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2004 DIGILAW 1693 (RAJ)

State of Rajasthan v. Javad Akhtar

2004-11-25

AJAY RASTOGI

body2004
Judgment Rajesh Balia, J.-All these appeals raise a common issue. The principal Judgment was delivered by the learned Single Judge on 20.02.2004 deciding 13 writ petitions and Writ Petition No. 5723/2003 filed by Anupam Mehta was decided on 26.03.2004 following the earlier Judgment dated 20.02.2004 referred to above. 2. In all the writ petitions, the petitioners had appeared for selections held for appointing Physical Training Instructor Grade-III in Bhilwara District where in all 116 posts were advertised. 95 for male schools and 21 for female schools. After being selected, all the petitioners were issued appointment orders to join their duties within the appointed date. However, when the petitioners after fulfilling all the conditions of selection and appointment orders appeared for joining at the appointed day, they were not allowed to join. This led to filing of all these writ petitions. 3. The factual aspect of the matter has not been disputed. The replies which have been submitted in some of the cases carry different versions. While in replies filed in some of the cases, it was stated that 116 posts have wrongly been notified by that advertisement. In fact, only 72 posts were lying vacant, out of which 52 boys and 17 girls candidates have been given appointment. If the remaining 44 posts are vacant till 31.03.2004 the appointment will be given after approval from the State Government. This reply also does not clearly state that the vacancies were not there. The affidavit has been sworn on the basis of knowledge based on official record. However, it is difficult to understand that if the correct vacancies is based on official record, what was necessity to state that 44 posts still remained to be filled in order of merit. 4. Be that as it may, the learned Single Judge was of the opinion that once after completion of selection process, the appointment orders have been issued, and reached the appointees, thereafter, the said orders cannot be refused to be implemented, which virtually amounts to cancellation of appointment validly given to an incumbent as a result of due selection. Such appointments can only be cancelled in accordance with the procedure known to law. Such appointments can only be cancelled in accordance with the procedure known to law. Apparently, no fault lies on the part of the petitioners (respondents in these appeals) in securing such appointments nor can it be said that they have got appointments by any unfair means or they do not possess any requisite qualification which may otherwise render them ineligible or unsuitable for being appointed. 5. The conclusion reached by the learned Single Judge to us appeared to be unassailable. It is not a case where the appointment orders have not been issued by the appointing authority beyond a particular number of candidates in order of merit. Once appointment order has been communicated to the respective appointees, it creates corresponding rights in the appointed candidates to reap the benefits of such appointment orders unless appointment orders are cancelled in accordance with law. Once in pursuance of appointment orders, the candidate presents himself for joining the duty at the place of posting, it amounts to acceptance of appointment order and the same cannot be influctuated by not allowing to join them in the absence of any anterior order of withdrawal of appointment orders. Subsequent unilateral cancellation of appointment order, if any, cannot take away such vested right, as it would amount to perpetuate the illegality of action, affecting rights of incumbents adversely in breach of principles of natural justice, equity and fair play. 6. Faced with this situation, the learned Additional Advocate General stated that without going into the question of number of vacancies advertised if the vacancies occurring subsequently are filled, petitioners can be allowed to join against existing current vacancies, on the basis of their regular selections. 7. The learned Counsel for the respondent, on the other hand, urged that in the facts and circumstances, notwithstanding that the refusal to allow them to join when they presented themselves at different schools in time, has resulted in loss of their emoluments, they having not discharged duties they may claim benefits of the emoluments w.e.f. the date they have been denied to join duties, and may not insist on such loss, but otherwise their standing in seniority, as per order of merit ought to be maintained. 8. Considering all the facts and circumstances of the case, the appeals are dismissed on merit. The respondent-petitioners shall be allowed to join on their respective place of postings as per their appointment letters. 8. Considering all the facts and circumstances of the case, the appeals are dismissed on merit. The respondent-petitioners shall be allowed to join on their respective place of postings as per their appointment letters. However, the respondents shall be entitled to actual emoluments of the post only with effect from the date when they actually join their duties, but for the purpose of seniority and other benefits, they shall not be placed at lesser advantageous position than those who have been allowed to join their duties in pursuance of the order issued initially in pursuance of the same selections. The respondent/ petitioners shall be allowed to join by 012.2004 and if they do not join by 012.2004, their services shall automatically be terminated according to appointment orders. 9. There shall be no order as to costs.