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2004 DIGILAW 1613 (RAJ)

Madhu Sudan Joshi v. State of Rajasthan

2004-11-03

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - The petitioner has filed the present writ petition under Article 226 of the Constitution of India, on 16.1.2002 with a prayer that by an appropriate writ, order or direction the respondents may be directed to consider the candidature of the petitioner after taking into account the Inter University Tournament Certificate (Annexure-4) by awarding 15 bonus marks for the same and further they may be directed to re-construct the merit list taking into account the bonus marks of the petitioner. 2. It arises in the following circumstances : (i) That an advertisement dated 15.8.1998 (Annexure-1) was issued by the District Education Officer (Secondary), Rajsamand (respondent No. 3) for the post of Physical Teacher Grade III. The petitioner also applied for the post of Physical Teacher Grade III as he possessed the requisite qualification for appointment on the post of Physical teacher Grade III. (ii) Further case of the petitioner is that he took part in Inter University Basket Ball (West Zone) Tournament from Mohan Lal Sukhadia University and a certificate dated 28.6.1996 (Annexure-4) was issued in this respect by the University Sports Board, Mohan Lal Sukhadia University, Udaipur. (iii) Further case of the petitioner is that a merit list (Annexure-5) was prepared by the respondents, but 15 bonus marks for possessing national level sports certificate (Annexure-4) were not added in the marks of the petitioner and the petitioner was placed at serial No. 32 in the merit list having 86.32% marks and had the petitioner been given 15 bonus marks, he would have been placed higher in the merit. (iv) Further case of the petitioner is that he also participated in State Level Basketball competition and the certificates whereof are marked as Annexures 6 and 7 respectively. (iv) Further case of the petitioner is that when the petitioner was not given 15 bonus marks for participating in national level tournament as is evident from the certificate (Annexure-4), he submitted a representation (Annexure-8) on 11.10.1998, however, no reply has been given so far. The petitioner submitted another representation on 1.1.2002 (Annexure-10), reply whereto was also not submitted by the respondents. (v) Further case of the petitioner is that at the time of filing of the writ petition, merit list (Annexure-5) was in existence and the vacancies for the relevant period were not filled up. Hence, this writ petition with the abovementioned prayer. 3. The petitioner submitted another representation on 1.1.2002 (Annexure-10), reply whereto was also not submitted by the respondents. (v) Further case of the petitioner is that at the time of filing of the writ petition, merit list (Annexure-5) was in existence and the vacancies for the relevant period were not filled up. Hence, this writ petition with the abovementioned prayer. 3. In this writ petition, the main submission of the learned counsel for the petitioner is that since the petitioner participated in Inter University Tournament which is National Level Tournament as is evident from the certificate (Annexure-4), therefore, 15 bonus marks should have been awarded to him and the impugned action of the respondent in not awarding 15 bonus marks is illegal and arbitrary and therefore, the respondents be directed to award 15 bonus marks to the petitioner and merit list be prepared again and he be offered appointment. 4. Reply to the writ petition was filed by the respondents and their case is that the certificate (Annexure-4) produced by the petitioner was of State Level and thus, 10 bonus marks were granted to him for that certificate (Annexure-4) and 15 bonus marks could not be awarded for that certificate (Annexure-4) which was of State Level and hence no case is made out and the writ petitioner be dismissed. 5. Heard.6-7. Before proceeding further, it may be stated that the Annexure-4 is the certificate issued by the Secretary, University Sports Board, Mohan Lal Sukhadia University by which it was certified that the petitioner participated in Inter University Basket Ball (West Zone) Tournament held at Devi Ahilya University, Indore from 22.11.1995 to 27.11.1995.8. The pertinent question which arises for consideration is whether the petitioner is entitled to get 15 bonus marks on the basis of Certificate (Annexure-4) or not ?9. The circular dated 17.1.1998 (Annexure-12) issued by the Director, Secondary Education, Rajasthan, Bikaner allocates bonus marks in the following manner : 1. Dist. Level 5 2. State Level 10 3. National Level 15 10. The order dated 21.1.1998 (Annexure R-1) issued by the Director, Secondary Education, Rajasthan Bikaner allocates the bonus marks in the following manner : 1. Dist. Level 5 2. State Level 10 3. National Level 15. As per order dated 21..1.1998 (Annexure R-1), the level was to be determined in the following manner : 1. Dist. Level (1) University Inter-faculties Tournaments. (2) Inter-College Tournaments. 2. Dist. Level 5 2. State Level 10 3. National Level 15. As per order dated 21..1.1998 (Annexure R-1), the level was to be determined in the following manner : 1. Dist. Level (1) University Inter-faculties Tournaments. (2) Inter-College Tournaments. 2. State Level University Zonal Sports Tournament 3. National Level (1) University Inter Zone Tournaments (2) All India University Tournaments. 11. The case of the petitioner is that after perusing both the orders dated 17.7.1998 (Annexure-12) and 21.1.1998 (Annexure R-1), his case comes in the third category, i.e. National Level which gives 15 bonus marks while the case of the respondents is that the case of the petitioner is covered by the second category i.e. State Level.12. Before appreciating the above contentions of both the parties, the Division Bench Judgment of this Court dated 4.8.1997 passed in D.B. Civil Special Appeal No. 261 of 1997 has to be seen where at page 9 in para 17 of that judgment, this Court observed that the Education Department itself, while granting admission to the Physical Training Courses, has recognised the Inter-University Tournaments as equivalent to National Level Tournaments and Rule 11 of the Admission Rules, which gives recognition to the various tournaments was also quoted in that judgment and the same is also quoted here : 1. National Level Tournaments (a) Inter-Zone University/Inter University Tournaments. (b) National Level School Tournaments organised by SGFI. (c) Federal National Level Tournaments organised by National Federation. 2. State Level Tournaments (a) Inter-College Tournament. (b) State Level School Tournaments (c) State Level Federal Tournaments organised by the State Federation. 3. District Level Tournaments (a) University Inter-Faculities Tournament. (b) District School Level Tournaments (organized by the Distt. Education Officer). (c) Federal Dist. Level Tournaments (organized by the Dist. Sports Federation). 13. Thus, the above Division Bench judgment of this Court makes the position very much clear by holding that the Inter-University Tournaments covering the Universities of Rajasthan and the Universities of other States are equivalent to National Level Tournaments.14. Education Officer). (c) Federal Dist. Level Tournaments (organized by the Dist. Sports Federation). 13. Thus, the above Division Bench judgment of this Court makes the position very much clear by holding that the Inter-University Tournaments covering the Universities of Rajasthan and the Universities of other States are equivalent to National Level Tournaments.14. There is one more aspect which goes in favour of the petitioner and same is that the certificate (Annexure-4) shows that the petitioner participated in Inter University Basket Ball (West Zone) Tournament and thus, the present case is covered by Clause (a) of Column 1 which defines National Level Tournament and when this being the position, the case of the petitioner will be covered by Inter-Zone University Tournaments and thus this also leads to the conclusion that the certificate (Annexure-4) was a certificate of National Level.15. For further clarification, it is clarified here that a distinction has been made that the tournament which is held amongst the Universities of one State, it is State Level Tournament and when the tournament is held amongst the Universities of more than one State or Universities of particular zone, then it would be treated as National Level Tournament. Since in the present case, the tournament has taken place in Indore meaning thereby that players of Universities of Rajasthan have played with Universities of other States of West Zone, from that point of view also the certificate (Annexure-4) was of National Level Certificate.16. Thus bare perusal of the certificate (Annexure-4) clearly shows that the petitioner participated in Inter University Basket Ball (West Zone) Tournaments and when this being the position, the case of the petitioner comes in the third category i.e. National Level which gives 15 bonus markes and thus, the petitioner is entitled to 15 bonus marks.17. Thus, it is held that the certificate of proficiency (Annexure-4) (Inter University Basket Ball (West Zone) Tournament) for the year 1995-1996 issued by the Mohan Lal Sukhadia University in favour of the petitioner is equivalent to National Level tournament and therefore, on the basis of certificate (Annexure-4), as per the order dated 17.1.1993 (Annexure-12) and 21,1,1998 (Annexure R-1), the petitioner was entitled to 15 bonus marks in place of 10 bonus marks.18. The next question which arises for consideration in the facts and circumstances of the case is since now the merit list (Annexure-5) has expired, whether any benefit can be given to the petitioner or not.19. In the present case the petitioner was entitled to get 15 bonus marks, but he was given only 10 bonus marks and for which there was no fault on the part of the petitioner.20. It may be stated here that the right of the petitioner to be appointed against the post to which he has been found suitable and if he now comes in the merit after getting 15 bonus marks cannot be taken away on the pretext that the merit list in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the petitioner, but on the erroneous decision of the employer himself and for that reference may be made to the decision of Hon'ble Supreme Court in the case of Purushottam v. Chairman, MSEB and another, 2000(1) SCT 1121 (SC) : 1999 SCC (L&S) 1050. This Court, in the case of Anita Chopra v. State of Rajasthan, 2001(2) RLR 580 has also observed that merely because the select list has expired during the pendency of petition, it would not take away the protections of remedy to seek his fundamental rights which have been breached in operating the select list. The remedy for such breaches cannot become ineffective by passage of time particularly when the matter has already been become subjudice when there was no impediment in granting the relief.21. In the present case there was no fault on the part of the petitioner and thus, he should not be made to suffer on the ground of expiry of select list and if his name comes in the select list after granting 15 bonus marks, he is entitled to get appointment on the Physical Teacher Grade III as per his merit.22. For the reasons mentioned above the present writ petition is liable to be allowed and it is held that the petitioner is entitled to get 15 bonus marks on the basis of Certificate (Annexure-4) instead of 10 bonus marks already awarded to him by the respondents.Accordingly, the present writ petition is allowed and the respondents are directed to consider the candidature of the petitioner after granting 15 bonus marks in place of 10 bonus marks on the basis of Certificate (Annexure-4) and in case after granting 15 bonus marks, if any person who stood lower in merit than the petitioner, has been offered appointment, then the case of the petitioner be also considered for appointment on and from the date the persons junior to him have been offered appointment. 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.Petition allowed. *******