Anil Kumar Soni S/O Shri Kailash ... vs State Of Rajasthan
2022 Latest Caselaw 6741 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 6636/2020

1.   Anil Kumar Soni S/o Shri Kailash Chand Soni, Aged About
     45 Years, R/o 148, Vivek Vihar Jagatpura, Jaipur, At
     Present     Working         As    Lecturer        (Sahitya),      Govt.   Shri
     Hanumat Varishtha Upadhyay Sanskrit School Sanskrit
     School Bad Ke Balaji, Sarangpura, Jaipur
2.   Man Singh Kushwah S/o Shri Devi Singh Kushwah, Aged
     About 46 Years, R/o Village Mahal, Post Banshi (Vagri)
     Tehsil Roopwas, District Bharatpur, At Present Working As
     Lecturer (Sahitya), Govt. Varishtha Upadhyay Sanskrit
     School Sanskrit School Savenakhera, District Udaipur
3.   Gopal Kumar Sharma S/o Shri Shanker Lal Sharma, Aged
     About 38 Years, R/o Village And Post Jawanpura, Via
     Bhabaru, Tehsil Viratnagar, District Jaipur At Present
     Working         As    Lecturer        (Jyotish),        Govt.     Dhuleshwar
     Varishtha Upadhyay Sanskrit School Sanskrit School
     Manoharpur District Jaipur
                                                                     ----Petitioners
                                      Versus
1.   State      Of    Rajasthan,          Through          Principal     Secretary,
     Department Of Sanskrit Education, Govt. Of Rajasthan,
     Secretariat, Jaipur.
2.   Principal Secretary, Department Of Personnel, Govt. Of
     Rajasthan, Secretariat, Jaipur.
3.   Secretary, Rajasthan Public Service Commission Ajmer,
     Ghooghra Ghati, Jaipur Road, Ajmer
4.   Deputy Secretary, Shiksha (Group-6), Govt. Of Rajasthan,
     Secretariat, Jaipur
5.   Director, Sanskrit Education, Dr. Radhakrishnan Shiksha
     Sankul, J.l.n. Marg, Jaipur
6.   Shri Jagdish Verma S/o Shri Panna Lal Manoharpur, Aged
     About 53 Years, R/o Shripuram Colony, Gurjar Ki Thadi,
     Jaipur.
7.   Shri Nagendra Kumar Arya S/o Shri Chunnilal Khauri,
     Aged About 49 Years, R/o 65, Tagore Nagar, Kartarpura,
     Jaipur.
                                                                 ----Respondents

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                              Connected With

S.B. Civil Writ Petition No. 6659/2020

1. Satish Patidar S/o Shri Ramesh Chandra Patidar, Aged About 40 Years, R/o H. No. 185, Shyama Prasad Mukharjee Nagar, Niwai, District Tonk

2. Dr. Raghuveer Prasad Sharma Son Of Shri Devi Sahay Sharma, Aged About 40 Years, Resident Of 13, Shiv Shankar Colony, Near Mansrovar Metro Station, Jaipur.

3. Raghvendra Pachgaiyan S/o Shri Shriniwas, Aged About 40 Years, R/o Shri Harish, Shastri Gali, Dhoolkot, Dholpur.

----Petitioners Versus

1. The State Of Rajasthan, Through Its Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur.

2. Principal Secretary, Department Of Sanstkri Education, Government Of Rajasthan, Secretariat, Jaipur.

3. Director, Directorate Of Sanskrit Education, Government Of Rajasthan, 2Nd Floor, Block-6, Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur, Rajasthan.

4. Secretary, Rajasthan Public Service Commission, Ajmer.

----Respondents

For Petitioner(s) : Mr. S.K. Gupta, Senior Counsel assisted by Narendra Kumar Saini.

Mr. Raghu Nandan Sharma.

For Respondent(s) : Mr. M.S. Singhvi, Advocate General assisted by Mr. Darsh Pareek.

Mr. Ganesh Meena, AAG.

Mr. Sandeep Pathak.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

18/10/2022

1. Perusal of the record reveals that an application (1/2021)

seeking vacation of ex-parte interim order dated 01.07.2020 was

filed on behalf of the respondent-State and on 16.08.2021 this

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court directed to list these cases for final disposal and again on

09.02.2022 this court observed that the said application shall be

considered at the time of admission/hearing of the writ petition.

Thereafter, these matters were listed before the court but due to

heavy cause list, these matters could not be taken up/heard for

final disposal as the same could not be reached, therefore, request

was made by the learned Advocate General to this Court for

deciding the application for seeking vacation of interim order

dated 01.07.2020.

2. On 30.09.2022 these matters could not be reached and were

directed to be listed on 12.10.2022, on which date also the same

could not be reached and were posted for 14.10.2022, however

due to typographical error, in the order sheet of 12.10.2022 the

date was recorded as 14.11.2022 instead of 14.10.2022 for which

an application (2/2022) has been moved on behalf of the

respondent-State for correction in the order-sheet dated

12.10.2022 as well as for early listing, on which the matter has

been listed today. Thus, as per the facts recorded above, by the

present order all the aforesaid applications are being decided.

3. The application for early listing as well as for seeking

correction in the date are allowed. The date 14.11.2022 recorded

in the order-sheet of 12.10.2022 be read as 14.10.2022.

4. Heard on the application for vacation of the interim order

dated 01.07.2020 passed by this court.

5. The prayer made in the writ petition as well as in the stay

application reads as under:-

CWP No.6636/2020:-

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"It is, therefore, humbly prayed that Your Lordships may graciously be pleased to accept and allow this writ petition and ; I) by an appropriate writ, order or direction in the nature thereof; the respondents may kindly be directed to issue the eligibility list for promotion to the post of Principal (Varishtha Upadhyay Sanskrit School) against the vacancy of year 2017-18 & 2018-19 as per the provisions of Rajasthan Sanskrit Education State and Subordinate Service (School Branch) Rules, 2015 without implementing the Amendment Rules, 2018 with restropective effect.

ii) by an appropriate writ, order or direction in the nature thereof; the respondents may kindly be directed to give promotion to the petitioners on the post of Principal (Varishtha Upadhyay Sanskrit School) against vacancy of 2017-18 & 2018-19 with all consequential benefits.

Iii) Any other relief which this Hon'ble Court deems just and proper in the facts and circumstances of the case may also be given in favour of the petitioners."

         Stay     Application                     in          CWP
         No.6636/2020:-

"It is, therefore, most humbly prayed that this Hon'ble court may kindly be pleased to allow this stay petition and the Respondent may kindly be directed to issue eligibility list for promotion to the post of Principal Varishtha Upadhyay Sanskrit School as per the qualification prescribed in existing Rules 2015 and held the DPC for promotion to the said post against vacancy of year 2017-18 accordingly or in alternative, the respondents may kindly be restrained from convening the DPC for promotion to the post of Principal Varishtha Upadhyay Sanskrit School against vacancy of year 2017-18 & 2018-19 till the final disposal of the writ petition.

Any other relief as this Hon'ble Court deems fit and proper may kindly be passed in favour of the petitioners."

6. Learned Advocate General appearing on behalf of the

respondent-State submits that due to pendency of these writ

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petitions the respondents are unable to undertake the exercise of

making promotions for last five years and since the promotion

relates to the post of Principal, in absence of promotions the

interest of the students towards their studies is being adversely

affected on account of pending litigation before this Court.

7. Leaned Advocate General further submits that a perusal of

the prayer made in the writ petition as well as stay application

clearly shows that grant & continuance of the interim order in the

facts and circumstances amounts to granting final relief prayed for

in the writ petitions. Leaned Advocate General further submits

that no order detrimental to the interest of the petitioners with

regard to their promotion has been passed by the respondents as

yet, which could be a basis for the petitioners to approach the

Court of law, in absence whereof the present writ petitions are

premature and deserve to be dismissed at the very threshold.

Leaned Advocate General further submits that the questions raised

by the petitioners in these writ petitions are disputed questions of

fact which can only be first examined by the Rajasthan Civil

Services Appellate Tribunal in appeal and therefore the petitioners

before approaching this Court should have approached the learned

Tribunal and only after decision being rendered by the Tribunal

upon going through the original record of the matters, the

petitioners could challenge the decision of the Tribunal, if

aggrieved, before this Court and lastly submits that their

application be allowed and the interim order dated 01.07.2020 be

vacated.

8. Learned Advocate General relied upon the judgment passed

by the Hon'ble Supreme Court in the matter of State of Uttar

Pradesh & Ors. Vs. Sandeep Kumar Balmiki reported in

(6 of 8) [CW-6636/2020]

(2009) 17 Supreme Court Cases 555 where in paras No.5 to 7,

it has been held as under:-

"5. In our view, the interim order granted by the High Court staying the order of termination could not be passed at this stage in view of the fact that if such relief is granted at this stage, the writ petition shall stand automatically allowed without permitting the parties to place their respective cases at the time of final hearing of the writ petition. In this case also, the appellants have not yet filed counter affidavit to the writ petition of the respondents.

6. That being the position and in view of the fact that the final relief could not be granted at the interim stage, we set aside the impugned order and vacate the interim order passed by the High Court.

7. We are informed that now the affidavits have already been exchanged and the matter is ready for hearing. That being the position, we request the learned Single Judge of the High Court to decide the writ petition at an early date, preferably within three months from the date of supply of a copy of this order to it."

9. Learned Advocate General further relied upon the judgment

passed by the Hon'ble Supreme Court in the matter of Rana

Randhir Singh & Ors Vs. State of U.P. & Ors. reported in 1989

Supp (1) Supreme Court Cases 615, where in para No. 11 it

has been held as under:-

"11. Before we part with this case we must point out that the continuous failure the State Government to implement the Rules has brought about a critical situation in the service. Litigations have been pending for more than ten years in different courts. On account of pendency of such disputes, the efficiency of the service has been affected. Inter se dispute between public servants not only affects the efficiency of the service but brings about dissension, misunderstanding, a sense of rivalry and ultimately brings indiscipline. That seems to have happened in the present case. We commend to the State of Uttar Pradesh that recurrence of

(7 of 8) [CW-6636/2020]

such a situation should not be permitted. We also find that many of the officers in the cadre rush to the court or the tribunal too often and interim orders are made by the Court to hold up the hands of the State Government in giving effect to the Rules. Interim orders in such matters should not ordinarily be made as the position can always be rectified when judgment is rendered."

10. Learned Senior Counsel appearing on behalf of the

petitioners has opposed the application for vacation of interim

order and submitted that the cause of action has very well accrued

to the petitioners on account of the amendment made in the Rules

of which reference has been made in the interim order dated

01.07.2020 and since the respondents were going to make the

promotions in terms of the said amendment which is also one of

the question to be examined herein, the present application

seeking vacation of interim order deserves rejection. Learned

Senior Counsel further submits that the determination of the year

wise vacancy has not been made by the respondents as per

provisions of the Rules and in correct prospective. Learned Senior

Counsel further disputes the manner in which the respondents are

going to fill up the vacancy by promotion. Learned Senior Counsel

further submits that if the interim order is vacated, they are

apprehending that the respondents will not make the promotions

as per the Rules.

11. Heard counsel for the parties and perused the record.

12. The application for vacation of the interim order dated

01.07.2020 filed on behalf of the respondent-State in my view

deserves to be allowed for the reasons; firstly, in absence of there

being any order of promotion passed by the respondents

detrimental to the interest of the petitioners, nothing can be

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adjudicated upon by this court and what could be examined by

this Court could be as to whether the promotion order if any

passed by the respondents is in accordance with law or not;

secondly, in view of the judgment passed by the Hon'ble Supreme

Court in the matter of State of Uttar Pradesh (supra) granting

and continuing the interim order at this stage certainly amounts to

granting final relief prayed for in the matter; thirdly, due to

continuance of the interim order the interest of numbers of

students towards their studies is being seriously affected as the

post of Principal is still lying vacant despite five years rolled by

now and lastly the apprehension of the petitioners with regard to

promotions has no force as it is always expected to act upon the

promotions as per the Rules.

13. In that view of the matter, the application seeking vacation

of interim order dated 01.07.2020 is allowed and the interim order

passed by this court dated 01.07.2020 is hereby vacated. In the

facts and circumstances, it is observed that if any promotion is

made by the respondents on the post of Principal (Varishtha

Upadhyaya School Education), the same shall remain subject to

final outcome of the present writ petitions.

(INDERJEET SINGH),J

MG/523-524

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