Rajasthan High Court - Jodhpur

Mohani Devi vs State Of Rajasthan ... on 11 May, 2023

Bench: Dinesh Mehta

[2023/RJJD/014666]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6259/2021

Mohani Devi W/o Late Jagram, Aged About 58 Years, Ward No.6, Ratanpura, 4 Rtp (Ratanpura Rural), Hanumangarh (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Revenue (Group-7) Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.

2.       The   District  Collector,                Hanumangarh,           District
         Hanumangarh (Raj.)
                                                                 ----Respondents


For Petitioner(s)         :     Mr. SK Shreemali
For Respondent(s)         :     Mr. Mrigraj Singh Rathore



                      JUSTICE DINESH MEHTA

                                     Order

11/05/2023

I.A.Nos.01/2022, 02/2022, 03/2022, 04/2022 & 01/2023:

1. All these applications seeking early listing of the matter have

been rendered infructuous.

2. Dismissed accordingly.

3. However, considering that the matter is covered by judgment

of this Court, the case is taken up for consideration today itself.

S.B. Civil Writ Petition No. 6259/2021:

1. The present writ petition has been filed by the wife of

deceased employee, namely, Jagram, who has passed away on

16.11.2020.

2. The petitioner has claimed the benefits as has been given in

SB Civil Writ Petition No.21214/2017 : Om Prakash Vs. State of

Rajasthan.

[2023/RJJD/014666] (2 of 5) [CW-6259/2021]

3. Mr. Mrigraj Singh Rathore, learned counsel for the

respondent-State submitted that during his lifetime, the deceased

government servant -Jagram has not taken up any issue as has

been sought to be taken up by his widow.

4. Be that as it may.

5. Considering that similarly situated employees have been

given benefit of the judgment in the case of Om Prakash (supra),

this Court does not deem it appropriate to non-suit the present

petitioner simply because her husband has not taken up the issue

at appropriate level.

6. Learned counsel for the petitioner submitted and accepted

that the petitioner has been selected in the recruitment of the LDC

and thus, the issue is covered by the judgment of this Court

rendered in SB Civil Writ Petition No.21214/2017: Om

Prakash Vs. State of Rajasthan. He, however, maintained that

the same may not be construed to be an admission of the

proposition that the petitioner is entitled for the benefits which she

has claimed in light of the basic judgment rendered in case of

Hemlata Shrimali & Ors. Vs. State of Rajasthan & Ors. (SBCWP

No.3247/2015), decided on 01.04.2015.

7. Relevant portion of the order in case of Om Prakash(supra)

reads thus :

"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 April, 2015, relying upon the adjudication in the case of

[2023/RJJD/014666] (3 of 5) [CW-6259/2021]

Suman Bai & Anr. Versus State of Rajasthan & Ors.: 2009 (1) WLC (Raj.) 381, 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. In fact, the judgment of

[2023/RJJD/014666] (4 of 5) [CW-6259/2021]

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.

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."

8. In view of the aforesaid, following the judgment in case of

Om Prakash (supra), the writ petition is disposed of in same

terms.

9. For the purpose aforesaid, the petitioner shall file

representation before the competent authority giving out the

requisite details along with certified copy of the order instant

within a period of four weeks from today. On receipt of the

[2023/RJJD/014666] (5 of 5) [CW-6259/2021]

representation, the concerned respondent shall decide the same,

in accordance with law within a period of eight weeks from the

date of receipt of the representation and accord notional benefits