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2003 DIGILAW 1488 (RAJ)

RPSC Ajmer v. Ku. Sadhana Bagharhatta

2003-11-04

F.C.BANSAL, S.K.KESHOTE

body2003
Honble KESHOTE, J.–This cluster of special appeals arises from the order dated 13th of January, 1999 of the learned Single Judge passed in S.B. Civil Writ Petition No. 3264/1997, Sadhana Bagarhatta vs. State of Rajasthan & Others alongwith five other writ petitions. Since a common question of law is involved in these special appeals, they are heard and being decided together by this common order. (2). In all six writ petitions were filed by the respondents herein. Against the order passed in the six writ petitions, the Rajasthan Public Service Commission has preferred Special Appeals mentioned in the title of this judgment at Serial No.1 to 6. Where as the Special Appeals mentioned at Serial No. 7 to 10 are preferred by the appellants therein, who were not parties in the writ petitions filed by the respondents hearing, and are adversely affected by the order of the learned Single Judge. We find from the appeals at Serial No. 7 to 10 that in three appeals leave to file appeals was granted by the Court. The appeal at Serial No. 11 has been filed by the respondent in Special Appeal at Serial No.1, who was the petitioner before the learned Single Judge, against the part of the order of the learned Single Judge. (3). It is not in dispute that the operation of the order of the learned Single Judge impugned in these appeals has been stayed and that stay order is in operation till date. (4). For the disposal of these special appeals, the facts, which more or less are similar, are taken up from D.B. Special Appeal (Writ) No. 185/1999. (5). The writ petitions, six in number, were decided by the learned Single Judge by common order as he was of the opinion that the question of law and facts involved therein are common and these are directed against the selection of Lecturers in Beauty Culture made by the Rajasthan Public Service Commission (for short, `the RPSC). (6). An advertisement was issued vide notification NO. 1/95 by the appointing authority for inviting applications from the eligible candidates for appointment by selection as Lecturers in various disciplines including the Beauty Culture, for a short term i.e. for a period of four months or till the regularly selected candidates are made available by the RPSC which ever was earlier. (6). An advertisement was issued vide notification NO. 1/95 by the appointing authority for inviting applications from the eligible candidates for appointment by selection as Lecturers in various disciplines including the Beauty Culture, for a short term i.e. for a period of four months or till the regularly selected candidates are made available by the RPSC which ever was earlier. The respondent in the special appeal applied in response to the advertisement aforesaid. She was appointed on temporary basis. It was her case that the was duly selected by the Selection Committee constituted and adjudged her suitability. A notification for regular recruitment of the Lectures in Beauty Culture was issued by the RPSC on 20.1.1997. The petitioner respondent applied for the same. She was interview but she4 was not figured in the select list published by the RPSC. She made the grievance before the learned Single Judge by filing writ petition that the selected candidates were not possessing the requisite professional or teachers experience of two year to their credit as prescribed for appointment on the post. It is stated that some of the selected candidates had experience of little less than more than a year. For the candidates to be appointed as Lectures in Beauty Culture two years experience was prescribed as essential qualification. But, in the Directorate of the Technical Education, the qualification of experience has been prescribed as preferably only. (7). It is submitted that the petitioner is highly qualified candidate fulfilling all the requisite qualifications and had the experience of more than two years at the relevant time but the persons having lesser qualification with less experience have been selected. In the writ petition, the petitioner respondent has also challenged the amendment made whereby the word preferably has been added in the Rajasthan Technical Education Rules, 1963 (for short, `the Rules, 1963). (8). The writ petition was contested by the RPSC and the State Government. The learned Single Judge disposed of all the writ petitions under the impugned order. The operative part thereof reads as under. ``For the reason that the selected candidates had not been made parties to the writ petition, it shall not be appropriate to quash the selections at this stage. However, in the present case, after seeing the result and for the reasons mentioned above, the selections cannot be said to be fair. The operative part thereof reads as under. ``For the reason that the selected candidates had not been made parties to the writ petition, it shall not be appropriate to quash the selections at this stage. However, in the present case, after seeing the result and for the reasons mentioned above, the selections cannot be said to be fair. it is necessary that fresh selections be made of the candidates who had appeared before the Interview Board on the dates as mentioned above. The authority shall ear/mark the marks under different items of academic qualifications, experience, extra-curricular activities etc. etc. and shall hold the interviews of all the candidates afresh and draw up fresh select list and declare the result selections already made shall continue and status quo shall be maintained till the fresh experience is completed by the RPSC within six months of the receipt of the certified copy of this order. All the writ petitions are disposed of with the above-said observations. No order as to costs. (9). The learned counsel for the appellant RPSC, inter alia, raised a contention that the order of the learned Single Judge deserves to be quashed and set aside only on the ground that it is against the principles of natural justice and fair play. It is submitted that the selected candidates were not impleaded as respondents in the writ petition, out of which this appeal arises. In his submission though the learned Single Judge has observed that the selected candidates have not been made party to the writ petition and it shall not be appropriate to quash the selection at this stage but virtually he has, in the result, quashed the selections. (10). On the other hand, the learned counsel for the petitioner respondent supported the order of the learned Single Judge. It is submitted that the selected candidates were not required to be made a party. The writ petitions had been filed before those selected candidates were given appointments on the post of Lecturer in Beauty Culture. Making reference to the order of the learned Single Judge dated 25th of September, 1997 the learned counsel for the petitioner respondent submitted that this Court has permitted the respondent State to make the appointments on the post of Lecturer in beauty Culture with clear stipulation that the same shall be subject to the decision and out come of the writ petition. In view of this order of the learned Single Judge, what it is contended by the learned counsel for the petitioner respondent that the selected candidates were not necessary or proper party to the writ petition. (11). We have given our thoughtful consideration of the rival contentions made by the learned counsel for the parties and perused the entire record of the writ petition and the special appeal. (12). The order of the learned Single Judge has been challenged by the candidates who have been selected for the post of Lecturer in Beauty Culture by the RPSC and they have been given the appointment. The reference may have to the special appeal at Serial No. 7 to 10. In three appeals, out of four, we find that the court has permitted the appellants therein the challenge the order of the learned Single Judge. (13). It is no more res integra that any aggrieved person of the order of the judgment of the learned Single Judge in a petition to which he or she was not a party, has two fold remedies in the matter, where the order or the judgment goes adverse to he or she; first, either to file review petition before the learned single Judge or an appeal after leave of the court. In this case the appointees after selection by the RPSC on the post of Lecturer in Beauty Culture, have adopted second course. They filed appeal with the application for grant of leave of the court. (14). The learned counsel for the petitioner respondent does not dispute that the implementation of the order of the learned Single Judge may adversely affect the candidates who have been given appointment on the post of Lecturer in Beauty Culture on the basis of recommendations made by the RPSC for the same. That also clearly borne out from the fact that this court has granted leave to the some of the selected and appointed candidates to file appeal against the impugned order. This grant of leave to appeal no doubt whatsoever remains in mind that the court has accepted that they are aggrieved party of the order of the learned Single Judge. In those appeals at Serial No.7 to 10 the grievance has been made by the appellants there in the the learned Single Judge has passed the order against the basic principle of natural justice and fair play. (15). In those appeals at Serial No.7 to 10 the grievance has been made by the appellants there in the the learned Single Judge has passed the order against the basic principle of natural justice and fair play. (15). Shri Mahendra Singh, the learned counsel, who is appearing in one of the appeals for the petitioner respondent; the non selected candidate, contended that the some of the selected candidates are before the court by the appeals and the matter may be decided on merits. Though, at first flash, this argument looks very attractive but if this course is adopted either of the parties to this litigation may be denied of a right of appeal against the order of the learned Single Judge, where this court remands these matters for fresh decision to him. The right of appeal is very valuable right and normally even with the consent of the parties the court can not take away that right of the litigant. It is an undisputed fact that the petitioners respondents in the appeals at Serial No.1 to 6 have not impleaded the appointees on these posts as parties to the writ petition. They have not been given an opportunity of hearing. It is also not in dispute that they have been appointed in pursuance of the selection made by the RPSC on the post. The learned Single Judge has observed that there cannot be two views where it is implemented, may adversely affect the appointment of the silicates. Though they are appointed on the post after this litigation but undisputedly working thereon for last more than four years. The appointees on these posts have also made the grievance that the order of the learned Single Judge may adversely affect their rights and they have not been given any opportunity of hearing before making the same. (16). Shri Mahendra Singh, the learned counsel appearing for one of the appointments on the post, contended that the appointments of these selectees were subject to the decision of the writ petition and thus by the impugned order they are not affected. That apart, it is submitted that in view of the order of the learned Single Judge they were not required to be impleaded as parties nor they were required to be given opportunity of hearing. That apart, it is submitted that in view of the order of the learned Single Judge they were not required to be impleaded as parties nor they were required to be given opportunity of hearing. Lastly it is contended that it is not the case where their appointments have been set aside and thus they are not affected by the impugned order of the learned Single Judge. (17). We have given our thoughtful consideration to the contentions raised by Shri Mahendra Singh and do not find any merits and substance in either of them. (18). In the writ petition on 19th of June, 1997 this court has been pleased to pass the following order, ``Issue notice to the respondents. Notice of the stay application be also issued and be given dasti to the learned counsel for the petitioner. Put up on 5.07.1997. In the meanwhile, the non-petitioners shall maintain Status-quo in respect of the appointment of the candidates for the post of Lecturer in Beauty Culture. (19). The respondent State of Rajasthan has been given freedom to make appointments on the posts of Lecturer in Beauty Culture but it is made subject to the decision of the writ petition. This does not mean that the affected persons have no right of audience in the matter nor does it mean that they cannot be heard in the matter, even where they desire the personal hearing. any order if adversely affect any civil or legal right of a citizen, he/she has to be given an opportunity of hearing in the matter. The order passed adversely affecting the civil and legal right of a citizen without notice and opportunity of hearing to him is null and void, being against the principles of natural justice and fair play. By making this conditional stay the court cannot crystallize this inherent right of audience of the affected person where the Court passes any order adversely affecting his civil or legal right. It is also no more res integra that the court will not pass any order in violation of principles of natural justice and fair play. The Court strikes down those orders may be even administrative one where the affected person has not been given an opportunity of hearing by the authority before making the same. It is also no more res integra that the court will not pass any order in violation of principles of natural justice and fair play. The Court strikes down those orders may be even administrative one where the affected person has not been given an opportunity of hearing by the authority before making the same. We are satisfied that this inherent right of the affected person, of audience in a matter where the authority or court has passed any adverse order against him/her, cannot be denied either by the court or the administrative authority by passing such to conditional stay order. Another contention raised that the learned Single Judge has not set aide the appointments of the selectees, it is suffice to say indirectly it will result, in case the order of the learned Single Judge is implemented. (20). The learned single Judge was cautious of the fact that their appointments cannot be quashed as they were not the parties to the writ petition but still he has passed the order which may result in quashing and setting aside of their appointments. What the learned Single Judge has not decided directly, it would resulted indirectly. The direction which has been given to the respondents State in the writ petitions if is carried out, the possibility cannot be ruled out that all the selectees or some of them may not remain on the select list and as a result thereof their appointments will also go. Thus, the appointees were necessary parties to the writ petitions. It was obligatory for the petitioners respondents to implead them parties to the writ petition on their being appointed on the post of lecturer in Beauty Culture. (21). It is true that when the writ petitions were filed the appointees were not given appointment and there was no occasion for the petitioners respondents to implead them parties to the writ petition. But after the modification of the earlier interim reliefs granted by the court they were given the appointments and the petitioners respondents came to know about their names and addresses and thus those were to be impleaded parties to the writ petitions. The impugned order of the learned Single Judge which has been passed without notice and opportunity of hearing to the appointees on the post of Lecturer in Beauty Culture, cannot be allowed to stand. (22). The impugned order of the learned Single Judge which has been passed without notice and opportunity of hearing to the appointees on the post of Lecturer in Beauty Culture, cannot be allowed to stand. (22). In the result, the special appeals at Serial No. 1 to 10 succeeds and the same are allowed. The order of the learned Single Judge dated 13th of January, 1999 in the Ms. Sadhna Bagarhatta vs. State of Rajasthan & Others (2), and five other writ petitions, is quashed and set aside. The petitioners respondents are directed to implead the appointees on the post of Lecturer in Beauty Culture parties to the writ petitions. It is upon the petitioner respondents to get the notices served upon the appointees on the post of Lecturer in Beauty Culture through the concerned Department of the government. In case such a prayer is made, the concerned Department shall get the notices served upon these appointees. (23). As the impugned order of the learned Single Judge has been quashed and set aside in toto, the Special Appeal at Serial No.11 has become infructuous and the same is dismissed. It is made clear that it is open to the parties to the writ petitions to raise all the grounds and submissions available to them before the learned Single Judge. (24). In view of this order, the stay applications filed with the special appeals are disposed of accordingly. (25). In the facts of this case, the parties are left to bear their own costs of this litigation.