the merit lists in question for the appointment on

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the post of Teacher Gr.III(Level I and II) for various subjects, subject to the final outcome of the SLP, which is pending before the Apex Court, and accordingly have also reserved the posts for the candidates falling in above stated category 'Y' and 'Z', at the relevant place in the merit list, securing their rights, if the decision of the Apex Court ultimately is found to be beneficial to them.

12. In view of the above, it is directed that the respondents shall be at liberty to proceed further with the selection and appointment of those meritorious candidates, who have secured 60% or more marks in RTET, which appointments will be subject to the final outcome of the decision of the Apex Court in SLP No.23178-23182/2013. It is clarified that if the candidates belonging to the 'Y' and 'Z' categories stated hereinabove are found eligible as per the decision of the Apex Court in SLP referred above, they shall be given notional benefits including the benefit of seniority, but not the monetary benefits."

Counsel further submits that matters with regard to notional

benefits including seniority etc. on the post of Teacher-Grade III in

pursuance to the advertisements issued in the year 2012-13 were

further considered by the Hon'ble Supreme Court in the matter of

Vikas Sankhala & Ors. Vs. Vikas Kumar Agarwal & Ors.

reported in (2017) 1 SCC 350 wherein Para Nos. 20, 30 & 84 it

has been held as under;

"20. Insofar as General category candidates are concerned, who were the writ Petitioners in the High Court, they maintained that minimum qualifying marks were 60% in the absence of any extant reservation policy granting such concession. According to them, the State Government could not produce any such policy before the High Court and even before us and it was accepted that there was no such policy.

30. Conspicuously, thus, the essence of the TET was to infuse a qualitative content in the recruitment process and thus, set a national

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benchmark for the sake of uniformity in the level of elementary education in the country. It prescribed 60% or more marks in TET as pass marks with liberty granted to the Governments to give concessions to persons belonging to SC/ST, OBC, differently abled persons etc. in accordance with extant reservation policy.

84. These appeals are accordingly allowed in the manner indicated in this judgment, effect whereof would be as under: 84.1. Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the Government in its communication dated March 23, 2011 to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the State Government.

84.2 Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category."

Relying upon the judgments passed by the Co-ordinate

Bench of this Court in the matter of Hemlata Shrimali (supra) &

by the Hon'ble Supreme Court in the matter of Vikas Sankhala

(supra), the Co-ordinate Benches of this Court have decided

hundreds of writ petitions including recent order passed by the

Co-ordinate Bench of this Court in the matter of Sagar Mal

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

Petition No. 6344/2020) decided on 14.08.2020 wherein it has

been held as under;

"Mr. Bhati, learned counsel for the petitioners 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 petitioners following the judgment in the case of Hemlata Shrimali & Ors. v. State of Rajasthan & Ors. : S.B. Civil Writ

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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.

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

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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 than the petitioner was appointed with consequential benefits.

6. I am not inclined to accept the argument of

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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

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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."

In view of the aforesaid, following the judgment in case of Om Prakash (supra), the writ petition is disposed of in same terms. For the purpose aforesaid, the petitioners 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 representation, the concerned respondent 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 petitioners from the date persons similarly situated to them and lower in merit were given appointment.

Upon consideration of the representation so filed, if respondents find the case(s) of the petitioner (s) to be covered by the judgment(s) aforesaid, before giving actual benefits, an undertaking shall be procured from the concerned petitioner(s) to the effect that their 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/she shall also be liable for restitution of any benefits/emoluments so received.

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                                             The stay application              also      stands      disposed   of
                                        accordingly."

Counsel for the petitioner submits that the case of the

petitioner is squarely covered by the judgments passed by the Co-

ordinate Bench of this Court in the matters of Hemlata Shrimali

(supra) & Sagar Mal Meena (supra).

Counsel for the respondent(s) opposed the writ petition and

submitted that the benefit of seniority can be granted to the

petitioner, however, the notional benefits regarding pay scale

cannot be granted to the petitioner from the date when they were

not entered in service and the benefit of selection scale as well as

the pay fixation can only be granted to the petitioner as per the

rules but they have to complete probation period of two years and

the judgments (supra) will not help the petitioner. Counsel further