Twarita Gehlot vs State Of Rajasthan ...
2023 Latest Caselaw 7054 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14233/2021

Twarita Gehlot W/o Rajesh Rathore, Aged About 27 Years, R/o Ward No.3, Village Arnod, Ratlam Road, Pratapgarh, District Pratapgarh, 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, Pratapgarh, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Ankur Sharma For Respondent(s) : Mr. Deepak Chandak for Mr. Pankaj Sharma, AAG

JUSTICE DINESH MEHTA

Order

12/09/2023 I.A. No.1/2023:

1. The application seeking early listing of the case has been

rendered infructuous by efflux of time.

2. Dismissed accordingly.

3. However, looking to the fact that the matter is squarely

covered by the judgment rendered in the case of Om Prakash Vs.

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

the same is taken up for consideration today itself.

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S.B. Civil Writ Petition No. 14233/2021:

1. Learned counsel for the respondents submitted that the

petitioner has been selected in the recruitment of the year 2018

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

rendered in case of Om Prakash Vs. State of Rajasthan & Ors. :

SB Civil Writ Petition No.21214/2017. 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. (S.B. Civil

Writ petition No.3247/2015, decided on 01.04.2015.

2. 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 No.3247/2015: Hemlata Shrimali & Ors. Versus State of Rajasthan & Ors., decided on 1st April, 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

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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

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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 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."

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

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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.

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 petitioner to the effect that

his 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

88-Ramesh/-

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