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2008 DIGILAW 472 (RAJ)

Bhonri Lal Sharma v. State of Rajasthan

2008-02-15

P.S.ASOPA

body2008
JUDGMENT 1. - The present writ petitions have been filed in the years 1999, 2002 and 2003 for filling up the vacancies on account of non-joining of the candidates selected and appointed in pursuance of the advertisement dated 23.7.1986 inviting applications for the post of Lower Division Clerks (LDCs). The selections were first made by the Rajasthan Public Service Commission district-wise and orders have also been issued by the State Government for district-wise appointments. Subsequently, the Division Bench of this Court had struck down Rules 19 and 24 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (in short, 'the Rules of 1957') regarding holding examinations and preparing merit-list district-wise and directed the State Government to prepare a State-wise merit list to fill up the remaining posts of LDC numbering to 906 plus vacancies upto 10.4.1991. 2. This case has chequered history as the advertisement was issued in the year 1986 and the litigation is going on upto 2007 on account of the fact that there was a dispute about the exact number of vacant posts of LDC to be filled up in compliance of the aforesaid judgment of the Division Bench, which remained vacant on account of non-joining as well as the different numbers of vacancy/post shown by the State before the Division Bench, Special Leave Petition in Supreme Court and also in the contempt petition. 3. The Supreme Court vide order dated 1.8.2005 passed in a contempt petition have liberty to the petitioner (therein) to file substantive writ petition for filling up 248 unfilled vacancies. Therefore, the issue before the Court is whether there were 248 vacancies in existence on 1.8.2005 and whether the petitioners are entitled for appointment as per the aforesaid order of the Supreme Court. 4. It would be appropriate to narrate the history of the case before proceeding further. 5. The advertisement in this case was issued for 888 vacancies for the subordinate officer in the year 1986 for which Combined Competitive Examination was held and the successful candidates were given appointment first district-wise in accordance with the Rules of 1957. On 10.4.1991, this Court passed the interim measure directing the State Government to supply the statement of district- wise and department-wise vacancies. This Court has also directed the State Government to prepare the list after inviting options from the candidates other than -those who have been appointed against 906 vacancies. On 10.4.1991, this Court passed the interim measure directing the State Government to supply the statement of district- wise and department-wise vacancies. This Court has also directed the State Government to prepare the list after inviting options from the candidates other than -those who have been appointed against 906 vacancies. The Division Bench vide its order dated 7.5.1992 struck down second proviso to Rule 19 and Rule 24(1) of the Rules of 1957 as violative of Articles 14 and 16 of the Constitution of India. This Court has also directed that such posts of LDC which were still lying vacant out of 906 posts shall be filled up after preparing state-wise merit list and not district-wise merit list. Against the said judgment, the SLP was filed before the Supreme Court and the Hon'ble Supreme Court directed that those candidates who have secured more marks than those who have already been appointed either on the State level or district level will be accommodated in the remaining vacancies of 2597 plus the vacancies upto 10.4.1991. The Court has also directed to inform the actual number of vacancies. 6. When the State Government did not fill up all the vacancies of LDCs tili 10.4.1991 an application for direction alongwith contempt petition was filed before the Supreme Court and affidavits were also filed on behalf of the State before the Supreme Court stating therein that out of 2597 vacancies 174 vacancies unfilled have been filled in accordance with the merit list of the examination in question as per the direction of this Court and there were no more vacancies till 10.4.1991. The Supreme Court disposed of the contempt petition on the basis of the said affidavit. 7. On coming to know that still vacancies were available and the same had not been filled up, another contempt petition was filed in the Supreme Court and the same was decided on the basis of the affidavit filed by the Shri Inderjeet Khanna, the then Chief Secretary, State of Rajasthan. In the said affidavit, it was stated that the number of vacancies till 10.4.1991 were 3831. The affidavit also suggests that against the aforesaid vacancies 3867 successful candidates have been allotted and the offer of appointment had also been sent to them. In the said affidavit, it was stated that the number of vacancies till 10.4.1991 were 3831. The affidavit also suggests that against the aforesaid vacancies 3867 successful candidates have been allotted and the offer of appointment had also been sent to them. Thereafter, list of the said 3867 candidates appointment was filed before the Supreme Court and it has come to the notice of the Court that out of 906 vacancies directed to be filled by the Division Bench by preparing the State-wise merit list, only 568 vacancies have been filled and 248 have not been filled at all. Subsequently, a fresh list of 248 candidates was filed before this Court against 248 candidates was filed before this Court against 248 unfilled vacancies of 906 seats but the said 248 vacancies/posts have fallen vacant on account of the non-joining of the candidates and their names which were shown in the earlier list of 906, were also repeated in the final list of 3867 candidates. Petitioner Bhonri Lai has filed an affidavit and placed these orders of the Supreme Court on record. 8. The State Government in its counter affidavits has not made the position clear to the extent that the name of the persons who were appointed against the 906 vacancies and did not join still stand in the said list and further their names had been deleted before the appointments have been made against 248 vacancies treating them as vacancies which remained unfilled on account of non-joining. 9. Although the counsel for the parties have made various submissions but the same cannot be considered by this Court on account of the fact that the liberty has been granted by the Supreme Court vide order dated 1.8.2005 to the petitioners regarding 248 vacancies as detailed out hereinabove and all other issues stand concluded on account of final judgment and the decision of the above contempt petitions by the Supreme Court. 10. On the issue of 248 vacancies, the submission of the counsel for the petitioners is that the said posts were lying vacant on 1.8.2005. The State Government while making appointments against 248 vacancies had not deleted the names of the said candidates while calculating total number of vacancy and filing the affidavits in contempt petition before the Supreme Court. Had their names been deleted, then the petitioners would have been considered for appointment as per the State-wise merit list. The State Government while making appointments against 248 vacancies had not deleted the names of the said candidates while calculating total number of vacancy and filing the affidavits in contempt petition before the Supreme Court. Had their names been deleted, then the petitioners would have been considered for appointment as per the State-wise merit list. 11. The submission of Mr. Bharat Vyas is that the matter stands concluded by the Division Bench judgment of this Court in Ram Babu v. R.K. Nayar & Ors., DBCCP No. 226 of 2004 decided on 10.2.2005 . Otherwise also, even if the petitioners want to avail the liberty then they ought to have filed fresh writ petition. He further submits that after expiry of 21 years of the date of selection, no direction can be given. 12. It would be appropriate to refer and reproduce the relevant portion of various orders judgments passed by the Supreme Court and by this Court whereby directions have been issued to the respondent-State for filling up 906 vacancies and total number of vacancies which include 906 vacancies. The same are as under : "1. Interim order dated 10.4.1991 passed by the Division Bench of this Court in D.B. Civil Special Appeal No. 107 of 1991, State of Rajasthan & Ors. v. Miss Sunita Gupta . After having heard learned counsel for the parties, we direct the Government to supply a statement of district-wise, department-wise vacancies to the Rajasthan Public Service Commission so far as 906 vacancies are concerned and this should be done within a period of two weeks. The RPSC thereafter after one week shall invite options from the candidates other than who have already been given appointments as Lower Division Clerks for one more district and after receiving the options will prepare a fresh list for those 906 vacancies and forward it to the Government. The Government shall make appointments as per that list within three weeks thereafter. We also direct that the Government shall not make any ad hoc urgent temporary appointment on the posts of Lower Division Clerk throughout Rajasthan in any department. Subject to what has been ordered above, the operation of the order of the learned Single Judge is stayed. ............" 2. We also direct that the Government shall not make any ad hoc urgent temporary appointment on the posts of Lower Division Clerk throughout Rajasthan in any department. Subject to what has been ordered above, the operation of the order of the learned Single Judge is stayed. ............" 2. Final order dated 7.5.1992 passed by the Division Bench of this Court in DBCWP No. 7072 of 1991, Om Prakash Sharma v. The State of Rajasthan & Another 1 to 10 ................ 11. It was given out by the learned counsel on behalf of the petitioner that the Court in another D.B. Civil Special Appeal (Writ) No. 107 of 1991, State and another v. Sunita Gupta , had given direction, on April 10, 1991 that 906 vacancies of LDCs, which have not yet been filled up, be now filled up, by the State. Thereafter, an application was filed on behalf of several respondents in the said Special Appeal that 337 posts of LDCs are still lying vacant as several persons to whom appointments of LDCs were offered, have not joined. It was further made clear on behalf of the petitioners that they do not desire to disturb the appointments already given on the posts of LDCs and that the remaining posts be filled up on State-wise merit, which may be prepared by the RPSC on the basis of the examination held in 1986. It may be pointed out that in the present writ petitions, challenge given to some of the Rules of 1957 was under consideration and question of disturbing the appointments, on the posts of LDCs already given, does not arise, nor there is any such prayer and those appointed have also not been arrayed as parties in these writ petitions. However, since the relevant portions of Rules 19 and 24 of the rules, 1957, regarding holding examination district-wise and preparing merit list also on district basis have been struck down, therefore, we direct that such posts of LDCs which are still lying vacant out of 906 posts, shall be filled up, after preparing the list on State-wise merit basis. However, since the relevant portions of Rules 19 and 24 of the rules, 1957, regarding holding examination district-wise and preparing merit list also on district basis have been struck down, therefore, we direct that such posts of LDCs which are still lying vacant out of 906 posts, shall be filled up, after preparing the list on State-wise merit basis. This list should be prepared on the basis of the marks obtained by the petitioners and even such other candidates, who have not approached this Court on the basis of marks obtained by them in the examination held in the year 1986 by the RPSC in which the merit lists were prepared on district-basis. The RPSC shall invite options from the candidates other than those who had already been given appointments as LDCs, for one more district and after receiving the options, will prepare a fresh list for such number of vacancies as may be still lying vacant, out of 906 vacancies referred to above. Thereafter, this list shall be forwarded to the Government. The Government shall make appointments as per the list, on the un-filled posts out of 906 posts mentioned above, within four weeks, thereafter. 12. In the result, the writ petitions are allowed, as above, with no order as to costs. (emphasis supplied) 3. Order dated 27.9.1993 passed by the Supreme Court in Special Leave, to Appeal (Civil) No. 7114 of 1993, Sunita Gupta v. State of Rajasthan & Ors. It appears that the present selection was held for the vacancies which were available upto 1985-86. The result of the selection was declared on 17th April, 1989. When the matter was before the High Court, the Court directed the State Government to communicate to it the total number of vacancies available till 10th April, 1991. Accordingly, the State Government intimated that there were 2,597 vacancies till April 1991. The High Court thereafter directed that those who were successful in the results declared on the 17th April, 1989 should be accommodated in the said 2,597 vacancies. It is the allegation of the writ petitioners in Writ Petition No. 623/1993 that besides 2,597 vacancies, there are some more vacancies and they are sought to be filled in by regularising the employees who were appointed on ad hoc basis from 1.1.1985 till 31.3.1993. There is a controversy with regard to the actual number of such vacancies. It is the allegation of the writ petitioners in Writ Petition No. 623/1993 that besides 2,597 vacancies, there are some more vacancies and they are sought to be filled in by regularising the employees who were appointed on ad hoc basis from 1.1.1985 till 31.3.1993. There is a controversy with regard to the actual number of such vacancies. It is not necessary for us to go into that controversy. Whatever the number of vacancies the State Government will add them to 2, 597 admitted vacancies up to 10th April, 1991 and accommodate the successful candidates from the selection already held in the said additional 1 vacancies as well. The direction given by the High Court in the impugned order is, therefore, modified as follows : Those candidates who have secured more marks than those who are already appointed either on the State or the district level will be accommodated in the remaining vacancies out 1 of the above 2,597 plus the vacancies upto 10.4.1991 which are sought to be filled in by regularising the ad hoc employees. As far as the other successful candidates in the selection are concerned those who have secured more marks than the ones who are appointed will be given an opportunity to appear in the next selection by suitably relaxing their age for the purpose if they are over-aged. The State Government to communicate to the State Public Service Commission the actual number of vacancies arising after 10th April, 1991 within six weeks from today. The State Public Service Commission to start the selection process within two months after the communication of the vacancies by the State Government and complete the selection process within four months thereafter. (emphasis supplied) 4. Order dated 4.9.2001 passed by the Supreme Court in Contempt Petition (Civil) No. 165 of 1999, Raja Ram Yadav & Ors. v. Arun Kumar & Ors. . ......... Initially, Shri Arun Kumar, Chief Secretary of the State of Rajasthan filed an affidavit which seems to indicate that the total number of vacancies as on 10th April, 1991 was 1823. It is the contention of the petitioners that the figure of 1823 was in addition to 2597, but we do not find any warrant for the same because the affidavit of Shri Arun Kumar does not so indicate. However a further affidavit of the present Chief Secretary Shri Inderjit Khanna has been filed. It is the contention of the petitioners that the figure of 1823 was in addition to 2597, but we do not find any warrant for the same because the affidavit of Shri Arun Kumar does not so indicate. However a further affidavit of the present Chief Secretary Shri Inderjit Khanna has been filed. He has stated that after he took over as Chief Secretary on 1st January, 2000 he has undertaken exercise to find out whether this Court's order has been properly implemented, number of vacancies determined by him, on the basis of the information which he had gathered, for the period 1st January, 1985 to 10th April, 1991 were,could be made available for successful candidates of 1986 examination. Against 3867 successful candidates of 1986 examination have been allocated and we understand that offers of appointment have been sent to them. We are not satisfied that the averments made by Shri Inderjit Khanna can be doubted. The number of vacancies now stipulated, namely, 3831 appears to be more than what had been indicated earlier. It is not possible to come to a conclusion that there has been any contempt, deliberate or otherwise, in complying with the orders of this Court dated 27th September, 1993." Contempt Petition (Civil) No. 165/1999 and the connected petitions are accordingly, dismissed. (emphasis supplied) 5. Order dated 1.8.2005 passed by the Supreme Court in Contempt Petition (C) No. 146 of 2005, Manoj Soni v. Inderjit Khanna & Another : It appears that the appropriate course for the petitioner would be to file a substantive writ petition highlighting the grievance that 248 vacancies have remained unfilled and petitioner is entitled to be appointed against the said vacancies. Without expressing any view on the merits, we dismiss the contempt petition with liberty to the petitioner to file a separate substantive writ petition before the High Court. Contempt Petition (C) No. 158/2005 in SLP (C) No. 8378/1993. The contempt petition is dismissed giving liberty to the petitioner to file a separate writ petition. (emphasis supplied)" 13. Without expressing any view on the merits, we dismiss the contempt petition with liberty to the petitioner to file a separate substantive writ petition before the High Court. Contempt Petition (C) No. 158/2005 in SLP (C) No. 8378/1993. The contempt petition is dismissed giving liberty to the petitioner to file a separate writ petition. (emphasis supplied)" 13. After considering the aforesaid orders, this Court vide order dated 15.2.2007, directed the respondents to file affidavit on the issue of 248 vacancies, operative portion of which are as under : From the reply, it is not clear what has happened to the aforesaid 248 vacancies, cognizance of which was taken by the Supreme Court and liberty was granted to file separate writ petition, while disposing of the contempt petition vide order dated 1st August, 2005. (emphasis supplied)" 14. The respondents have relied on a Division Bench judgment dated 10.2.2005 passed in D.B. Civil Contempt Petition No. 589 of 2003, Bhonri Lai v. R.K. Nayar & Ors. in which Bhonri Lai is one of the petitioners in one of these petitions whereby the contempt petition was dismissed and the aforesaid fact was considered by this Court in its order dated 7.8.2007 which is as follows : "In compliance of the order dated 15.2.2007, the State Government has filed an additional affidavit wherein it has been submitted that they have appointed 248 persons vide order dated 9.10.1992 against the unfilled 248 vacancies. They have also submitted that Division Bench in Contempt Petition had also take note of the said 248 vacancies and vide order dated 10.2.2005 has considered the judgments of the Supreme Court upto 10.2.2005 and held that it is legally not permissible to adjudicate upon a matter which stood concluded upto Supreme Court where the controversy regarding filling up of all vacancies was set at rest in a Special Leave Petition. Relevant portion of the aforesaid order dated 10.2.2005 reads as under : "We fail to understand that although the matter stood concluded before the Supreme Court and it was finally held after accepting the affidavit of the then Chief Secretary that all vacancies had been filled up and the contempt petitions before the Supreme Court were rejected, how a second round of litigation can be allowed to be raised by entertaining fresh contempt petitions before the High Court. Assuming for a moment, that the orders of the High Court were not complied in letter and spirit as per the statement made by the then Chief Secretary before the Supreme Court itself and not before the High Court as this Court has become functus officio even in regard to compliance of its own order since it was threshed out after scrutiny before the Supreme Court and was held that all the vacancies including 248 vacancies were filled up. Therefore, the grievance, if any, in this regard could have been raised by the petitioners before the Supreme Court itself in view of their assertion that in fact all vacancies including 248 vacancies were not filled although the Chief Secretary had asserted so vide his affidavit before the Supreme Court. In so far as the High Court is concerned, it is legally not permissible to adjudicate upon a matter which stood concluded upto the Supreme Court where the controversy regarding filling up of all vacancies were set at rest in a special leave petition referred to herein-before which had been preferred raising the same plea which has been urged in these contempt petitions." In the affidavit filed by the then Chief Secretary Mr. Inderjeet Khanna, much emphasis has been given on filling up 248 vacancies. The last order of Supreme Court appears to be of 1.8.2005 where by the Supreme Court made the petitioners entitled to file a separate writ petition for 248 vacancies. The order dated 1.8.2005 reads as under : "It appears that the appropriate course for the petitioner would be to file a substantive writ petition highlighting the grievance that 248 vacancies have remained unfilled and the petitioner is entitled to be appointed against the said vacancies. Without expressing any view on the merits, we dismiss the contempt petition with liberty to the petitioner to file a separate substantive writ petition before the High Court. The contempt petition is dismissed giving liberty to the petitioner to file a separate writ petition. In the Judgment dated 10.2.2005, the Division Bench observed that in so far as the High Court is concerned, it is legally not permissible to adjudicate upon a matter which stood concluded upto the Supreme Court. The contempt petition is dismissed giving liberty to the petitioner to file a separate writ petition. In the Judgment dated 10.2.2005, the Division Bench observed that in so far as the High Court is concerned, it is legally not permissible to adjudicate upon a matter which stood concluded upto the Supreme Court. But the Supreme Court vide its order dated 1.8.2005 which is of the later date than the date of order passed by Division Bench i.e. 10.2.2005, made the petitioner entitled to file separate substantive writ petition raising grievance that 248 vacancies have remained unfilled. Therefore, present writ petitions are to be decided in the light of observations made by Supreme Court. In the aforesaid facts & circumstances of the case, last opportunity is granted to the Additional Advocate General to place on record the order dated 9.10.1992 with an additional affidavit mentioning the fact whether the said 248 vacancies have remained unfilled or not on the date when Mr. Inderjeet Khanna, the then Chief Secretary filed his affidavit before the Supreme Court. List on 22.8.2007. (emphasis supplied)." 15. Despite specific averments and argument of the petitioners and the aforesaid orders of the Court, the State Government, in its reply, has not made it clear that names of 248 persons from the list of 906 candidates have been struck off on account of their non-joining and subsequently 248 appointments have been made although order of subsequent appointments dated 9.10.1992 has been placed on record. 16. I have gone through the record of the writ petitions and further considered the rival submissions of the parties. 17. I am of the view that the State Government cannot be allowed to take the advantage of its own wrong and at the same time, the petitioners cannot be allowed to suffer due to the mistake on the part of the State, particularly when the Supreme Court had taken cognizance of 248 vacancies on 1.8.2005 and granted liberty to file the writ petition, therefore, the objection of Mr. Bharat Vyas with regard to delay in filing the petitions is liable to be rejected and the same is hereby rejected. 18. Further, the Supreme Court was not aware that similar kind of controversy of non-joining is pending in the High Court. Bharat Vyas with regard to delay in filing the petitions is liable to be rejected and the same is hereby rejected. 18. Further, the Supreme Court was not aware that similar kind of controversy of non-joining is pending in the High Court. As regards filing of the fresh writ petition, the grievance raised in the present writ petitions is also similar, that is, for consideration of their cases for appointment against i vacancies which had fallen vacant on account of non-joining. Intention of the Supreme Court while passing the order dated 1.8.2005 was that the said issue of 248 vacancies is not to be taken up in the contempt petition and for which substantive writ petition is necessary but the fact of pendency of the present writ petitions, wherein the appointments have been claimed against the unfilled vacancies which were finally submitted before the Supreme Court in the said contempt petition, was not brought to the notice of the Supreme Court, therefore, the Supreme Court did not intend to file fresh substantive petition even in case the issue is pending before the High Court. The petitioners as well as the respondents have filed the orders of the Supreme Court and this Court and have also submitted affidavits and counter-affidavits for the aforesaid 248 vacancies, in these writ petitions. Otherwise also, this Court is confining the case whether 248 posts were vacant on 1.8.2005 and further the petitioners have right of consideration against the same or not. No further issue has been allowed to be raised as the same stands concluded by 5 the orders reproduced hereinabove. 19. I am further of the view that the State Government in its affidavits has not made it clear that before giving the appointments to 248 persons in the year 1992 and further submitting the list of 906 candidates before the Supreme Court, the names of candidates who did not join, have been struck off from the list of 906 candidates. From the record of the writ petitions, it transpires that while calculating the total number of posts filled up, the State Government has counted 248 persons who did not join as well as 248 persons who have been given appointment subsequently against the aforesaid non-joining. From the record of the writ petitions, it transpires that while calculating the total number of posts filled up, the State Government has counted 248 persons who did not join as well as 248 persons who have been given appointment subsequently against the aforesaid non-joining. Thus the rights of the petitioners for consideration have 5 been seriously infringed by repetition of the names of the candidates who have not joined and further adding the names of the candidates who have been given appointment subsequent to the non-joining from the list of 906 candidates. Thus, I find that 248 posts of LDCs were vacant on 1.8.2005 and the petitioners have right to be considered against the said posts. 20. In the result, all the writ petitions are allowed and the respondent-State is directed to consider the case of the petitioners for appointment against 248 vacancies of LDCs which were vacant on 1.8.2005 in case less meritorious persons have been appointed either on the basis of district-wise list or state-wise list on the post of LDC. In case of appointment, the petitioners will not be entitled for the arrears of salary. However, the petitioners will be entitled for seniority.Writ petition allowed. *******