Rajasthan High Court - Jodhpur

Azaz Hussain vs State Of Rajasthan (2023:Rj-Jd:39814) on 21 November, 2023

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  S.B. Civil Writ Petition No. 16138/2023

1.       Azaz Hussain S/o Fayaz Mohammad, Aged About 25
         Years, R/o Nai Aabadi, Jahzpur Road, Shahpura Bhilwara
         (Raj.)
2.       Manish Jajra S/o Chotaram Jajra, Aged About 27 Years,
         R/o Vpo Dangawas, Tehsil Merta City, District Nagaur
         (Raj.)
3.       Sukh Lal S/o Tola Ram, Aged About 30 Years, R/o Vpo
         Bukansar Bara, Tehsil Sardar Shahar, District Churu (Raj.)
4.       Vipin Kumar S/o Narayan Singh, Aged About 30 Years,
         R/o Village Jisukh Ka Bas, Post Hamiri, Jhunjhunu (Raj.).
5.       Jhanvi Jakhar D/o Hukum Singh Jakhar, Aged About 28
         Years, R/o Jakhro Ki Dhani, Harsh, Sikar (Raj.)
                                                                        ----Petitioners
                                         Versus
1.       State       Of    Rajasthan,          Through          Principal     Secretary,
         Education        Department            (Secondary)           Government       Of
         Rajasthan Secretariat, Jaipur.
2.       The Director, Secondary Education Rajasthan Bikaner
         (Raj.).
                                                                      ----Respondents


For Petitioner(s)              :     Mr. Sushil Bishnoi
For Respondent(s)              :     Mr. Hemant Choudhary, GC



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

21/11/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"a) It may kindly be declared that the degree of graduation with English as Additional of the petitioners is equivalent to the degree of Graduation in English as Optional and

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fulfilling the minimum requirement of qualification prescribed in the advertisement dated 15.01.2023 (Annex.1) for appointment as Assistant Teacher Level-2 (English).

b) It may kindly be declared that the petitioners are eligible and entitled for appointment as Assistant Teacher Level-2 (English) at the strength of their Graduation with English Subject as "Additional".

c) It may kindly be declared that the action of the respondents to reject the candidature of petitioners for appointment as Assistant Teacher Level-2 (English) is illegal.

d) Respondents may kindly be directed to give appointment to petitioners as Assistant Teacher Level-2 (English) pursuant to the advertisement dated 15.01.2023 (Annex.1) with all consequential benefits."

2. Learned counsel for the parties jointly submit that the

controversy in question is directly covered by the order dated

03.11.2023 passed by a coordinate Bench of this Hon'ble Court in

Ajeet Singh Akhawat Vs. State of Rajasthan & Ors. : S.B.

Civil Writ Petition No.10899/2023 and other connected writ

petitions, which reads as follows:

"1. These writ petitions have been filed by the petitioners seeking a direction to the respondents to consider the candidature of the petitioners on the post of Primary School Teacher Level-II pursuant to Contractual Recruitment- 2023.

2. Submissions have been made that the respondents issued an advertisement dated 15.01.2023 (Annex.3) under the Rajasthan Contractual Hiring to Civil Post Rules, 2022 ('the Rules') and for the post of Teacher Level-II, the qualification inter-alia required graduation with Maths/English as optional subject.

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3. Submissions have been made that in the regular recruitment for the Primary School Teachers- 2022, similarly placed candidates approached this Court by filing SBCWP No.821/2022: Surya Prakash Achara Vs. State of Rajasthan & Ors., wherein, the Court had granted detailed directions permitting the candidates like petitioners to apply, pursuant to which, the respondents have, in the said recruitment, issued an amended advertisement permitting candidates like petitioners to apply subject to the outcome of the litigation pending before Hon'ble Supreme Court on the subject matter and, therefore, the action of the respondents in not permitting petitioners in the present Contractual Recruitment -2023 is not justified.

4. Learned counsel for the State made submissions that the recruitment pursuant to the advertisement dated 15.01.2023 is already over and, therefore, the relief, as claimed by the petitioner, cannot be granted at this stage.

5. Learned counsel for the petitioners attempted to make submissions that several posts are lying vacant and petitioners have already applied pursuant to the advertisement and, therefore, the respondents be directed to consider the candidature of the petitioners subject to the outcome of the dispute pending before Hon'ble Supreme Court.

6. I have considered the submissions made by counsel for the parties and have perused the material available on record.

7. It is no doubt true that once in the Regular Recruitment -2022, based on the interim directions issued by the Court and subject to the outcome of the dispute before Hon'ble Supreme Court, the respondents had permitted candidates like petitioners to apply in said recruitment, in the contractual recruitment also, such a permission could have been granted by the respondents.

8. However, the distinguishing feature in the present circumstances is that in the regular recruitment, the Court

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had passed the order when the last date of filing the application was still not arrived, inasmuch as, the same was 19.01.2023 and the interim order was passed earlier to the same and the amended advertisement was issued on

04.01.2023 permitting all the similarly placed candidates to apply subject to the outcome of the dispute before Hon'ble Supreme Court. However, in the present case, the recruitment is also over.

9. If the petitioners, who despite not having the requisite qualification in terms of the advertisement had applied, are permitted to be considered in view of the interim order passed in relation to the regular recruitment, the same would be wholly unjust, as the other similarly placed candidates would have had no opportunity even to apply being not having the requisite qualification, as indicated in the advertisement and, therefore, the prayer, as made by the petitioners for consideration of their candidature at this stage when the recruitment is also over only on account of the fact that some posts are stated to be still lying vacant, cannot be countenanced.

10. Consequently, the petition is dismissed. However, in case, the respondents issue a fresh advertisement, it is expected of the respondents to keep in view of the pending controversy before Hon'ble Supreme Court and provide similar opportunity to the candidates like petitioners subject to the outcome of the litigation before Hon'ble Supreme Court, if the same still remains pending."

3. At this stage, learned counsel for the petitioners submits that

though the aforesaid order covers the current factual matrix, but

at the same time, the factual matrix has not been properly

appreciated by the Hon'ble Court as there was a judgment earlier

rendered by the Single Bench on 27.03.2023 in Tofik Vs. State

of Rajasthan & Ors. : S.B. Civil Writ Petition

No.19708/2022.

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4. Learned counsel for the petitioners further submits that the

order passed had extended the petitioners' the benefit of

consideration on provisional basis subject to the final outcome of

the Special Leave Petition pending before the Hon'ble Supreme