Bajrang Singh Shekhawat vs State And Ors (2023:Rj-Jd:25020)
2023 Latest Caselaw 5674 Raj

[2023:RJ-JD:25020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1472/2014

Bajrang Singh Shekhawat S/o Shri Nan Singh Shekhawat, aged about 24 years, R/o V.P.O. Sandewa, Tehsil Bidasar, District Churu, Rajasthan.

----Petitioner Versus

1. State of Rajasthan through Secretary, Department of Mines and Geology Govt. of Rajasthan, Jaipur.

2. The Director, Department of Mines and Geology, Khanij Bhawan, Udaipur, Rajasthan.

----Respondent

For Petitioner(s) : Mr. Manoj Bhandari, Sr. Advocate assisted by Mr. Aniket Tater For Respondent(s) : Mr. Digvijay Singh Jasol

JUSTICE DINESH MEHTA

Order

07/08/2023

1. The petitioner herein has challenged the order dated

27.01.2014, passed by the respondent No.2 - Director,

Department of Mines and Geology, Udaipur, whereby his

appointment has been cancelled.

2. Facts germane for the present purposes are that the

petitioner was appointed as Foreman in the Mining Department,

vide order dated 16.12.2013. Hardly had the petitioner begun to

serve the respondents, an order dated 27.01.2014 came as a bolt

from the blue and his selection was cancelled.

3. It is relevant to mention that above order of cancellation of

petitioner's appointment came to be passed on a

complaint/representation made by one Ajeet Singh Rathore, who

[2023:RJ-JD:25020] (2 of 6) [CW-1472/2014]

pointed out that he had secured marks equal to the marks secured

by the present petitioner, but his date of birth is 13.06.1987,

whereas the petitioner's date of birth is 01.11.1989. It was thus

claimed that he should have been given preference in the

appointment.

4. By way of interim order dated 24.02.2014, impugned order

dated 27.01.2014 was stayed and consequently the petitioner

resumed his duties, whereafter he has been continuing with the

respondent-Department.

5. Mr. Manoj Bhandari, learned Senior Advocate submitted that

the order impugned dated 27.01.2014 is ex-facie illegal and

contrary to the principles of natural justice, inasmuch as, no

notice was issued to the petitioner.

6. It was also submitted that the petitioner was offered

appointment without there being any suppression of facts or mis-

representation on his part and, therefore, his

selection/appointment could not have been cancelled by the

respondent-Department.

7. Mr. Bhandari alternatively flagged that many posts of

Foreman remained unfilled or became vacant immediately and the

same are still lying vacant in the respondent Department and

submitted that no fruitful purpose will be served by throwing the

petitioner out of the job, particularly when he has been serving

the respondents satisfactorily for the last 9 years.

8. Mr. Digvijay Singh Jasol, learned counsel for the

respondents, on the other hand, submitted that as the facts were

clear, observance of principles of natural justice would have made

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no difference and, therefore, the order be not interfered on such

technical ground.

9. While highlighting that once, the appointment to the last

candidate (the petitioner) was granted, the recruitment came to

an end and the waiting list had lapsed, he argued that the

petitioner cannot be accommodated against the purported

vacancies, which have arisen on account of non-joining/

resignation of some of the selected candidates etc.

10. He nevertheless, on instructions, submitted that 43 posts of

Foreman are lying vacant, immediately after the recruitment of

2013 was undertaken.

11. On Court's query, Mr. Jasol, learned counsel for the

respondent - Mining Department informed that after 2013, no

other recruitment on the post of Foreman has taken place in the

Mining Department.

12. Heard learned counsel appearing for the rival parties,

perused the material available on record and gave my

consideration over the matter.

13. So far as the petitioner's contention of non-adherence to the

principles of natural justice is concerned, true it is that ideally,

before cancelling petitioner's appointment, an opportunity of

hearing ought to have been given. But in the case in hands, when

the factum of petitioner's date of birth (01.11.1989), vis a vis that

of the other candidate namely Ajeet Singh Rathore, was within the

respondent's knowledge and more so when such fact so also the

fact that both had secured equal marks was not in dispute,

issuance of notice would have been an empty formality or an

exercise in futility.

[2023:RJ-JD:25020] (4 of 6) [CW-1472/2014]

14. The petitioner has neither disputed these vital facts nor has

he demonstrated any prejudice caused to him due to non-

observance of the principles of natural justice. Hence, this Court

does not propose to set aside the order impugned and remand the

matter on this count, as it would lead to another chain of

litigation. A gainful reference of the judgment of Hon'ble the

Supreme Court in the case of Viveka Nand Sethi Vs. Chairman J &

K Bank Ltd., reported in (2005) 5 SCC 337 can be made in this

regard.

"The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Dr. Gurjeewan Garewal (Mrs.) vs. Dr. Dumitra Dash (Mrs.) and Others [(2004) 5 SCC 263]. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case."

15. Adverting to the alternative submission made by Mr. Manoj

Bhandari, learned Senior counsel that many of the employees,

who were selected on the post of Foreman have left the job and

many posts are still lying vacant, this Court is of the view that the

matter deserves to be dealt on equitable considerations. Sending

the petitioner back home at this stage would be unjust. Because,

had Ajit Singh Rathore been preferred above the petitioner and

offered appointment in the very beginning, then the petitioner

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would have remained the first person in waiting list/reserve list

and subsequently, on seats falling vacant, he could have claimed

appointment.

16. In the facts peculiar to present case, the argument as

advanced by learned counsel for the respondent - State that after

a period of six months the petitioner cannot be accommodated,

cannot be accepted. Because, when the petitioner's appointment

was cancelled by way of the order impugned, waiting/reserve list

was still alive and but for the interim order granted in petitioner's

favour on 24.02.2014, the petitioner being the first candidate in

waiting/reserve list of the General category would have claimed

appointment.

17. The State's stand may be technically correct, but having

regard to the fact that appointment was offered to the petitioner

due to inadvertence or error without any misrepresentation on his

part; he has continued for about 9 years under the strength of the

interim order of this Court; his qualification and eligibility is not in

question; more over he has not taken away anybody's rights; 43

posts are still lying vacant and also because no recruitment on the

post of Fireman has taken place since 2013, this Court is

persuaded to save the appointment given to the petitioner on the

principles of justice and good conscience.

18. For the reasons stated above, the writ petition is allowed.

The impugned order dated 27.01.2014 to the extent of cancelling

petitioner's appointment is hereby quashed.

19. Petitioner shall be treated to have been appointed in

accordance with law. His seniority will be reckoned from

[2023:RJ-JD:25020] (6 of 6) [CW-1472/2014]

23.12.2013 or the date when Ajeet Singh Rathore had joined the

services so that the petitioner remains junior to him.

20. The petitioner shall be given regular pay scale on completion

of 2 years' satisfactory service from the date of appointment and

he shall be entitled to regular increments etc. in accordance with

law. Formal order in terms of the order instant be passed and

arrears be paid within four months from today.

21. Stay petition also stands disposed of accordingly.

(DINESH MEHTA),J 272-Ramesh/-

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