Mahavir Berwa vs State Of Rajasthan ...
2023 Latest Caselaw 3702 Raj

[2023/RJJD/012451]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3986/2023

1. Mahavir Berwa S/o Kesari Lal Berwa, Aged About 49 Years, Bairwa Basti, Vinayaka, Dehit, District Bundi. (Posted As Teacher Grade Iii (Level-I) At Gps Bhilo Ki Maradi, Peeo Laxmipura, Block Talera, District Bundi)

2. Ram Charan Meena S/o Ramgopal Meena, Aged About 47 Years, Village Binayaka, Post Dehit, District Bundi. (Posted As Teacher Grade Iii (Level-I) At Gps Bhawanipura, Peeo Laxmipura, Block Talera, District Bundi)

3. Mahavir Prasad Babar S/o Jagnnath Babar, Aged About 48 Years, Village Roteda, Tehsil Keshavray Patan, District Bundi (Posted As Teacher Grade Iii (Level-I) At Gps Nai Basti Chhoreda, Peeo Jaloda, Block K Patan, District Bundi.

----Petitioners Versus

1. State Of Rajasthan, Through Its Secretary, Rural Development And Panchayati Raj Department, Government Secretariat, Jaipur, Rajasthan.

2. The Secretary, Department Of Education, Government Of Rajasthan, Secretariat, Jaipur (Raj.).

3. The Director, Elementary Education, Rajasthan, Bikaner.

4. The Chief Executive Officer, Zila Parishad Bundi.

5. The District Education Officer, Elementary, Bundi.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. Umashankar Dhakad for
                                Mr. Hanuman Singh
For Respondent(s)         :



         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                     Order

27/04/2023

The controversy raised in the instant writ application is no

more res-integra in view of the adjudication made in the case of

Suman Bai & Anr. Vs. State of Rajasthan & Ors.: 2009 (1)

WLC(Raj.) 381, wherein the Coordinate Bench of this Court

observed thus:

[2023/RJJD/012451] (2 of 4) [CW-3986/2023]

"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 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 6lower 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 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 been titled 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 with regard to correct and wrong assignment of seniority having arisen

[2023/RJJD/012451] (3 of 4) [CW-3986/2023]

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."

Applying the principle, as extracted hereinabove, to the facts

of the case at hand the factual position emerges is that the

petitioners participated in the recruitment process in response to

advertisement issued by Zila Parishad in the year 2012, inviting

the applications from the eligible candidates for appointment on

the post of Teacher Grade III. It is also not in dispute that the

petitioners earlier instituted writ applications and as a

consequence of directions issued by this Court, the result was

revised in the month of November, 2016; resulting into

appointment of the petitioners on the post of Teacher Grade

III(Level I/Level-II).

Undeniably, the petitioners have already been accorded

appointment. However, State-respondents have declined seniority

and other benefits to the petitioners from the date the petitioners

became entitled on account of revision of the result while

candidates lower in merit to the petitioners have been accorded

those benefits. Thus, the petitioners have claimed benefit of pay

fixation and seniority on notional basis from the date juniors to

the petitioners, have been accorded in the same recruitment

process of the year 2012.

Accordingly, the State-respondents are directed to extend

the benefit of pay fixation and seniority on notional basis to the

[2023/RJJD/012451] (4 of 4) [CW-3986/2023]

petitioners from the date junior(s) to the petitioner(s) has/have

been accorded with reference to the same recruitment process of

the year of 2012.

The order has been passed based on the submissions made

in the petition, the respondents would be free to examine the

veracity of the submissions made in the petition and only in case,

the averments made therein are found to be correct, the

petitioners would be entitled to the relief.

(VINIT KUMAR MATHUR),J 78-DArora/-

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