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2003 DIGILAW 765 (RAJ)

State of Rajasthan v. Sujan Singh Khichi

2003-05-20

O.P.BISHNOI, RAJESH BALIA

body2003
JUDGMENT 1. - This appeal is barred by 82 days as per the office report. An application for condonation of delay has been filed on behalf of the appellants under section 5 of the Limitation Act, except stating that copy of. the judgment under appeal dated 5.9.2002 was sent to the appellants in the end of 5 October; and that there is prima facie case in their favour, no specific ground whatsoever has been stated in the application which could be considered as "sufficient cause" which might have prevented the appellants from filling the appeal within limitation. 2. Even the contention that the appellants have a prima facie case in to their favour does not appear to be correct. The only contention which the appellants want to raise in this appeal is that the direction was issued by the learned Single Judge, on finding that there was violation of Articles 14 & 16 of the Constitution by offering appointment to the persons lower in order of merit than the respondent-petitioner as per the select list as modified by the directions of this Court. But according to the appellants such direction could not have been given because the original select list had expired before filing the writ petition. 3. However, we do not find from the pleadings that any contention on that count has been raised before the learned Single Judge nor learned counsel is in a position to state as on what date the select list expired. 4. Be that as it may, the said contention is not tenable in the facts and circumstances of the case. It is not in dispute that soon after the declaration of the result by not including the name of the petitioner like others in the select list on the ground that they held a degree from M.D.S. University, Rohtak which is not requisite qualification to be considered for appointment on the post of Teacher Gr. Ill, the petitioner filed a civil suit in the Court of Civil Judge (Jr. Division) Churu being Civil Suit No. 42/92. 5. After hearing both the parties on application for temporary injunction, temporary injunction was granted in favour of the petitioner-respondent, prima facie holding that the Degree granted by M.D.S. University, Rohtak is a recognised B.Ed. Degree in Rajasthan following the judgment of the learned Single Judge of this Court. Division) Churu being Civil Suit No. 42/92. 5. After hearing both the parties on application for temporary injunction, temporary injunction was granted in favour of the petitioner-respondent, prima facie holding that the Degree granted by M.D.S. University, Rohtak is a recognised B.Ed. Degree in Rajasthan following the judgment of the learned Single Judge of this Court. On that finding, it was further found that petitioner's name finds place in order of merit and is liable to be considered for appointment. The percentage which as per this conclusion, the petitioner obtained was stated to be 48.85%. The respondents were directed to consider the case of the petitioner by considering the marks obtained by him as 48.85% and if he is found suitable for appointment, the appointment may be given. We may notice that despite this direction, the petitioner had to remind the appellants time and again. Vide Annexure P-9, the Director. Rural Development and Panchayat Raj Department issued an order dated 31.5.1994 to give appointment to the petitioner in pursuance of the interim injunction passed by the Court of Munsiff and Judicial Magistrate, Churu dated 17.4.1992 subject to the result of the Special Leave Petition pending before the Supreme Court against the Bench decision of this Court, which has affirmed the judgment of the learned Single Judge. 6. However, instead of complying with this direction, petitioner was informed vide order dated 22.7.1995 that because select list expired at the end of an academic year, he cannot be given appointment in pursuance of the said select list which has expired now. 7. Apparently, this denial of appointment instead of complying with the directions having been issued by the Director in pursuance of temporary injunction granted by a Civil Court on the basis of the decision of this Court was not justified. 8. The petitioner-respondent has raised a ground that denial of his consideration for appointment to the post in question is in violation of provisions of Articles 14 & 16 of the Constitution. In pursuance of the judgment of this Court. it was found to be a claim well-founded by the Civil Court. We also notice that there is no dispute about the fact that the respondent-petitioner has approached the Civil Court for his remedy against denial of consideration before the expiry of select list. In pursuance of the judgment of this Court. it was found to be a claim well-founded by the Civil Court. We also notice that there is no dispute about the fact that the respondent-petitioner has approached the Civil Court for his remedy against denial of consideration before the expiry of select list. The fact that select list has expired during the pendency of the proceedings which the petitioner has initiated to avail his right particularly in respect of violation of fundamental rights cannot result in defeating his rights. If it were so, the fundamental rights which have been guaranteed by the Constitution in the matter of giving appointment will result in going into oblivion with the expiry of select list notwithstanding the parties whose fundamental right of equality has been infringed because of expiry of select list before the dispute could be decided by Court. If that be so, that would be shrinking the ambit of fundamental rights guaranteed to the citizens of this country, right to enforcement of which itself is a fundamental right. It is not the case of the appellants either the it the petitioner has sought recourse to remedial measures after expiry of select list and was guilty of any laches. In these circumstances, when the petitioner approached for safeguarding his rights to the Court before the Expiry of select list which was founded prima facie established by a civil Court on the basis of a judgment of this Court and temporary injunction was issued way back in 1992, the delay on the part of the appellants in giving effect to that direction cannot result in defying the rights which exist in favour the respondent petitioner. 9. Moreover, it is significant that, perhaps delay in compliance of it unction was because appeal against judgment of learned Single Judge was pending before the Division Bench. When the Division Bench affirmed the judgment rendered by the trial Court an S.L.P. was filed before Supreme Court, an order was issued to comply with the existing and operating injunction by tile Director. Thereafter, it was not for the State authority to deny to give effect to the direction issued by the Director in compliance of Injunction order that will clearly amount to disobedience of Court's order. Thereafter, it was not for the State authority to deny to give effect to the direction issued by the Director in compliance of Injunction order that will clearly amount to disobedience of Court's order. The contention of the appellants that the petitioner has approached this Court after expiry of select list is on erroneous presumption that respondent-petitioner has approached this Court to issue such direction to consider the case of the petitioner for the first time. The relief claimed by the petitioner was to seek a mandamus to implement the order of the Director in obedience of injunction of Court to consider the case of the petitioner finding his exclusion on the premise not countenanced by this Court. It cannot be said that because the petitioner approached the Courts for redressal after expiry of select list, he was guilty of laches. 10. In view thereof, we are of the opinion that there is no merit in this appeal at all. Accordingly, the application for condonation of delay as well as the appeal stand rejected.State Appeal Dismissed as time barred. *******