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2002 DIGILAW 1514 (RAJ)

Bhagwana Ram v. State of Rajasthan

2002-09-02

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Articles 226 of the Constitution of India has been filed by the petitioner against the respondents on 8.2.2000 with a prayer that by an appropriate writ, order or direction, the respondents may be directed to appoint the petitioner on the post of Physical Education Teacher as per merit list prepared by the respondent No. 2 (The Dist. Education Officer (Secondary), Jalore) in pursuance to the advertisement issued in the year 1998 and furthermore the respondents may be directed to assign seniority to the petitioner where he stood in the original seniority list i.e. above the persons who were junior to the petitioner. 2. The facts of the case as put forward by the petitioner are as under : (i) That the petitioner after passing Secondary and Higher Secondary Examination from the Board of Secondary Education, Rajasthan, Ajmer obtained Bachelor's degree from the University of Ajmer. (ii) That in the year 1996, the petitioner entered in the Freedom Fighter Krishna Rao Sathon Sharirik Shikshan Mahavidhyalaya, Khairgaon, Dist. Nagpur (hereinafter referred to as College) recognised by the Government for Physical Education Course degree. The petitioner was enrolled with the said University with No. NU/9/25377 and completed Academic Year 1996-97. Thereafter he passed the final examination before 15.5.1997 with first division. Roll number of the petitioner was 33959. (iii) That in the year 1998, respondent No. 2 advertised some vacancies for appointment on the post of Physical Education Course under various schools. The petitioner submitted his application form before the respondent No. 2 after completing all necessary formalities. (iv) That in the month of January, 1999, a provisional seniority list for eligible candidates for appointment on the post of Physical Education Teacher was prepared by the respondents and the name of the petitioner was found at serial No. 11 in the merit list. (v) That further case of the petitioner is that he was not given appointment as the respondents confused themselves from the list of colleges related to with the University of Nagpur sent by it on 15.7.1998 on the ground that name of college is mentioned as Sainik Krishnarao Sathon Sharirik Shikshan Mahavidhyalaya, Khergaon (Nagpur). (v) That further case of the petitioner is that he was not given appointment as the respondents confused themselves from the list of colleges related to with the University of Nagpur sent by it on 15.7.1998 on the ground that name of college is mentioned as Sainik Krishnarao Sathon Sharirik Shikshan Mahavidhyalaya, Khergaon (Nagpur). Therefore, the respondent No. 2 sent a letter dated 25.2.1999 (Annexure 2) to the Assistant Registrar (College), Nagpur University Nagpur for clarification of the name of the college as to whether any difference is there between the "Freedom Fighter" and "Sainik". (vi) That it is further submitted by the petitioner that in the reply to the letter dated 25.2.1999 (Annexure 2), University of Nagpur sent a reply dated 8.3.1999 (Annexure 3) to the respondent No. 2 and intimated that there is no difference between the Sainik Krishnarao Sathon Sharirik Shikshan Mahavidhyalaya, Khergaon and Freedom Fighter Krishnarao Sothan Sharirik Shikshan Mahavidhyalaya, Khergaon. It was also mentioned in the reply that in the list sent by the University on 15.7.1998, the name of the said college is at serial No. 27. (vii) The petitioner further submitted that after receiving the above reply (Annexure 3) and clarification, the respondent No. 2 was under obligation to appoint the petitioner as Physical Education Teacher, but the respondent No. 2 was again confused by the letter dated 8.3.1999 (Annexure 3) whether the Nagpur University had changed its name as Nagpur Vidhyapeeth and through letter dated 11.3.1999 (Annexure 4) again made a query from the Assistant Registrar, Nagpur University and the query was answered by the Nagpur University vide letter dated 15.3.19999 stating that in Marathi University is known as Vidhyapeeth and there is no difference between University and Vidhyapeeth. Thereafter the petitioner submitted all relevant documents which are necessary for giving appointment to the petitioner, but he was not given appointment though he stood at serial No. 11 in the merit list. Hence, this writ petition with the abovementioned prayer. 3. Thereafter the petitioner submitted all relevant documents which are necessary for giving appointment to the petitioner, but he was not given appointment though he stood at serial No. 11 in the merit list. Hence, this writ petition with the abovementioned prayer. 3. Reply to the writ petition was filed by the respondents admitting that the petitioner stood at serial No. 11 in the merit list and it was further admitted that the queries were made from time to time and by the replies of the Nagpur University to the queries made by the respondents, the confusion pertaining to the degree of the petitioner was removed, but since there is ban on the appointment, therefore, the petitioner was not given appointment. Hence, this writ petition be dismissed. 4. I have heard both. 5. In my opinion, this writ petition is liable to be allowed for the following reasons : That the petitioner stood at serial No. 11 in the merit list and when the confusion pertaining to the degree of the petitioner was removed, therefore, denial of appointment to the petitioner under such circumstances is violative of fundamental right and legal right as enshrined under Articles 14 and 16 of the Constitution of India and the petitioner is entitled to the relief sought for. Thus, the respondents cannot deny appointment to the petitioner on the ground that now there is ban on the appointment or select list has expired. For that the law laid down by this court in the case of Anita Chopra v. State of Rajasthan, reported in 2001(2) RLR 580 and the law laid down by Hon'ble Supreme Court in the case of Purushottam v. Chairman, M.S.E.B. and another, reported in 2000(1) SCT 1121 (SC) : 1999 SCC (L&S) 1050, may be referred to. The Hon'ble Supreme Court in the case of Purushottam (supra) has held that duly selected candidate could not be denied appointment on the pretext that panel's term had expired and post had been filled up by someone else. The Hon'ble Supreme Court in the case of Purushottam (supra) has held that duly selected candidate could not be denied appointment on the pretext that panel's term had expired and post had been filled up by someone else. Thus, applying the ratio of the judgment in the case of Pursuhottam (supra), in the present case, the respondents cannot deny appointment to the petitioner on the ground that now there is ban because at the time when the petitioner was selected, there was no ban and for no fault of the petitioner, he was not given appointment and if subsequently, ban has been imposed on the appointment, the petitioner should not be made to suffer for that.Since when the petitioner passed the test and he was declared successful and was placed in the merit list, then the respondents were under obligation to give appointment and if some time has been taken by the respondents for removing their confusion, for that the petitioner should not be made to suffer.For the reasons mentioned above, this writ petition is allowed and the respondents are directed to offer appointment to the petitioner on the post of Physical Education Teacher within a period of two months subject to other eligibility criteria to be fulfilled by the petitioner. On his appointment, the petitioner shall not be entitled for the emoluments of the post for the past, however, he will be entitled to claim seniority over the persons who were lower in merit but have been offered appointment prior to him.Cost made easy.Petition alloweed. *******