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2016 DIGILAW 390 (RAJ)

Pradeep Kumar Paliwal v. State of Rajasthan

2016-03-09

M.N.BHANDARI

body2016
Hon'ble BHANDARI, J.—By this writ petition, a prayer for appointment on the post of Teacher Gr. III has been made. It is pursuant to the advertisement No.1/1998 dated 13.6.1998 issued by Zila Parishad, Jaisalmer. 2. The issue regarding award of bonus marks on the ground of domicile i.e. domicile of Rajasthan, resident of the district and rural area was subject matter of challenge and, finally, it was decided by the Larger Bench of this court. It was challenged before the Apex Court and, therein, number of appeals were decided led by the case of Kailash Chand Sharma vs. State of Rajasthan, (2002) 6 SCC 571. 3. Learned counsel for petitioners submits that after the judgment in the case of Kailash Chand Sharma (supra), number of writ petitions were allowed by this court with the direction of appointment after eliminating bonus marks on the ground of residence. A reference of the judgment in the case of Neeraj Saxena vs. State of Rajasthan, SB Civil Writ Petition No.6829/2006, decided on 23.1.2009 has been given where similar prayer was allowed by this court. The petitioners also approached this court for the same relief, however, writ petition bearing CW 9941/2011 was disposed of by this court vide order dated 3.8.2011 with a direction to the respondents to consider and decide representation of the petitioners. The representation submitted by the petitioners has been rejected by the respondents vide order dated 22.8.2012 and 21.9.2012 at Annexure-5. 4. It is submitted that discrimination has been caused by the non-petitioners in giving appointment on the post of Teacher Gr. III to one Neeraj Saxena in pursuance to the judgment of the co-ordinate Bench while denying same relief to him. 5. I have considered the submissions and perused the record. 6. The petitioners earlier filed writ petition in the year 2011 and prayed for disposal of the representation. The representations made by the petitioners were decided in the year 2011 and 2012 but this writ petition has been filed with the delay of three years without proper explanation. 7. It is also a fact that appointment is sought based on recruitment and select list issued two decades back. As per the Rajasthan Panchayati Raj Rules, 1996, merit list expires within a period of one year from its issuance. Rule 274 of the Rules of 1996 is quoted hereunder for ready reference - “274. 7. It is also a fact that appointment is sought based on recruitment and select list issued two decades back. As per the Rajasthan Panchayati Raj Rules, 1996, merit list expires within a period of one year from its issuance. Rule 274 of the Rules of 1996 is quoted hereunder for ready reference - “274. Preparation of a merit list by the Committee.- (1) The Committee shall prepare a merit list of candidates considered suitable for appointment to each grade or category of posts in the district and shall on receipt of requisition from the Panchayat Samitis or Zila Parishads allot candidates from the list in the order in which their names occur in the list : Provided that :- (i) the number of candidates in the merit list prepared by the Committee shall not exceed on and a half time the number of vacancies actually available at the time such merit list is prepared; and (ii) the merit list of candidates so prepared shall remain valid for a period of one year in general and upto end of a academic session for teachers afte expiry of such period, it will be deemed to have lapsed. (2) The Panchayat Samitis or Zila Parishads shall take into consideration the requirement of Rule 261 while sending their requisitions to the Committee.” 8. The petitioner has failed to explain as to how the prayer can be granted after expiry of the panel. The Hon'ble Apex Court in the case of “State of UP & ors vs. Harish Chandra & ors”, 1996 IILLJ 627 SC has declined to grant the relief if the writ petition has been filed after expiry of the panel. 9. Apart from the aforesaid, even if the judgment of the Apex Court in the case of Kailash Chand Sharma (supra) is considered, relief has been confined to the petitioners who moved before the date given therein. The Apex Court dismissed one writ petition as it was filed after one year of the judgment by the High Court and issued directions, which are quoted hereunder for ready reference - “46. The Apex Court dismissed one writ petition as it was filed after one year of the judgment by the High Court and issued directions, which are quoted hereunder for ready reference - “46. Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the 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 18.11.1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct : 1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis-à-vis the candidates appointed on or after 18.11.99 or those 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 18.11.1999. 2. The appointments made upto 17.11.1999 need not be reopened and re-considered in the light of the law laid down in this judgment. 3. Writ Petition No. 542/2000 filed in this Court under Art. 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time.” 10. After the judgment aforesaid and confining the relief and dismissing the writ petition filed after 18.11.1999, this court entertained many writ petitions. It came in the notice of the Apex Court in subsequent litigation. The Chief Justice of this court was requested to constitute a Division Bench for disposal of those cases. In pursuance to it, Bench headed by the Chief Justice was constituted. The direction for it was given in the case of “Suresh Chandra Sharma vs. State of Rajasthan & ors”, Special Leave to Appeal (Civil) No.21377/2009, dated 2.4.2012. The Chief Justice of this court was requested to constitute a Division Bench for disposal of those cases. In pursuance to it, Bench headed by the Chief Justice was constituted. The direction for it was given in the case of “Suresh Chandra Sharma vs. State of Rajasthan & ors”, Special Leave to Appeal (Civil) No.21377/2009, dated 2.4.2012. The relevant paras of the order are also reproduced hereasunder - “In Kailash Chand Sharma vs. State of Rajasthan & Ors., (2002) 6 SCC 562 , this court had confined the grant of relief only to the writ petitioners before the High Court and directed that their claims should be considered afresh in the light of the judgment vis-à-vis the candidates appointed on or after 18.11.99 or those in the select list who are yet to be appointed. This court had further directed, that upon such consideration, if the writ petitioners are found to have superior merit determined after excluding the bonus marks of 10% and/or 5%, they shall be offered appointments, if necessary, by displacing the candidates appointed on or after 18.11.1999. The appointments made upto 17.11.1999 could not however be reopened and/or re-considered. The petitioner's case is that although the relief granted by this court was limited to the writ petition petitioners in the case mentioned above, a large number of persons were appointed as Asstt. Teachers, Grade-III, in different districts in schools run by the Zilla Parishad. In terms of additional documents produced by the petitioner, appointment of two persons, namely, Bishembar Dayal and one Jamuna Lal were shown to have been made, no matter, they were not petitioners in the writ petition referred to in KAILASH CHAND SHARMA (supra). In addition, our attention was drawn to an office order issued by the Collector, Barmer, whereunder 27 persons named in that order are appointed as Asstt. Teachers. A supplementary affidavit filed by the District Education Officer, District Barmer, shows that apart from Bishembar Dayal and Jamuna Lal, appointments of nearly one dozen persons were made, which appointments were later on cancelled because the authorities realized that the same had been made illegally as those appointed were not writ petitioners before the High Court. Teachers. A supplementary affidavit filed by the District Education Officer, District Barmer, shows that apart from Bishembar Dayal and Jamuna Lal, appointments of nearly one dozen persons were made, which appointments were later on cancelled because the authorities realized that the same had been made illegally as those appointed were not writ petitioners before the High Court. Learned counsel appearing for the respondent- State submits that while 12 persons in addition to Bishembar Dayal and Jamuna Lal were appointed, by the respondents, he was unable to state as to whether any inquiry was instituted by the State Government into all such illegal appointment. All that he could say was that those who were illegally appointed were sought to be removed against which action, the aggrieved persons had moved the High Court of Rajasthan and secured some interim orders in their favour. We regret to say that the picture, as to the total number of persons appointed contrary to the instructions issued by this court, as also the steps that were taken for their removal and the persons responsible for making such appointment is not very clear. We, accordingly, direct the Secretary to the Government of Rajasthan, Department concerned to hold an inquiry and submit a report as to the number of appointments made contrary to the order of this court in KAILASH CHAND SHARMA (supra) indicating the particulars of all such persons who have been appointed, the steps that have been taken by the Government of Rajasthan for removal of people so appointed as also action, if any, initiated against those who were responsible for making such appointments. Needful shall be done by the Secretary expeditiously but not later than two months from the date a copy of this order is received by him. An affidavit based on the findings recorded in the inquiry held shall be submitted along with relevant record to this court on or before 24.7.2012. Dr. Singhvi further submits that the Government had terminated the services of fifty persons, who had according to the State obtained orders of appointment as teachers upon a misrepresentation of the facts. He submits that the said employees have questioned the orders of termination before the High Court of Rajasthan in writ petitions at Jodhpur/Jaipur, which petitions are still pending and in which the High Court has passed various orders staying the operation of their termination. He submits that the said employees have questioned the orders of termination before the High Court of Rajasthan in writ petitions at Jodhpur/Jaipur, which petitions are still pending and in which the High Court has passed various orders staying the operation of their termination. He prays that the High Court be requested to take up the hearing of matters for an expeditious disposal, possibly by a Division Bench of that Court, so that, the entire controversy could be examined by this Court in the light of the said judgment. We see no reason to decline that prayer. We accordingly request the High Court of Rajasthan to bunch the writ petitions filed by the effected employees and to place the same for hearing before a Division Bench of that Court for an early disposal of the matter. A copy of this order shall be placed before the Hon'ble Chief Justice for constituting a Division Bench. Counsel appearing for the parties including some of the writ petitioners before the High Court, who have filed applications for intervention in this court assures us that they will co-operate for an early disposal of the matters by the High Court and complete the pleadings if not already completed. Learned counsel for the petitioner submits that the State of Rajasthan is making further appointments on the analogy of those already made and has drawn our attention to one such order which the petitioner undertakes to place on record with an affidavit with an advance copy to counsel opposite who may take instructions and file his response.” 11. As per the directions quoted above, the Division Bench was constituted. The Division Bench then dismissed bunch of writ petitions led by the case of “Jhamman Lal Gupta vs. State of Rajasthan & ors”, DB Civil Writ Petition No.3956/2005, decided on 21.9.2012. Relevant para of the judgment given therein are reproduced hereasunder for ready reference - “The writ petitions are being heard by us in view of the order dated 02.04.2012 passed by Hon'ble Supreme Court in Suresh Chandra Sharma vs. State of Rajasthan & Ors. (Petition for Special Leave to Appeal (Civil) No.21377/2009) and subsequent order dated 30.08.2012, in which, it was submitted that in view of decision of Hon'ble Supreme Court in Kailash Chand Sharma etc. etc. vs. State of Rajasthan and Ors. (Petition for Special Leave to Appeal (Civil) No.21377/2009) and subsequent order dated 30.08.2012, in which, it was submitted that in view of decision of Hon'ble Supreme Court in Kailash Chand Sharma etc. etc. vs. State of Rajasthan and Ors. ( (2002) 6 SCC 562 ), several persons have obtained appointment upon the misrepresentation of facts; the State Government had terminated services of fifty persons, who have obtained appointment by misrepresentation of facts. The orders of termination have been questioned by way of writ petitions before this Court at Principal Seat, Jodhpur and Jaipur Bench; the same are still pending consideration. This Court has passed various orders staying operation of termination of services of the petitioners. Thus, the Hon'ble Supreme Court has directed that the bunch of writ petitions filed by the effected employees be placed before the Division Bench for an early disposal of the matter. Consequently, the bunch of writ petitions have been listed today before us in compliance of the order passed by Hon'ble Supreme Court in Suresh Chandra Sharma's case. The question pertains to appointment of Teacher Grade-III for which advertisement was issued in the year 1998. The dispute arose with respect to assigning of the bonus marks. The matter was referred to full Bench of this Court in Deepak Kumar Suthar & Anr. vs. State of Rajasthan & Ors. (1999 (2) RLR 692 (FB)) and the Full Bench has held the provision of providing bonus marks to candidates belonging to same district for which posts are advertised to be unconstitutional. The matter travelled to the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Kailash Chand Sharma (supra) while considering the considering the competing claims in light of the acceptance of prospective overruling in principle, confined the relief only the petitioners who moved this Court and to make appointments on or after 18.11.1999. Relief was confined only to the petitioners who approached to the Hon'ble Supreme Court. The Hon'ble Supreme Court in Kailash Chand Sharma (supra) has laid down thus: “46. Relief was confined only to the petitioners who approached to the Hon'ble Supreme Court. The Hon'ble Supreme Court in Kailash Chand Sharma (supra) has laid down thus: “46. Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the 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 18.11.1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct : 1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis-à-vis the candidates appointed on or after 18.11.1999 or those 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 18.11.1999. 2. The appointments made upto 17.11.1999 need not be reopened and re-considered in the light of the law laid down in this judgment. 3. Writ Petition No. 542/2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court u/Art. 226 at an earlier point of time.” The Apex Court has further directed that appointment made up to 17.11.1999 need not be reopened and reconsidered. The Apex Court has dismissed the Writ Petition No.542/2000 filed under Article 32 of the Constitution of India as it was filed nearly one year after the judgment of this Court and the petitioner in the said petition was not given the relief. After decision in the case of Kailash Chand Sharma (supra), the Apex Court has also considered the same question in Girdhar Kumar Dadhich & Anr. vs. State of Rajasthan & Ors. ( (2009) 2 SCC 706 ), wherein the Apex Court has observed that the criteria of weightage given on the basis of place of residence in preparation of select list was declared invalid. vs. State of Rajasthan & Ors. ( (2009) 2 SCC 706 ), wherein the Apex Court has observed that the criteria of weightage given on the basis of place of residence in preparation of select list was declared invalid. The implication of prospective overruling resorted to saving appointments already made up to Full Bench decision dated 18.11.1999 of this Court. The Apex Court has also considered the question whether other candidates who were not petitioners before Full Bench could claim appointment on the strength of rulings of Apex Court and this Court. It has been further held that the select list would ordinarily remain valid for one year, extension cannot be presumed. The Apex Court has held that the candidates who had filed writ petitions in this Court after the said Full Bench decision, their claim was belated and this Court has rightly dismissed the writ petitions. In Girdhar Kumar Dadhich (supra), following discussion has been made: “13. The select list was prepared in the year 1998. In our opinion it would be difficult to issue any direction for appointment of the appellants herein at this stage. Select list was prepared keeping in view the rules as they existed. The said Rules might have been declared ultra vires but as indicated hereinbefore this Court in exercise of its jurisdiction under Article 142 of the Constitution of India though it fit to give a prospective effect thereto. It did so inter alia for the purpose of protecting the services of those teachers who had already been appointed and had been in service for a few years. Out of ten posts, eights teachers were appointed on or before 18th November, 1999 which was the cut off date. 14. Indisputably the merit list was modified in terms of the dicta laid down by this Court in Kailash Chand Sharma (supra). The question as to whether the fresh appointees who are, having regard to the said modification, required to be appointed on the premise that they are placed higher in the select list than the appellants or not, in our opinion, cannot be gone into by us for the first time since such a contention had never been raised before the High Court. The entire record of the matter, furthermore, are not before us. The entire record of the matter, furthermore, are not before us. In the instant case, petitioners earlier approached this Court in the year 2001; the case was lying in defect and the same was registered in the year 2002 as Civil Writ Petition No.572/2002. The matter has been considered earlier by Division Bench of this Court in State of Rajasthan & Ors. vs. Nemi Singh & Ors. (Civil Special Appeal (Writ) No.06730/2010 vide judgment dated 06.09.2011) wherein following decision has been rendered: “In the instant case, initially the writ application was preferred in the year 2002. The petitioners cannot be granted relief in view of the decision of the Apex Court in Kailash Chand Sharma (supra) particularly in view of the decision rendered by the Apex Court in para 46(3) in which in the petition of the year 2000 relief claimed was not granted on the ground that there was delay of one year in filing of the petition before the Apex Court and no reason whatsoever was shown by the petitioners for not approaching the High Court earlier under Article 226. Thus, delay of even a year in such matter was held to be enough to disentitle the petitioners to claim the relief as granted to the other petitioners. Decision was confined to the other petitioners. Thus relying upon the decision of the Apex Court of Kailash Chand Sharma(supra), no direction could have been issued by the Single Bench for consideration of the case as their cases were clearly ousted from the purview of consideration as per law laid down by their Lordships of the Apex Court in Kailash Chand Sharma (supra). In our considered opinion in the instant case, question is not of fixing of the cut-off date. Question is that when once the Apex Court has confined the relief to the petitioners whether it is open to this Court to extend the benefit to the other incumbents, who approached this Court by way of filing the writ petitions belatedly in the year 2002, 2003 or later on. We are of the considered opinion that delay alone is enough to throw away cases of petitioners. If the petitioners were serious, they should have approached this court earlier and not in the years 2002, 2003 and later on. We are of the considered opinion that delay alone is enough to throw away cases of petitioners. If the petitioners were serious, they should have approached this court earlier and not in the years 2002, 2003 and later on. Thus, the petitioners are not entitled for any relief in view of the dictum of the Apex Court in Kailash Chand Sharma (supra). We are not at all impressed by the submission raised by Ms.Naina Saraf, counsel appearing on behalf of the respondents. It is not open to this Court to violate the dictum of the Apex Court under the guise of implementation of the decision. The decisions relied upon by counsel appearing on behalf of the respondents are of no help to the respondents as they do not cover the aforesaid aspect.” 12. The facts given above shows that despite directions of the Apex Court confining the relief to the petitioners therein and even dismissal of the writ petition filed before the Apex Court itself, this writ petition has been filed by the petitioners not only after expiry of the merit list but contrary to the judgment of the Apex Court in the case of Kailash Chand Sharma (supra). 13. It would not be out of place to mention here that due to connivance of the department concerned, some appointments were given contrary to the judgment of the Apex Court and serious view has been taken by the Apex Court. Looking to the facts aforesaid, I am unable to grant relief to the petitioners, rather, writ petition itself is not maintainable not only in the light of the judgment of the Apex Court in the case of Kailash Chand Sharma (supra) but on expiry of the panel also. In the result, writ petition is dismissed.