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2003 DIGILAW 730 (RAJ)

Shaitan Singh v. State of Rajasthan

2003-05-12

K.S.RATHORE, S.K.KESHOTE

body2003
Honble KESHOTE, J.–Heard learned counsel for the parties, perused the entire record of the writ petition, memo of appeal and the order of learned Single Judge challenged in this appeal. (2). We cannot dismiss the appeal only on the ground that the interim relief is not granted by us and the selection, which was made for the appointment on the post of IIIrd Grade teacher in the year 1994 have already been culminated in the appointments and all the vacancies advertised are filled. In case on this ground the relief is declined to the litigant who approached to this Court, it will be negation of justice. (3). The appellant is not responsible for this delay in decision in the matter by the Court. It is a system and for which the appellant cannot be blamed and that too to the extent to close this matter only on the ground that it could not be decided at an early date. It is a discretion of the court in the given case to grant or may not grant interim relief. (4). In pursuance of the advertisement, Annex. 1 to the writ petition, published on 6.5.94 applications were invited for more than 100 posts of IIIrd Grade Teachers. The appellant belongs to the OBC Category and submitted his application in response to the advertisement. He also enclosed to it the certificate issue to him by the Tehsildar concerned certifying him a candidate of OBC. The appellant was called for interview on 7.7.94 but he was not given the appointment. The grievance of the appellant is that the candidates, who were having lesser marks than the appellant were given the appointment. On enquiry made by him it transpired that the certificate issued to him by Tehsildar concerned certifying him OBC is not in accordance with the rules. What poor appellant could have done more than to approach to the concerned Tehsildar to issue correct certificate, which was undisputedly issued on 8.7.94. (5). He made representation on 25.10.94 enclosing there to this corrected certificate and prayed for giving him appointment under the category of OBC. It was not given and thus the appellant filed the writ petition in this Court out of which this appeal arises. (6). Before the learned Single Judge the appellant cited for consideration the case of Smt. Heera Gupta. He made representation on 25.10.94 enclosing there to this corrected certificate and prayed for giving him appointment under the category of OBC. It was not given and thus the appellant filed the writ petition in this Court out of which this appeal arises. (6). Before the learned Single Judge the appellant cited for consideration the case of Smt. Heera Gupta. She has also filed the identical certificate for the appointment but she has been given the opportunity of filing the correct certificate. The difference in these two cases is that the lady produced the certificate on the date of interview but the appellant could not. (7). The learned Single Judge dismissed the writ petition on the ground that he is not entitled for consideration for the appointment on the post of IIIrd Grade Teacher particularly when in pursuance of the interview held on 7.7.94, all the appointments have been made and on vacancy exists. (8). It is not the case of the respondents that correct certificate produced by the appellant certifying that he is a OBC is a forged document. (9). Learned counsel for the respondents submitted that the application of the appellant was defective and thus he was not considered and he was not given the appointment. The case of Smt. Heera Gupta stated to be clearly distinguishable. (10). We failed to see any justification in this objection of the respondents. It is a matter where without there being any fault on the part of the appellant this poor person has to suffer and that too to the extent of denial of right of consideration for appointment, which is a fundamental right. (11). It is not the case of the respondents that the appellant belongs to creamy class of OBC. The certificates are issued by the Tehsildar in routine manner. It is difficult to believe what to say to accept that this class of candidates applied for appointment to the post of IIIrd Grade Teacher would have known of all these niceties of the matter. It is the duty of the authority issuing the certificate to see that a correct certificate is issued to the candidate. In this case in most cursory, casual and mechanical manner Clause 2 of the certificate is scored off by the Tehsildar. (12). It is the duty of the authority issuing the certificate to see that a correct certificate is issued to the candidate. In this case in most cursory, casual and mechanical manner Clause 2 of the certificate is scored off by the Tehsildar. (12). The appellant hails from the rural area and it is difficult to believe what to say to accept that he would have knowing the procedure and effect of scoring of the para No. 2 of the certificate. The learned Single Judge in our opinion is not correct to decline relief to the appellant on the ground that all selections have been made and no vacancy is available. The learned Single Judge has not found any fault or illegality in the corrected certificate issued by the Tehsildar to the appellant. Learned Single Judge denied the relief to the appellant on a nonest ground. (13). This way if the persons concerned with making selection and appointments are allowed to act it will increase corruption, nepotism and favoritism. It will be easy for these persons concerned to give the opportunity to other candidates who are kith and kin or close relation or favourety of somebody sitting in the office of the respondents. Smt. Heera Gupta was made known of this effect in her certificate and she got ample opportunity to procure and file the correct certificate. This opportunity was not given to the appellant before interview. Smt. Heera Gupta could not have brought corrected certificate in interview but for prior information of defect in the certificate. On the ground on which the appellant was denied of his right of consideration for appointment on the post of IIIrd Grade Teacher by the respondents is a clean example of favouritism and nepotism. (14). We are of the considered opinion that the majority of the candidates at the gross root level would not have known of this difference in creamy or non-creamy layer. They are not made known to this fine distinction. Only on this ground as argued by learned counsel for the respondents and the writ petition dismissed by learned Single Judge relief is denied to appellant, it will be traversity of the justice. Courts are not sitting here to do injustice to litigants or to deny their just and reasonable claim on the technical ground. (15). As a result of the aforesaid discussion this appeal succeeds and same is allowed. Courts are not sitting here to do injustice to litigants or to deny their just and reasonable claim on the technical ground. (15). As a result of the aforesaid discussion this appeal succeeds and same is allowed. The order of learned Single Judge dated 23.3.95 is quashed and set aside. The writ petition of the appellant is allowed and the respondent No. 2 is directed to consider the case of the appellant for the appointment on the post of IIIrd Grade Teacher with reference to the appointment made in pursuance of the advertisement dated 6.5.94. In case any candidate having less marks than the appellant had been given appointment, the respondent No.2 to give the appointment to the appellant from the very date on which that candidates joined the services. This appointment is to be given against the existing post lying vacant. However, the appellant shall not be entitled for salary and another monetary benefits for this period. However, he shall be entitled for counting of his services for the pension, gratuity, grade increment and other purposes. His pay be notionally fixed on the post on the day he joins same. This exercise is to be completed within two months from the date of the receipt of the copy of this order. No order as to costs.