Rajasthan High Court - Jodhpur
Kalpana Nagda vs State Of Rajasthan ... on 23 May, 2023
Bench: Dinesh Mehta
[2023/RJJD/016914]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18081/2021
Kalpana Nagda W/o Mahesh Chandra Nagda D/o Gyan Shanker,
Aged About 41 Years, Near Shiv Temple, Seesarama, Tehsil
Sisaram, District Udaipur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Education, Government Of Rajasthan, Jaipur,
Rajasthan.
2. The Secretary, Rural Development And Panchayati Raj
Department, Government Of Rajasthan, Jaipur.
3. Director, Elementary Education Bikaner.
4. The District Elementary Education Officer, Udaipur, District
Udaipur Rajasthan.
----Respondents
For Petitioner(s) : Mr. Ankur Sharma
For Respondent(s) : Mr. Pankaj Sharma, AAG assisted by
Mr. Deepak Chandak
JUSTICE DINESH MEHTA
Order
23/05/2023
1. It is submitted by learned counsel for the petitioner that for
the same recruitment, similarly situated candidates had
approached Jaipur Bench of this Court by way of filing S.B. Civil
Writ Petition No. 21214/2017 (Om Prakash & Ors. v. State of
Rajasthan & Ors.), and the same has been decided on
21.11.2017 granting relief to the petitioners therein in light of
judgment in the case of Hemlata Shrimali & Ors. v. State of
[2023/RJJD/016914] (2 of 5) [CW-18081/2021]
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).
2. 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
[2023/RJJD/016914] (3 of 5) [CW-18081/2021]
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
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
[2023/RJJD/016914] (4 of 5) [CW-18081/2021]
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."
3. In view of the aforesaid, following the judgment in case of
Om Prakash (supra), the writ petition is disposed of in same
terms.
4. 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
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
to the petitioner from the date persons similarly situated to her
and lower in merit were given appointment.
[2023/RJJD/016914] (5 of 5) [CW-18081/2021]
5. Upon consideration of the representation so filed, if
respondents find the case of the petitioner to be covered by the
judgment(s) aforesaid, before giving actual benefits, an
undertaking shall be procured from the concerned petitioner to the
effect that her rights/entitlements shall be subservient to the fate
of the judgment(s) aforesaid and in case the same is reversed or
modified in any manner, she shall also be liable for restitution of
any benefits/emoluments so received.
6. The stay application also stands disposed of accordingly.
(DINESH MEHTA),J
17-Mak/-
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