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2004 DIGILAW 1726 (RAJ)

Mukesh Kumar v. State of Rajasthan

2004-12-03

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - The writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 20.3.2003 with the prayer that by an appropriate writ, order or direction, the order dated 24.2.2002 (Annexure P-4) by which the respondent No. 3 Addl. Vikas Adhikari, Primary Education, Panchayat Samiti Sarada, Distt. Udaipur gave appointment to the respondent No. 5 Smt. Durga Meena on the post of Additional Shiksha Sahayogi in the school Rodawat of Gram Panchayat Adwas and directed her to undergo training from 1.6.2002 to 30.6.2002 in the Government Upper Primary School, Amarpura (Sarada) be quashed and set aside and further, the provisions of reservations made in the circular Annexure P-6 dated 30.4.2001 that the selection of para-teachers would be made from the category of the persons of which the post of Sarpanch was reserved for the Panchayat be declared illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and further, the respondents be directed to give appointment to the petitioner on the post of Additional Shiksha Sahayogi for School Rodawat, Gram Panchayat Adwas in place of respondent No. 5 Smt. Durga Meena as her appointment was illegal and against the rules. 2. The case of the petitioner as put forward by him in this writ petition is as follows : The petitioner is a member of schedule caste category and he possesses educational qualifications of B.A. and also training qualifications of B.Ed. from Mohanlal Sukhadia University, Udaipur. The copy of mark-sheet of B.A. Examination, 2000 and copy of B.Ed. Examination, 2001 are marked as Annexure P-1 and Annexure P-2 respectively. from Mohanlal Sukhadia University, Udaipur. The copy of mark-sheet of B.A. Examination, 2000 and copy of B.Ed. Examination, 2001 are marked as Annexure P-1 and Annexure P-2 respectively. The further case of the petitioner is that the applications were invited by the respondent Department for appointment to the post of Para- teacher/Additional Shiksha Sahayogi for the School Rodawat and for that, the selection was to be held on 20.5.2002 in the Gram Panchayat Adwas and the petitioner being fully eligible and qualified, applied for the said post of Additional Shiksha Sahayogi and appeared before the Selection Committee and the Selection Committee prepared a panel of three candidates and took a decision unanimously that appointment on the post of Additional Shiksha Sahyogi be given to the petitioner as he stood top in the merit and a copy of the selection panel prepared by the Selection Committee on 20.5.2002 is Annexure P-2.The further case of the petitioner is that thereafter, the respondent No. 3 Additional Vikas Adhikari vide order dated 24.3.2002 (Annexure P-4) issued the list of all the selected candidates for the post of Shiksha Sahayogi/Para Teacher/Addl. Shiksha Sahayogi and directed them to undergo training from 1.6.2002 to 30.6.2002 in the Government Upper Primary School, Amarpura (Sarada), but in that order Annexure P-4, the name of the petitioner was not there and on the contrary, the respondent No. 5 Smt. Durga Meena was appointed on the post of Addl. Shiksha Sahayogi for the School Rodawat, Gram Panchayat Adwas and she was directed to undergo training and her name was shown at serial No. 37.The further case of the petitioner is that as soon as he came to know that in disregard to his claim, the respondent No. 5 Smt. Surga Meena was appointed as Addl. Shiksha Sahayogi for the School Rodawat, Gram Panchayat Adwas and she was directed to undergo training and her name was shown at serial No. 37.The further case of the petitioner is that as soon as he came to know that in disregard to his claim, the respondent No. 5 Smt. Surga Meena was appointed as Addl. Shiksha Sahayogi for the School Rodawat, Gram Panchayat Adwas and she was sent for training through impugned order Annexure P-4, he made a representation Annexure P-5 to the respondents on 31.5.2002, but the same was not decided by the respondents.However, the petitioner has come to know that despite his selection and standing first in the merit, he was not given appointment in view of the provisions of reservations made in the circular Annexure P-6 dated 30.4.2001 to the effect that selection of the Para-Teachers would be made from the category of the persons of which the post of Sarpanch was reserved for the Panchayat and since the Sarpanch of the Gram Panchayat Adwas was of different caste and was of the caste of respondent No. 5 Smt. Durga Meena, therefore, appointment was given to the respondent No. 5 Smt. Durga Meena ignoring the claim of the petitioner and according to the petitioner, the above provisions of reservations made in the impugned circular Annexure P-6 dated 30.4.2001 are wholly illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and thus, the same cannot be sustained and liable to be quashed and set aside.The further case of the petitioner is that since he stood first in the merit and the respondent No. 5 Smt. Durga Meena was lower in Annexure P-3 dated 20.5.2002, therefore, appointment should have been given to the petitioner in place of respondent No. 5 and by not giving appointment to the petitioner, the respondent Nos. 1 to 4 have acted illegally and arbitrarily and their action is highly discriminatory, arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India. Hence. Hence, this writ petition with the prayers as stated above.A reply to the writ petition was filed by the respondent Nos. 1 to 4 have acted illegally and arbitrarily and their action is highly discriminatory, arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India. Hence. Hence, this writ petition with the prayers as stated above.A reply to the writ petition was filed by the respondent Nos. 1 to 3 and their case is that as per provisions of reservations made in the Circular Annexure P-6 dated 30.4.2001, selection for the post of Para Teachers would be made from the category of the persons to which the post of Sarpanch was reserved for the Panchayat and since the petitioner does not belong to the same category/caste to which the Sarpanch of Gram Panchayat Adwas belonged i.e. scheduled tribe category, therefore, he was not given appointment and since respondent No. 5 Smt. Durga Meena was of the same caste/category i.e. scheduled tribe category to which the Sarpanch of Gram Panchayat Adwas belonged, therefore, she was given appointment in place of the petitioner and by doing so, no illegality or irregularity has been committed by the respondent Nos. 1 to 3 as the appointment to the respondent No. 5 was given in accordance with the provisions of reservations made in the circular Annexure P-6 dated 30.4.2001. Hence, no interference is called for and this writ petition deserves to be dismissed.During the pendency of this writ petition, an additional affidavit was filed by the petitioner stating inter alia that the respondent No. 5 Smt. Durga Meena has been selected on the post of Teacher Grade III (Physical Teacher) and a regular appointment has been given to her vide order dated 31.3.2004 (Annexure P-8) passed by the District Education Officer, Primary Education, Udaipur and in pursuance of the appointment order Annexure P-6, the respondent No. 5 has joined her duties in the Government Upper Primary School, Idaana in Panchayat Samiti Salumber and therefore, the post of Para teacher/Additional Shiksha Sahayogi in Rajiv Gandhi Pathshala, Rodawat, Adwas is lying vacant and thus, now the respondent Nos. 1 to 4 be directed to give appointment to the petitioner to the said post. 3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the entire materials available on record. 4. 1 to 4 be directed to give appointment to the petitioner to the said post. 3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the entire materials available on record. 4. There is no dispute on the point that for appointment to the post of Para- Teacher/Additional Shiksha Sahayogi for the School Rodawat, Gram Panchayat Adwas, the selection was held by the Gram Panchayat Adwas and the Selection Committee prepared a panel of three candidates on 20.5.2002 (Annexure P-3) and a bare perusal of Selection Panel Annexure P-3 reveals that the petitioner secured 54.70% marks while the respondent No. 4 Smt. Durga Meena secured 47.43% marks and thus, the Selection Committee took the decision unanimously that appointment on the post of Additional Shiksha Sahayogi be given to the petitioner as he stood top in the merit. 5. There is also no dispute on the point that the petitioner is a member of scheduled caste category, while the respondent No. 5 Smt. Durga Meena is a member of scheduled tribe category. 6. There is also no dispute on the point that in the impugned Circular Annexure P-6 dated 30.4.2001 provisions of reservations were made on the basis of caste in the manner that selection of the Para-Teachers would be made from the category of the persons of which the post of Sarpanch was reserved for the Panchayat. 7. There is also no dispute on the point that through order Annexure P-4 dated 24.3.2002, the respondent No. 5 Smt. Durga Meena was appointed on the post of Addl. Shiksha Sahayogi for the School Rodawat, Gram Panchayat Adwas and she was directed to undergo training from 1.6.2002 to 30.6.2002 in the Government Upper Primary School, Amarpura (Sarada) and she was given appointment on the basis that she belonged to the same category/caste to which the Sarpanch of Gram Panchayat Adwas belonged i.e. scheduled tribe category. 8. Shiksha Sahayogi for the School Rodawat, Gram Panchayat Adwas and she was directed to undergo training from 1.6.2002 to 30.6.2002 in the Government Upper Primary School, Amarpura (Sarada) and she was given appointment on the basis that she belonged to the same category/caste to which the Sarpanch of Gram Panchayat Adwas belonged i.e. scheduled tribe category. 8. There is also no dispute on the point that during the pendency of this writ petition, the respondent No. 1 Smt. Durga Meena was appointed on the post of Teacher Grade III (Physical Teacher) vide order dated 31/3/2004 (Annexure P-8) passed by the District Education Officer, Primary Education, Jdaipur and in pursuance of the appointment order Annexure P-8, the respondent No. 5 has joined her duties in the Government Upper Primary School, Idaana in Panchayat Samiti Salumber. 9. The question for consideration is whether in the facts and circumstances just narrated above, the petitioner is entitled to seek appointment on the post of Para Teacher/Additional Shiksha Sahayogi for the School Rodawat, Gram Panchayat Adwas for which he stood first in the merit or not or in other words, whether the provisions of reservations made in the impugned circular Annexure P-6 dated 30.4.2001 on the basis of caste in the manner that selection of the Para-Teachers would be made from the category of the persons of which the post of Sarpanch was reserved for the Panchat are violative of Articles 14 and 16 of the Constitution of India or not. 10. In D.B. Civil Writ Petition No. 1879/2002, Duleshwara v. Union of India and others where order of linking appointments of para-teachers to the class to which elected post of Sarpanch was reserved was challenged, the Division Bench of this Court through order dated 28.1.2003 came to the conclusion that there was no justification to establish any rational nexus with object sought to be achieved by linking appointments to community of the elected Sarpanch. 11. 11. In my considered opinion, when a person has been selected and stood first in merit, denial of appointment to him on the ground that Sarpanch belonged to another caste/category is nothing, but it is wholly illegal, unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India, and in view of this, the provisions of reservations made in the impugned Circular Annexure P-6 dated 30.4.2001 on the basis of caste cannot be sustained as there appears to be no rational nexus with object sought to be achieved by linking appointments of para-teachers to the class to which post of the Sarpanch was reserved and further, they appear to be wholly unreasonable and arbitrary and discriminatory. 12. 12. For the reasons stated above, it is held that the provisions of reservations made in the impugned Circular Annexure P-6 dated 30.4.2001 on the basis of caste in the manner that selection of the Para-Teachers would be made from the category of the persons of which the post of Sarpanch was reserved for the Panchayat are wholly unreasonable, illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and thus, the same cannot be sustained and liable to be set aside and therefore, giving of appointment to the respondent No. 5 Smt. Durga Meena through order Annexure P-4 dated 24.3.2002 ignoring the claim of the petitioner on the ground that he did not belong to the same caste/category to which Sarpanch belonged, cannot be sustained and liable to be set aside and since the petitioner stood first in the merit as is evident from Selection Panel Annexure P-3, therefore, he was entitled to appointment on the post of Additional Shiksha Sahayogi for School Rodawat Gram Panchayat Adwas in place of respondent No. 5, who has already left the said post on her regular appointment on the post of Teacher Grade III (Physical Teacher) vide order dated 31.3.2001 (Annexure P-8) and this writ petition deserves to be allowed.Accordingly, this writ petition filed by the petitioner is allowed and the provisions of reservations made in the impugned Circular Annexure P-6 dated 30.4.2001 on the basis of caste in the manner that selection of the Para- Teachers would be made from the category of the persons of which the post of Sarpanch was reserved for the Panchayat are quashed and set aside and further, the order dated 24.3.2002 (Annexure P-4) passed by the respondent No. 3 Addl. Vikas Adhikari qua the respondent No. 5 Smt. Durga Meena by which she was given appointment on the post of Additional Shiksha Sahayogi for School Rodawat, Gram Panchayat Adwas and sent for training is also quashed and set aside and it is directed that in place of the respondent No. 5 Smt. Durga Meena, the petitioner be appointed on the post of Additional Shiksha Sahayogi for School Rodawat, Gram Panchayat Adwas and he be sent for training. It is made clear that the petitioner would be entitled to get benefits including salary from the date of his actual appointment. No order as to costs.Petition allowed. *******