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2005 DIGILAW 3106 (RAJ)

Madhu Soni v. State of Rajasthan

2005-11-23

KRISHAN KUMAR ACHARYA, S.N.JHA

body2005
Judgment 1. The dispute in this appeal relates to appointment on the post of Teacher Gr. III in the Upper Primary Schools in the State of Rajasthan vide advertisement No. 18/1998 applications were invited for appointment on the post. As per the relevant circular, the merit list was to be prepared, among other things, by giving bonus marks on the basis of residence. The penal came in under challenge in a number of writ petitions in this Court. A Full Bench of the Court vide decision in Deepak Kumar Suthar vs. State of Rajasthan & Ors., 1999 (2) RLR 692, held that no appointment can be made by giving advantage of bonus marks on the basis of residence of the candidates in a particular district or rural area. The Supreme Court on appeal vide decision in Kailash Chandra Sharma vs. State of Rajasthan & Ors., 2002 (6) SCC 562 , agreeing with the High Court to that extent held that no guidelines at all was discernable from the impugned circular as to the identification of residence of the applicants having regard to the indefinite nature of concept of residence and, therefore, the provision regarding bonus marks to the rural residents was in conflict with Article 14 of the Constitution of India. However, having regard to the conflicting claims and keeping in view the factual scenario of the case, the Supreme Court applying the principle prospective overruling did not thought it appropriate to interfere with the appointments already made upto 111.1999. Further, the Supreme Court confined the relief to the candidate who had filed the writ petitions in the High Court. It would be useful to refer to the relevant part of the Judgment as under:- “Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance to competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court, and to make appointments made on or after 111.1999 in any of the districts subject to the claims of the petitions. Accordingly, we direct: (1) Theclaims of the writ petitioners should be considered afresh in the light of this Judgment vis-a-vis the candidates in the select list who are yet to be appointed. Accordingly, we direct: (1) Theclaims of the writ petitioners should be considered afresh in the light of this Judgment vis-a-vis the candidates in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 111.1999. (2) Theappointments made upto 111.1999 need not be reopened and reconsidered in the light of the law laid down in this Judgment . (3) ...................................” (emphasis added) 2. In the light of the subsequent direction of this Court a revised merit was prepared excluding bonus marks awarded to the candidates on the basis of their residence. At this stage again a number of writ petitions including the one by the appellant came to be filed in this Court. They were dismissed by common order on 10.09.2003. Contending that her case stands on different footing the appellant preferred this appeal. As the writ petition had been disposed of without reply of the respondents, they were permitted to file the reply in the appeal which they filed. 3. Shri P.R. Mehta, appearing for the appellant strenuously contended that the marks of the appellant being more than the Respondent No. 3 Ishwar Bharti (hereinafter referred to as the ‘respondent’) the appellant was entitled to appointment but ignoring her claim, the authorities appointed the respondent. Counsel submitted that there is no dispute that after excluding the bonus marks, the appellant secured 60.74% whereas the respondents marks was 59.64%. While dealing with the case of the respondents that the appellant could not be appointed as he had not filed writ petition in terms of the direction of the Supreme Court, Counsel took the stand that like the appellant the respondent also did not file any writ petition and, therefore, he too could not be appointed much less ignoring the claim of the appellant. 4. Submissions of the Counsel on both counts are misconceived and fit to be summarily rejected. 4. Submissions of the Counsel on both counts are misconceived and fit to be summarily rejected. As far as appellants own claim is concerned, it is the admitted position that she did not file any writ petition and the irresistible conclusion, therefore, is that the in view of the directions of the Supreme Court confining the relief “only to the petitioners who moved the High Court” the authorities could not have considered her case. It may be mentioned here that the aforesaid direction in Kailash Chandra Sharmas case (Supra), was reiterated by the Supreme Court in the case of Harshendra Choubisa & Ors. vs. State of Rajasthan & Ors , AIR 2002 SC 2897 . 5. As regards appointment of the respondent we are satisfied that he stands on a different footing vis-a-vis the appellant and, therefore, the authorities did not commit any error in appointing him. His name already figured in the penal and but for the challenge by the unsuccessful candidates, he would have been appointed in the ordinary course. Plainly, thus, he was not required to file any writ petition. It is true that after excluding the bonus marks percentage of marks of the respondent turned out to be higher than that of the appellant, and if this were the only fact to be taken into account, the appellant certainly would have been appointed on the post in the normal course but for the fact that the Supreme Court restricted the benefit of exclusion of bonus marks only to persons who had already moved the High Court. If , thus, the respondent was not required to file writ petition by virtue of his placement in the merit list, the submission that he could not be offered appointment has no legs to stand. The claim of the appellant for her own appointment is otherwise fully covered by the directions of the Supreme Court pursuant to cases of only those who had moved the High Court, could be considered. The appellant not having moved the High Court. we do not find any distinction between her case and those of others dismissed by the learned Single Judge by the impugned order. 6. In the above premises, we find no error in the order of the Single Judge to warrant interference by the Division Bench. 7. The appeal is accordingly dismissed.