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2005 DIGILAW 3007 (RAJ)

Bachu Singh v. State of Rajasthan

2005-11-17

AJAY RASTOGI

body2005
Judgment Ajay Rastogi, J.-Instant writ petition has been filed by the petitioner seeking appointment on the post of Patwari from the date applicants junior to him were considered and appointed on the said post whose names find place in the select/merit list at Serial Nos. 37-39 (Annexure-1). 2. The Chief Engineer, Department of Irrigation, Government of Rajasthan initiated the porcess of selection in pursuant to advertisement for the post of Patwari. The petitioner was also eligible participated and found suitable. The petitioners name finds place at Serial No. 17 and he secured 196 marks. At this stage, I would like to mention that the applicants whose names find place at Serial Nos. 36, 37, 38 and 39 who secured 155 ½, 154, 154 and 153 ½ marks, were given appointment by the respondents and so far as the Applicant No. 35 Bachu Singh S/o Ratan Singh is concerned, who participated alongwith the petitioner and secured 158 marks, was also given appointment as Patwari in pursuant to order of this Court passed in C.W. No. 4233/1988, decided on 22.02.1991. 3. Counsel for petitioner submits that he made representation in the office of respondents, but the same remain unattended and he had no option to join on daily wages basis as Amin in the office of respondents and worked for a short time. 4. Shri Karan Pal Singh, Counsel for petitioner contends that Bachu Singh S/o Ratan Singh was undisputedly participated in the same process of selection and lower in the order of merit and other applicants, who too were lower in the order of merit were considered for appointment by the Government. 5. This Court vide its order dated 22.02.1991 considered to be a case of discriminatory action and finally directed to consider him for appointment and the Judgment of this Court has attained finality. In such circumstances, denial of appointment to the petitioner is in violation of Article 14 and so also Article 16 of the Constitution of India. He further contends that on the representation submitted by him, his case was also recommended by the Executive Engineer, Irrigation Department, Sawaimadhopur evident from Annexure-9 for consideration of his candidature for appointment in view of his name finds place in the merit list prepared by the respondents. 6. He further contends that on the representation submitted by him, his case was also recommended by the Executive Engineer, Irrigation Department, Sawaimadhopur evident from Annexure-9 for consideration of his candidature for appointment in view of his name finds place in the merit list prepared by the respondents. 6. Respondents have filed reply to the writ petition and Shri Agarwal, Counsel for respondents submits that the selection process was initiated for Jaipur Zone and all candidates were finally selected and appointed and for rest of the select list, intimation was sent to other zone and the letter was sent from Udaipur Zone on 03.01.1986 (Annexure R/1) calling upon such applicants along with the petitioner for their interview but the petitioner failed to appear in pursuance thereof . 7. It has further been averred that all those successful examinees like the petitioner for the Patwari examination were called for interview and after checking their documents, they were appointed, but since, the petitioner did not turn up as such no parity can now be claimed by him for seeking appointment merely on the premise that those to whom appointment has been offered were lower in the order of merit and no post is now available against which the petitioner can be considered for appointment and apart from it, once the petitioner despite selection for the post of Patwari has joined on the lower post of Amin in the very department, his right of consideration for the post of Patwari ceizes and he cannot now claim merely on the basis of selection which otherwise does not confer any right on the petitioner. 8. I have considered the submissions of both the parties and with their assistance perused the material on record. 9. This fact remain undisputed that all those to whom appointment has been offered, participated in a common process of selection held by the respondents in pursuant to advertisement issued in the year 1985 and final select list/merit list was prepared in which the petitioners name finds place at Sr. No. 17 and those who are in lower order of merit, their names find place at Sr. Nos. 36-39 who were given appointment by the respondents and so far as No. 35 Bachu Singh S/o Ratan Singh is concerned, in pursuant to order of this Court vide order dated 22.01.1991 he too got appointment. 10. No. 17 and those who are in lower order of merit, their names find place at Sr. Nos. 36-39 who were given appointment by the respondents and so far as No. 35 Bachu Singh S/o Ratan Singh is concerned, in pursuant to order of this Court vide order dated 22.01.1991 he too got appointment. 10. It is true that mere selection or placement in the order of merit does not confer any right, but if applicants lower in the order of merit have been considered and appointed on the basis of common process of selection, in my opinion, the right of those who are higher in order of merit, their legal and fundamental rights are affected and he has right to seek appointment from the date those who are lower in the order of merit were considered for appointment. This fact has not been disputed by the Counsel for respondents that he was higher in the order of merit, but the defence, which has been submitted, is that intimation was sent and the petitioner did not turn up, I find that the submission is not properly supported by any material on record. 11. Counsel has place before me certain documents from their personal record and I find that names are mentioned, but there is no material to show that letter was at all sent and received by the petitioner. Even otherwise, letters were sent not for seeking their consent, but it was for the purpose of calling them for interview, in my opinion, once the petitioner was finally selected in the process of selection, there is no provision in the rules calling upon the selected candidates for interview and such letters issued from the office of respondents even otherwise was of no legal significance. The other submission made by the respondents that the petitioner joined at his own will on the post of Amin as such his right ceizes. In my opinion, the petitioner participated in the process of selection for the post of Patwari and joining on the lower post does not ceize his right of his consideration for which he participated and finally selected. The same controversy has been examined by this Court in C.W. No. 4233/1991, decided 22.02.1991. In my opinion, the petitioner participated in the process of selection for the post of Patwari and joining on the lower post does not ceize his right of his consideration for which he participated and finally selected. The same controversy has been examined by this Court in C.W. No. 4233/1991, decided 22.02.1991. I completely agree with the view expressed by the Co-ordinate Bench and in my opinion, denial of appointment to the petitioner in the facts and circumstances of the present case is in clear violation of Article 14 of the Constitution of India. There is no reasonable justification came forward to deny him appointment. 12. Accordingly, the writ petition is allowed and the respondents are directed to give appointment to the petitioner on the post of Patwari in pursuant to process of selection in which he had participated from the date applicants lower in the order of merit have been given appointment. However, the petitioner will be entitled for consequential benefits including continuity of service and notional fixation, but no arrears shall be paid to the petitioner for the intervening period till he joins service in pursuant to order of this Court. Appropriate orders be passed in compliance of order of this Court within two months. 13. The writ petition in above terms is allowed. No order as to costs.