Rajasthan High Court - Jodhpur

Monil Dosi vs State Of Rajasthan ... on 15 May, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/015197]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6522/2023

1. Monil Dosi S/o Bharat Dosi, Aged About 28 Years, R/o 395, Pragati Nagar Street 2, Dist. Dungarpur, Current Posting G.u.p.s. Talaiya, Block Dovda, Dist. Dungarpur.

2. Dalpat Ram Kalasua S/o Kaleeya Kalasua, Aged About 37 Years, R/o Mukam Vasuva Post Mahudi, Tehsil And Dist. Dungarpur, Current Posting G.u.p.s Jambudi, Block Simalwara, Dist. Dungarpur.

3. Kajal Katara S/o Dalpat Ram Katara, Aged About 28 Years, R/o Vill Gorada, Teh. Jothri, Dist Dungarpur, Current Posting G.u.p.s Kovadia Fala 2, Block Simalwara, Dist. Dungarpur.

4. Tejpal Roat S/o Dhanpal Roat, Aged About 32 Years, R/o M/p Padliya Pipalgunj, Block Sagwara Dist. Dungarpur, Current Posting G.u.p.s. Ghatda, Block Chikhali, Dist. Dungarpur.

5. Jayant Yadav S/o Amrit Lal Yadav, Aged About 32 Years, R/o Near Milk Chilling Plant Gokulpura Road Dungarpur, Current Posting G.u.p.s Ambara, Block Semari, Dist. Udaipur.

6. Mahesh Chandra Sarpota S/o Raman Lal Sarpota, Aged About 29 Years, R/o M. Malaniya, Post Jhonsawa The Galiyakot, Dist. Dungarpur, Current Posting G.u.p.s. Rajweda, Block Galiyakot, Dist. Dungarpur.

7. Lokesh Damor S/o Ambalal Damor, Aged About 30 Years, R/o V-Palasau, P-Gundlara, T.chikhli, Dist Dungarpur, Current Posting G.u.p.s Damor Fala (Udadiya), Block Chikhali, Dist. Dungarpur.

8. Arvind Kumar Gavariya S/o Ganesh Gavariya, Aged About 37 Years, R/o V/p Mahuvara, Baba Ki Bar - Teh. Galiyakot, Dist. Dungarpur, Current Posting G.s.s.s. Bhandari, Block Simalwara, Dist. Dungarpur.

9. Bheru Lal Meena S/o Kamal Kumar Meena, Aged About 32 Years, R/o V. Pamchguda, P. Gadwash, T. Dhariyawad, Dist. Pratapgarh, Current Posting G.u.p.s Sagadiya Oda, Block Sabla, Dist. Dungarpur.

10. Vandana Patidar D/o Shanti Lal Patidar, Aged About 30 Years, R/o Mukam Manpur, Post. Kheda Kachvasa Dist.

[2023/RJJD/015197] (2 of 5) [CW-6522/2023]

Dungarpur, Current Posting G.u.p.s Kherwara Sidari Block And Dist. Dungarpur.

----Petitioners Versus

1. State Of Rajasthan, Through The Secretary, Department Of Rural And Panchayati Raj, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Secretary, Department Of Education, Government Of Rajasthan, Jaipur, Rajasthan.

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

4. The Chief Executive Officer, Zila Parishad Udaipur, District Udaipur, Rajasthan.

5. The Chief Executive Officer, Zila Parishad Dungarpur, District Udaipur, Rajasthan.

6. The District Education Officer, Elementary Education, District Udaipur, Rajasthan.

7. The District Education Officer, Elementary Education, District Dungarpur, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Gajendra Singh Shekhawat

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

15/05/2023

It is submitted by learned counsel for the petitioners that for

the same recruitment, similarly situated petitioners had

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

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

[2023/RJJD/015197] (3 of 5) [CW-6522/2023]

Shrimali & Ors. Vs. 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, 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 lower in merit cannot certainly be placed at a higher

[2023/RJJD/015197] (4 of 5) [CW-6522/2023]

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 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."

Learned counsel for the petitioner 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."

[2023/RJJD/015197] (5 of 5) [CW-6522/2023]

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.