Rajneesh Labana vs State Of Rajasthan
2022 Latest Caselaw 13469 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

S.B. Civil Writ Petition No. 12391/2022

1. Rajneesh Labana S/o Mahendra Labana, age 32 Years, Resident of Village and Post Bankra, Tehsil Simalwara, District Dungarpur, presently posted as Patwari Gadota, District Pratapgarh.

2. Deelip Patel S/o Rupeng Patel, age 32 Years, Resident of Siyapur, Post Salia, District Banswara, present posted as Patwari Nawagao, Tehsil and District Banswara.

3. Om Prakash Sewak S/o Narayan Lal, age 36 Years, Resident of Village and Post Divra Bada, Tehsil Sagwara, District Dungarpur, present posted as Patwari, Nandiya, Tehsil Galiakot, District Dungarpur.

4. Arjun Lal Bhoi S/o Bheru Lal, age 33 Years, Resident of Village Basad, Tehsil and District Pratapgarh, presently posted as Patwari Gotarchi, Tehsil and District Pratapgarh.

5. Kuldeep Khajja S/o Jaswant Singh, age 30 Years, Resident of Village and Post Dungra Chota, Tehsil Sajjangarh, presently posted as Patwari Tandibadi, Tehsil Sajjangarh, District Banswara.

6. Deepesh Kumar Patidar S/o Vinod Kumar, age 34 Years, Resident of Village and Post Jogpur, Tehsil Galiakot, presently posted as Patwari Josawa, Tehsil Galiakot, District Dungarpur.

7. Lokesh Patel S/o Kesev Lal, age 31 Years, Resident of Village and Post Piladar, Tehsil Sarada, Presently Posted At Patwari, Gated, Tehsil Salumber, District Udaipur.

8. Vidhya Patidar D/o Anoop Kumar, age 27 Years, Resident of Village and Post Khoden, Tehsil Garhi, Presently Posted At Patwari Lrc, Arthuna, District Banswara.

9. Jeetmal Katara S/o Sambhulal Katara, age 25 Years, Resident of Village and Post Tamtiya Rathore, Tehsil Garhi, present posted as Patwari Jolana, Tehsil Arthuna, District Banswara.

10. Santosh Kumar S/o Laxman, age 29 Years, Resident of Village and Post Katvi, District Udaipur, presently posted as Patwari Tamtiya, Tehsil Sagwara, District Dungarpur.

(2 of 13) [CW-12391/2022]

11. Narayan Lal Aahari S/o Kanaram, age 54 Years, Resident of Village and Post Sarenphala, Dhelana, presently posted as Patwari Gingala Tehsil Salumber, District Udaipur.

12. Wazida Khan W/o Abdul Hamid Khan, age 46 Years, Resident of 2-C-10, Housing Board, Banswara, presently posted as Patwari Tehsil Office, Banswara.

13. Lal Singh Rao S/o Inder Singh, age 33 Years, Resident of Village and Post Bhatwara, presently posted as Patwari Intali Khera, Tehsil Salumber, District Udaipur.

----Petitioners Versus

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

2. The Board of Revenue, Rajasthan Ajmer Through Its Registrar.

3. The Registrar, Board Of Revenue, Rajasthan Ajmer.

----Respondents

For Petitioner(s) : Mr. Khet Singh Rajpurohit. For Respondent(s) : Mr. Mrigraj Singh Rathore, Dy. G.C.

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

REPORTABLE

17/11/2022

This writ petition has been filed by the petitioners seeking a

direction to the respondents to include and consider their names

for promotion in the DPC for the post of Senior Patwari for the

year 2021-22 and include the names of the petitioners being

senior and meritorious for promotion on the post of Senior Patwari

with all consequential benefits.

It is, inter-alia, indicated in the petition that the recruitment

to the post of Patwari was conducted by the Rajasthan Staff

Selection Board wherein, the petitioners were wrongly deprived of

(3 of 13) [CW-12391/2022]

selection and as such, the petitioners approached this Court by

filing writ petitions. The writ petitions came to be allowed on

10.04.2018 (Annex.1) wherein, the petitions were allowed and the

respondents were directed to accord appointment to the

petitioners on the post of Patwari after considering all other

conditions, eligibility and merit. Further directions for grant of all

the benefits at par with other similarly situated candidates were

given. Whereafter, in compliance of the judgment (Annex.1) the

Selection Board issued final select list for TSP area on 06.07.2018,

the petitioners were declared successful to be appointed as

Patwari in TSP area assigning merit. The petitioners were accorded

appointment by the concerned Collector (Land Record) by order

dated 01.08.2018 and in the appointment orders the petitioners

were assigned their merit. It is submitted that the petitioners were

more meritorious than the candidates, who were originally

appointed pursuant to the recruitment notification and were

wrongly denied appointment, which came to be granted after the

judgment of this Court. The petitioners joined the duties and their

services were later on confirmed.

The respondents thereafter issued a final seniority list as on

01.04.2022 and the petitioners were assigned their seniority as

per their merit position as awarded by the Staff Selection Board. It

is thereafter indicated that vide notification (Annex.8) dated

21.10.2021 the schedule appended to the Rajasthan Revenue

(Land Records, Settlement and Colonization) Subordinate Service

Rules, 2019 ('Rules') came to be amended, whereby Schedule-I

appended to the Rules was substituted wherein, the post of Senior

(4 of 13) [CW-12391/2022]

Patwari was created, which was to be filled in 100% by promotion

from the Patwari requiring five years' experience on the post of

Patwari.

After issuance of the notification, the vacancies of Senior

Patwari were determined as on 01.04.2022 and in all 5000 posts

were determined to be filled up as Senior Patwari in the State, out

of which 516 posts were sanctioned to be filled up from the

Patwari working in TSP area.

However, looking to the fact that requisite candidates having

experience of five years on the post of Patwari were not available,

the Registrar, Revenue Board sought relaxation of one year in the

experience. It is then indicated in the petition that though the

petitioners have the eligibility in terms of the criteria provided,

equivalent to those, who were appointed pursuant to Recruitment-

2015, their names have not been recommended for promotion.

Annex.10 has been filed to indicate that in District Pratapgarh,

though names of those who were appointed earlier pursuant to

Recruitment-2015 have been recommended, though the

petitioners are higher in the merit, their names have not been

recommended. By way of example, it is submitted that while the

candidate, who stood in the merit at Serial No.5260 has been

recommended for promotion, whereas petitioner, namely, Deelip

Patel, who stands at Merit No.7, has not been recommended.

The petitioners approached the respondents by way of

representation inter-alia indicating that they were more

meritorious and senior than the candidates, who are to be

considered by the DPC for promotion on the post of Senior Patwari

(5 of 13) [CW-12391/2022]

and therefore, they may also be considered as they have also

notionally completed four years service as Patwari.

Learned counsel for the petitioners made submissions that

the action of the respondents in not recommending the names of

the petitioners for promotion on the purported ground of their

lacking in requisite experience on the post of Patwari in the

present case is not justified. Submissions have been made that for

no fault of the petitioners, they were denied appointment at the

time others were accorded appointment, forcing them to approach

this Court by filing writ petitions, which came to be allowed and it

was specifically directed that the petitioners would be entitled to

all the benefits at par with all similarly situated candidates, which

benefit was accorded to the petitioners by assigning them

seniority as per their merit on the post of Patwari, however, by

claiming that the petitioners do not have actual experience of four

years working on the post of Patwari, they are not eligible for

consideration for promotion on the post of Senior Patwari. It is

submitted that once this Court directed granting the petitioners all

the benefits at par with all other similarly situated candidates, the

petitioners were entitled to be treated similar for all purposes

including the experience and denial by the respondents in this

regard cannot be justified.

Reliance has been placed on Naveen Patidar vs. The State of

Rajathan & Ors. : S.B. Civil Writ Petition No.10729/2018 decided

on 03.01.2020, Government of NCT of Delhi & Ors. vs. Sh. Rakesh

Beniwal & Ors. : 2014 (213) DLT 748 and Union of India & Ors.

vs. K.B. Rajoria : (2000) 3 SCC 562.

(6 of 13) [CW-12391/2022]

Learned counsel for the respondent State opposed the

submissions. It was submitted that what is required under the

Rules is actual experience on the post of Patwari and as

admittedly the petitioners have not completed four years on the

post of Patwari, they are not eligible. Submissions have been

made that only on the ground of according seniority under the

directions of this Court, the same cannot enure for the purpose of

experience and that the claim of notional experience cannot

partake the requirement as actual experience, which is the

requirement under the Rules and therefore, the petitioners are not

entitled for consideration for promotion to the post of Senior

Patwari. Reliance has been placed on Union of India vs. M.

Bhaskar : (1996) 4 SCC 416.

I have considered the submissions made by the counsel for

the parties and have perused the material available on record.

The undisputed fact situation, which emerges is that the

recruitment for the post of Patwari was initiated by advertisement

dated 04.11.2015. The petitioners applied for the same, however,

on the purported ground of their having acquired the eligibility

qualification after the cutoff date, after document verification, they

were denied the appointment. Those in the select list were

accorded appointment on 11.10.2017.

Aggrieved against the denial of the appointment, the

petitioners filed writ petitions before this Court wherein, the Court

after coming to the conclusion that action of the respondents in

denying appointment to the petitioners was not justified, inter-

alia, directed as under:

(7 of 13) [CW-12391/2022]

"In the wake of the determination made above, the present writ petitions are allowed, and the respondents are directed to accord appointment to the petitioners on the post of Patwari, as per the main advertisement, if they have acquired the requisite qualification of RS-CIT Course before the date on which the main written competitive examination i.e. 24.12.2016 was conducted. However, such appointment shall be given after considering all other conditions, eligibility and merit. Such exercise shall be completed within a period of 30 days from the date of receipt of certified copy of this order, while granting to the petitioners all the benefits at par with all other similarly situated candidates."

Based on the directions, the petitioners were accorded

appointment on 06.08.2018. The respondents whereafter issued

State level seniority list as on 01.04.2022 wherein, the petitioners

were assigned seniority as per their merit, as is reflected from

Annex.7. In the meanwhile, the Rules of 2019 came to be

amended by notification dated 21.10.2021 providing for post of

Senior Patwari. The Schedule appended to the Rules insofar as is

relevant, inter-alia, reads as under:

1A   Senior     100%      by -          Patwari       5           years' -
     Patwari    promotion                             experience on the
                                                      post mentioned in
                                                      column 5

A perusal of the above would reveal that the post of Senior

Patwari was to be filled up 100% by promotion from the post of

Patwari and the eligibility has been indicated as five years

experience on the post mentioned in Column 5 i.e. the post of

Patwari. As the requisite number of candidates for the sanctioned

posts i.e. 5000 in total having requisite experience were not

available, the Registrar, Revenue Board sought relaxation of one

year and indicated that in case the relaxation was granted, the

available vacant posts can be filled to some extent.

The case of the petitioners is that in case their experience is

counted from the date of appointment of similarly placed

(8 of 13) [CW-12391/2022]

candidates, i.e. 11.10.2017 instead of 06.08.2018, they would be

completing four years period as on 01.04.2022 and would,

therefore, be eligible, however, denial on the part of the

respondents in this regard is not justified.

As noticed, it has been emphasized that the delay in

according appointment to the petitioners, who were all more

meritorious than those who were accorded appointment by orders

dated 11.10.2017, for no fault of theirs, they cannot be deprived

of the benefit. Submissions have also been made that as this

Court directed grant of the benefits at par with all other similarly

situated candidates, the petitioners cannot be deprived of the

same.

As noticed, this Court while deciding the petitions filed by the

petitioners came to a categoric conclusion that in terms of the

advertisement the petitioners were eligible and were wrongly

denied appointment as Patwari though they stood in the merit and

consequently while allowing the writ petitions, gave specific

directions to grant all the benefits at par with other similarly

situated candidates. The respondents have complied with the

same by assigning seniority to the petitioners, which is reflected

from Annex.7, wherein as on 01.04.2022, the petitioners have

been assigned seniority as per their merit in terms of Recruitment-

2015.

The emphasis laid by the respondents that though the

petitioners may be entitled to seniority in terms of their merit,

they cannot claim experience on the post of Patwari for the

purpose of their eligibility for consideration for promotion on the

post of Senior Patwari, cannot be countenanced.

(9 of 13) [CW-12391/2022]

As noticed, the directions of the Court were very specific

according all the benefits to the petitioners. Once the petitioners

have been accorded seniority (Annex.7) they cannot possibly be

denied promotion despite being senior to those who were

accorded appointment prior to the petitioners, though lower in the

merit, inasmuch as promotion is the consequence of seniority and

would be an inevitable corollary to grant of seniority under the

directions of this Court.

The terms 'Seniority' and 'Seniority System' have been

defined in Black's Law Dictionary 8th Edition as under:

"Seniority. 1. The preferential status, privileges, or rights given an employee based on the employee's length of service with an employer. Employees with seniority may receive additional or enhanced benefit packages and obtain competitive advantages over fellow employees in layoff and promotional decisions.

2. The status of being older or senior.

Seniority system. Employment law. Any arrangement that recognizes length of service in making decisions about job layoffs and promotions or other advancements."

Promotion is comprehended within the word 'seniority' and

there is no good reason for restricting the word seniority as

though giving of seniority but depriving of the promotion based on

seniority, which essentially negates the very purpose of according

seniority.

Further, the very fact that the petitioners have been

accorded seniority essentially under the directions of this Court on

account of their having been deprived of appointment alongwith

those less meritorious than them, the award of seniority to them,

has introduced a fiction, whose basic purpose under the direction

(10 of 13) [CW-12391/2022]

of the Court was to accord the benefit, which otherwise was not

available to the petitioners.

In similar circumstances, the Hon'ble Supreme Court in

Union of India vs. Sadhana Khanna : (2008) 1 SCC 720 while

referring to the Circulars issued by the Union of India came to the

conclusion that as the respondents therein where to be blamed for

delayed sending of letters offering appointment to the petitioners

therein and certain candidates who were junior to them were

issued letters offering appointment prior to them and that in case

they were not considered for lack of experience, a very

incongruous situation would arise, namely, that juniors will be

considered for promotion, but the senior will not, upheld the relief

granted.

In Pilla Sitaram Patrudu & Ors. vs. Union of India & Ors. :

(1996) 8 SCC 637, the Hon'ble Supreme Court came to the

conclusion that as the respondent therein was selected by direct

recruitment, he was entitled to be appointed according to Rules

and as his appointment was delayed, for no fault of his, he was

entitled to ranking given in the select list and appointment

accordingly.

In Union of India vs. K.B. Rajoria (supra), it was inter-alia

observed by the Hon'ble Supreme Court as under:

"The notional promotion was given to Krishnamoorti to right the wrong that had been done to him by his supersession on 22nd February, 1995. If Krishnamoorti is denied the right to be considered for promotion to the post of Director General on the basis of such notional promotion, particularly when the relevant provisions so provide, it would result in perpetuating the wrong done to him. That is exactly what the High Court has done."

(11 of 13) [CW-12391/2022]

Much emphasis has been laid by the respondents on the

judgment in the case of M. Bhaskar (supra) wherein, the Hon'ble

Supreme Court inter-alia observed as under:

"15. The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years' period of experience has to be reckoned, not from 11.10.1988, but from 21.9.1989. There is no dispute that the eligibility condition is 2 years experience in Grade-II. Now, this respondent having really started working in Grade-II pursuant to the order of 21.9.1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in Grade- II was notionally made effective from 11.10.1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of too actual promotion."

No doubt in the case of M. Bhaskar (supra), the Hon'ble

Supreme Court considered the matter wherein the employee was

given notional promotion from 21.10.1988 and started the actual

working from 29.01.2018 and the question was from which date

his experience should be counted. In the facts and circumstances

of that case, the Hon'ble Supreme Court opined that services for

the purpose of eligibility will be counted from the date he actually

started working. The said judgment cannot be mechanically made

applicable to the present case in the peculiar facts and

circumstances of this case, wherein this Court in specific terms

directed grant of all the benefits at par with all other similarly

situated candidates, which necessarily mean and has been

understood by the respondents by according them seniority. It is

well settled law that a judgment may be treated as precedent by

considering the relevant facts on which the judgment is based; in

the present case the rights of the petitioners already stood

(12 of 13) [CW-12391/2022]

crystallized by order passed in previous petitions filed by them,

whereas in the case of M. Bhaskar (supra), there was no prior

adjudication by any Court and therefore, the said judgment is

distinguishable.

In case, the plea raised by the respondents is accepted, the

same would negate the relief as granted by this Court, which

cannot be permitted. It is well settled that the judgments cannot

be read as Statute as the same depends on the facts and

circumstances in which the judgments are delivered and even a

single fact may change the presidential value of the judgment.

Reference in this regard may be made to Bhav Nagar University

vs. Palitana Sugar Mills Pvt. Ltd. : (2003) 2 SCC 111 and

therefore, on account of distinguishing feature in the present case

regarding prior adjudication and direction by this Court, the

judgment in the case of M. Bhaskar (supra) would have no

application.

In view of above discussion, it is apparent that on account of

directions accorded by this Court in the previous litigation, the

petitioners who are apparently higher in the merit and were

wrongly denied appointment at the relevant time and with the

intervention of the Court were accorded appointment, cannot be

deprived of the consequence of the directions issued by the Court,

as depriving them of the consequence of the seniority whereby

those far lower in the merit and seniority, would be entitled to

promotion and the petitioners would be denied of the same for no

fault of their, the petitioners are entitled to the relief as claimed.

(13 of 13) [CW-12391/2022]

Consequently, the writ petition filed by the petitioners is

allowed. The respondents are directed to accord the benefit of

seniority to the petitioners by treating them eligible for promotion

on the post of Senior Patwari by taking their experience on the

post of Patwari w.e.f. 11.10.2017, the date the persons lower in

merit/junior to them, were accorded appointment/have been

treated as eligible for promotion.

In case the persons lower in merit/junior to the petitioners

have already been accorded promotion on the post of Senior

Patwari, the respondents would hold DPC and consider the case of

the petitioners for promotion as Senior Patwari by treating them

eligible as on 01.04.2022 and in case they are found eligible for

promotion, accord them promotion with all consequential benefits

at par with those, who have been accorded promotion as Senior

Patwari, though lower in merit/junior to the petitioners. The entire

exercise be completed within a period of two months from the

date of this order.

No order as to costs.

(ARUN BHANSALI),J 35-DJ/-

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