Rajasthan High Court - Jodhpur

Kapil Dev Ahir vs The State Of Rajasthan ... on 6 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:37088]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 14650/2024

1.       Kapil Dev Ahir S/o Shri Gheesa Lal Ahir, Aged About 36
         Years, Resident Of Village And Post Ganeshpura, Dist-
         Pratapgarh. (Raj.).
2.       Mayank Trivedi S/o Shri Laxmi Narayan Trivedi, Aged
         About 32 Years, Resident Of Village And Post Ward No.
         06, Kanba, Nawal Shyam, District- Dungarpur. (Raj.).
3.       Jeevan Ahir S/o Shri Ram Prasad Ahir, Aged About 27
         Years, Resident Of Village And Post Ganeshpura, Dist. -
         Pratapgarh. (Raj.).
4.       Ranjana D/o Shri Hira Lal, W/o Sh. Vikas Ganwal, Aged
         About 26 Years, Resident Of Village And Post Water Works
         Road, Ward No. 26, Dist. - Pratapgarh. (Raj.).
5.       Purtika Sharma D/o Shri Devanand Sharma, Aged About
         23 Years, Resident Of Village And Post Salampura, Op.
         Sutharo Ke Mandir, Ward No. 11, Dist. - Pratapgarh.
         (Raj.).
6.       Rama Rajput D/o Shri Vikram Singh Rajput, W/o Sh. Hari
         Singh Chouhan, Aged About 40 Years, Resident Of Village
         And Post Pichora Chhota, Dist.- Banswara. (Raj.).
7.       Ranu Baroliya D/o Shri Bheru Baroliya, Aged About 25
         Years, Resident Of Village And Post Nakoda Nagar,, Dist.-
         Pratapgarh. (Raj.).
8.       Pooja Rathod D/o Shri Nandkishore Rathod, W/o Sh.
         Vinod Kumar Rathod, Aged About 35 Years, Resident Of
         Village And Post Devgarh Daarwaja, Ward No. 05, Dist.-
         Pratapgarh. (Raj.).
9.       Manisha Meghwal D/o Shri Raja Ram Meghwal, Aged
         About 23 Years, Resident Of Village And Post Meghwal
         Mohalla, Ward No. 07, Dabra, Dist.- Pratapgarh. (Raj.).
                                                                     ----Petitioners
                                       Versus
1.       The    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.


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3.       The Director, Elementary Education, Bikaner, District
         Bikaner, Rajasthan.
4.       The Chief Executive Officer, Zila Parishad Pratapgarh,
         District Pratapgarh, Rajasthan.
5.       The Chief Executive Officer, Zila Parishad Chittorgarh,
         District Chittorgarh, Rajasthan.
6.       District    Education         Officer       (Elementary       Education),
         Pratapgarh. Rajasthan.
7.       District    Education         Officer       (Elementary       Education),
         Chittorgarh. Rajasthan.
                                                                   ----Respondents


For Petitioner(s)           :     Mr. OP Sangwa
For Respondent(s)           :     -



                 HON'BLE MR. JUSTICE FARJAND ALI

Order

06/09/2024

1. It is submitted by learned counsel for the petitioners that

for the same recruitment, similarly situated persons 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 was decided on 21.11.2017 granting

relief to them in the light of judgment dated 01.04.2015 passed

by a Coordinate Bench of this Court at Jaipur Bench in the case of

Hemlata Shrimali & Ors. Vs. State of Rajasthan & Ors. : S.B.

Civil Writ Petition No.3247/2015 along with other connected

matters and relying upon the adjudication made in the judgment

dated 03.07.2008 passed by a Coordinate Bench of this Court at

Jaipur in the case of Suman Bai & Anr. Vs. State of Rajasthan

& Ors. (SBCWP No.4808/2001) : 2009 (1) WLC (Raj.) 381

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and, therefore, the present writ petition may also be decided in

light of judgment passed 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 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

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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 21of 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. Taking into account the totality of the facts and

circumstances of the case, the instant writ petition is disposed of

in terms of the order dated 21.11.2017 passed in the case of Om

Prakash (supra).

4. 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

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case, the averments made therein are found to be correct, the

petitioners would be entitled to the relief.

5. Stay petition also stands disposed of.

(FARJAND ALI),J 78-divya/-