Lala Ram vs State Of Rajasthan And Ors
2022 Latest Caselaw 11413 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1500/2017

Lala Ram S/o Shri Gena Ram Chaudhary, Resident Of Village And Post Dhola Via Gundoj Tehil Sumerpur District- Pali

----Petitioner Versus

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

2. Deputy Director Secondary Education, Pali

3. District Education Officer Secondary Education, Pali

----Respondents

For Petitioner(s) : Mr. V.R. Choudhary.

For Respondent(s) : Mr. Sarvan Kumar, AGC.

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

14/09/2022

The petitioner applied for the post of Physical Education

Teacher Grade-II pursuant to the Advertisement dated

27.08.1998. In the final merit list published by the respondents,

the name of the petitioner was shown at serial No.2. However, the

petitioner was not appointed on the count that the qualification

possessed by the petitioner from Nagpur University is not

equivalent to Bachelor degree in Physical Education. The petitioner

being aggrieved by the denial of appointment preferred writ

petition before this Court being S.B.C.W. No.1133/1999 (Lala Ram

v/s State of Rajasthan & Ors.).

This Court was pleased to allow the writ petition vide order

dated 22.09.2005 holding that the qualification of B.P.Ed. obtained

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by the petitioner from Nagpur University is a valid qualification for

appointment on the advertised post. The operative portion of the

judgment dated 22.09.2005 reads as under:

"The writ petition, therefore deserves to be accepted and the same is allowed. The respondents are directed to consider the candidature of the petitioner for the purpose of appointment to the post of Physical Training Teacher Gr.11 in pursuant to the selection proceedings taken place under the advertisement dated 27.8.98. In the event, petitioner is found suitable and if any person having marks less than the petitioner is given appointment, then the appointment shall also be accorded to him. The respondents are directed to complete the process of consideration as above within a period of three months from the date, the petitioner submits a certified copy of this order to the respondent Deputy Director (Secondary), Department of Education, Jodhpur."

The respondent in compliance of the order dated 22.09.2005

passed by co-ordinate Bench of this Court, issued an order of

appointment dated 26.11.2007 in favour of the petitioner. The

petitioner thereupon joined duties with the respondent-

department w.e.f. 29.11.2007. After joining duties, the petitioner

submitted representation to the respondent-department

requesting service benefits including seniority and pay fixation

with effect from the date when candidates lower in merit to him

were given appointment. It was categorically mentioned in the

representation that persons lower in merit from him were given

appointment w.e.f. 11.03.1999, therefore his services in the

department should be counted from the said date.

Learned counsel for the petitioner submitted that

appointment was accorded to him consequent to the selection

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process initiated pursuant to the Advertisement dated 27.08.1998,

therefore, his case cannot be distinguished from the case of the

persons who are employed vide order dated 11.03.1999. It was

argued that the delay in appointment is not attributable to the

petitioner and if benefit of seniority and pay fixation are not

allowed to the petitioner from the date, persons lower in merit to

him were appointed to the post of Physical Education Teacher

Grade-II, then the same shall be highly discriminatory.

Per contra, learned counsel for the respondents submitted

that the delay in providing appointment was not due to inaction on

part of the department. However, the same had taken place due to

the pending litigation.

Heard learned counsel for the parties.

The Division Bench of this Court while considering a similar

controversy in D.B. Civil Special Appeal No.1375/2014 (Har

Karan Ram Bugalia Vs. State & Ors.) held as under:-

"We do not find any merit with the stand taken by the respondents. It is not in dispute that the appointment was given to the petitioner as a consequence to the process of selection initiated under the notification dated 30.10.2006. The respondents considered his candidature and find him eligible to be recruited as Teacher Grade-III. An appointment too was given by them after getting the documents verified. True it is the delay occurred is not solely due to the respondents, but the relief as claimed by the petitioner, if not given then that shall be quite unjust as the persons who faced selection with him and employed in the year 2008 shall remain senior to him irrespective of the fact that some out of them were less-meritorious. Such persons shall also get wages more than the appellant, though employed through a same process. He will also loose his other rights such as leave computation for the period he has not worked with the respondents. The loss caused to him is required to be compensated at least by extending

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service benefits to him on notional basis and further by determining his seniority inter-se by taking into consideration his merit in the process of selection. Accordingly, this appeal is allowed. The judgment impugned dated 09.7.2014 is set aside. The appeal preferred by the appellant is allowed in part. The respondents are directed to treat the petitioner in service with effect from 12.1.2008 and shall also make fixation of his pay on notional basis without making actual payment of wages. The petitioner shall also be entitled to get his seniority determined as per his merit in the select list prepared as a consequence to the process of selection initiated under notification dated 30.10.2006. No order as to cost."

Admittedly, the petitioner's name was placed at serial No.2 in

the merit list prepared pursuant to the selection process

conducted under Advertisement dated 27.08.1998 for the post of

Physical Education Teacher Grade-II. However, the petitioner was

not allowed to join whereas persons lower in merit to him were

provided appointment under order dated 11.03.1999. The denial

of appointment was found to be unjust and illegal by co-ordinate

bench this Court in S.B C.W. No.1133/1999 [Lala Ram

(supra)] decided on 22.09.2005.

Accordingly, the respondents are directed to treat the

petitioner senior to the persons who were lower in merit from him

and were appointed vide order dated 11.03.1999, as a

consequence of the selection process initiated pursuant to

Advertisement dated 27.08.1998. Respondent-department is

further directed to make pay fixation on notional basis in favour of

petitioner from the date when persons lower in merit were

appointed, without actual payment of wages. The necessary

exercise shall be completed within a period of four months from

the date of this order.

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In the result, the writ petition is allowed.

No order as to costs.

(KULDEEP MATHUR),J 75-Prashant/-

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