Rajasthan High Court - Jodhpur

Smt. Pooja Chhipa vs State Of Rajasthan ... on 9 May, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/014250]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 535/2023

1. Smt. Pooja Chhipa D/o Shri Kailash Chand Chhipa, W/o Shri Sunil Bagerwal, Aged About 33 Years, F-73/2, Gandhi Nagar, Chittorgarh District Chittorgarh (Raj.) Presently Reside At Flat No. 306, Vinayak Residency, Dr. Gupta Street, Nimbahera, District Chittorgarh (Raj.).

2. Smt. Anjana D/o Shri Ramkishan W/o Shri Ashwani, Aged About 32 Years, R/o Vpo Badopal, Tehsil Pilibanga, District Hanumangarh (Raj.) Presently Reside At Aashirwad Vila, 707-B, Maharana Pratap Marg, Gandhi Colony, Jaisalmer District Jaisalmer (Raj.)

3. Rajesh Purohit S/o Shri Ramsahay Purohit, Aged About 37 Years, R/o Dayalpura, Post Kareda Bujurg, Tehsil Niwai, District Tonk (Raj.)

4. Smt. Saroj D/o Shri Ram Sahay Meena W/o Shri Murari Lal Meena, Aged About 34 Years, R/o Vpo Tamdiya, Tehsil Chaksu, District Jaipur (Raj.)

5. Bindiya Sharma D/o Shri Ajay Kumar Sharma, Aged About 29 Years, R/o Vpo Thathwari, Tehsil Khetri, District Jhunjhunu (Raj.)

6. Kiran Vaishnav D/o Shri Satyanarayan Vaishnav, Aged About 31 Years, R/o Vpo Narvar, Tehsil And District Ajmer (Raj.)

7. Smt. Radha Agarwal D/o Shri Om Prakash Agarwal W/o Shri Kamlesh Kumar Gupta, Aged About 37 Years, R/o Vpo Mandawari, Tehsil Lalsot, District Dausa (Raj.)

8. Preeti Agarwal D/o Shri Balkishan Gupta W/o Shri Trilok Gupta, Aged About 39 Years, R/o 252, Scheme No.2, Lajpat Nagar, District Alwar (Raj.)

9. Manish Yadav S/o Shri Amar Chand Yadav, Aged About 33 Years, R/o Village Eklahra, Tehsil Pahari, District Bharatpur (Raj.)

10. Mahendra Kumar S/o Shri Ramsharan Gurjar, Aged About 32 Years, R/o Village Mugalpur, Post Babariya, Tehsil Bansur, District Alwar (Raj.)

11. Jogendra Singh Nehra S/o Shri Laxminarayan Nehra, Aged About 33 Years, R/o Village Jatwas, Post Hasampur, Tehsil Neem Ka Thana, District Sikar (Raj.)

12. Manoj Kumar Chopra S/o Shri Shriram Chopra, Aged About 43 Years, R/o Village Menpur, Basmenpur, Tehsil Mundawar, District Alwar (Raj.)

13. Kunaal Singh S/o Shri Kamal Singh, Aged About 38 Years, R/o Tijara By-Pass, Near Fortis Life Line Hoapital, Alwar, District Alwar (Raj.)

14. Duli Chand Meena S/o Shri Mohan Lal Meena, Aged About 31 Years, R/o Vpo Thana Rajaji, Tehsil Rajgarh, District Alwar (Raj.)

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15. Subh Karan Meena S/o Shri Om Prakash Meena, Aged About 32 Years, R/o Vpo Pratappura, Tehsil Baswa, District Dausa (Raj.)

16. Sanwar Mal Jat S/o Shri Balu Ram Jat, Aged About 30 Years, R/o Village Bas-Sonwa, Post Bansera, Tehsil Todaraisingh, District Tonk (Raj.)

17. Babita Gupta D/o Shri Gopal Prasad Gupta, Aged About 35 Years, R/o Near Agrasen Collage, Agrasen Vihar, Hindaun City, District Karauli (Raj.)

18. Rekha Kumari Meena D/o Shri Ramroop Meena W/o Shri Jitendra Meena, Aged About 32 Years, R/o Vpo Katkad Tehsil Hindaun City, District Karauli (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through Its Principal Education Secretary, Government Of Rajasthan, Government Secretariat, Jaipur (Raj.).

2. The Secretary Cum Commissioner, Panchayati Raj Department, Government Of Rajasthan, Government Secretariat, Jaipur (Rajasthan)

3. The Director, Elementary Education, Bikaner (Raj.)

4. The Chief Executive Officer, Zila Parishad Chittorgarh (Raj.).

5. The District Elementary Education Officer, Chittorgarh (Raj.)

6. The Chief Executive Officer, Zila Parishad Jalore (Raj.).

7. The District Elementary Education Officer, Jalore (Raj.)

8. The Chief Executive Officer, Zila Parishad Ajmer (Raj.).

9. The District Elementary Education Officer, Ajmer (Raj.)

10. The Chief Executive Officer, Zila Parishad Alwar (Raj.).

11. The District Elementary Education Officer, Alwar (Raj.)

12. The Chief Executive Officer, Zila Parishad Karauli (Raj.).

13. The District Elementary Education Officer, Karauli (Raj.)

14. The Chief Executive Officer, Zila Parishad Dausa (Raj.).

15. The District Elementary Education Officer, Dausa (Raj.)

16. The Chief Executive Officer, Zila Parishad Sirohi (Raj.).

17. The District Elementary Education Officer, Sirohi (Raj.)

18. The Chief Executive Officer, Zila Parishad Tonk (Raj.).

19. The District Elementary Education Officer, Tonk (Raj.)

20. The Chief Executive Officer, Zila Parishad Sawai Madhopur (Raj.).

21. The District Elementary Education Officer, Sawai Madhopur (Raj.)

22. The Chief Executive Officer, Zila Parishad Jaisalmer (Raj.).

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23. The District Elementary Education Officer, Jaisalmer (Raj.)

----Respondents

For Petitioner(s) : Mr. Himanshu Kachhawaha For Respondent(s) :

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

09/05/2023

Heard learned counsel for the petitioners.

It is submitted by the learned counsel for the petitioners that

for the same recruitment, similarly situated petitioners had

approached Jaipur Bench of this Court in Om Prakash & Ors. v.

State of Rajasthan & Ors. : S.B. Civil Writ Petition No.21214/2017,

which writ petition has been decided on 21.11.2017 granting relief

to the petitioners in light of judgment in the case of Hemlata

Shrimali & Ors. v. State of Rajasthan & Ors. : S.B. Civil Writ

Petition No.3247/2015, decided on 1.4.2015 and relying upon the

adjudication in the case of Suman Bai & Anr. v. State of Rajasthan

& Ors. : 2009 (1) WLC (Raj.) 381 and, therefore, the present writ

petition may also be decided in light of judgment in the case of

Om Prakash (supra).

In the case of Om Prakash (supra), the Bench at Jaipur after

noticing orders in the case of Hemlata Shrimali (supra) and

Suman Bai (supra) observed as under:-

"Learned counsel for the petitioners, at the very outset, submits that the controversy raised in the instant writ application stands resolved in view of the adjudication made by a Coordinate Bench of this Court in a batch of writ applications lead case being S.B. Civil Writ Petition Number 3247/2015: Hemlata Shrimali & Ors. Versus State of Rajasthan & Ors., decided on 1st Apri., 2015, relying upon the adjudication in the case of Suman Bai & Anr. Versus State of Rajasthan & Ors.: 2009 (1) WLC (Raj.) 381,

[2023/RJJD/014250] (4 of 5) [CW-535/2023]

observing thus:

"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 6 lower 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 be entitled 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 subsequent to appointment of the petitioners would obviously give rise to a fresh cause of action. The writ petition filed by the petitioners, therefore, cannot be thrown either barred by resjudicata or otherwise improperly constituted.

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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."

Learned counsel for the petitioners further submits that instant writ application be also disposed off in terms of the order dated 24th May, 2017, as extracted herein above.

Ordered accordingly."

In view of the submissions made, the present writ petition

filed by the petitioners is also disposed of in light of order passed

in the case of Om Prakash (supra).

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.