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2017 DIGILAW 938 (RAJ)

Jintendra Kumar Sharma v. State of Rajasthan

2017-04-10

NIRMALJIT KAUR

body2017
JUDGMENT : NIRMALJIT KAUR, J. The petitioner has filed the present writ petition seeking quashing of the order of termination dated 02.11.2012 with the further prayer to reinstate him in service with all consequential benefits. 2. The facts necessary to be noticed for adjudication of this writ petition are that while making appointments to the post of Teacher Grade-III in pursuance to the advertisement issued in the year 1998, the State of Rajasthan provided certain guidelines for determination of merit. As per the said guidelines, bonus marks were provided to the persons belonging to the rural areas. The same was challenged by way of writ petition before this Court. The issue was referred to the Full Bench and the same came to be decided in the case of Deepak Kumar Suthar v. State of Rajasthan reported in 2000 (1) WLC (Raj.) 1 : RLW 2000(1) Raj. 51. The Full Bench of this Court held that the grant of weight-age in public employment on the basis of residence is discriminatory. The said judgment was challenged before the Apex Court by way of S.L.P. in the case of Kailash Chand Sharma v. State of Rajasthan reported in (2002) 6 SCC 562 . The Apex Court affirmed the law laid down in the case of Deepak Kumar Suthar (supra). While upholding the view of the Full Bench, the Apex Court issued the following directions:— “1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis-a-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 reconsidered in the light of the law laid down in this judgment. 3. Writ Petition No. 542 of 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 under Article 226 at an earlier point of time.” 3. 3. Writ Petition No. 542 of 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 under Article 226 at an earlier point of time.” 3. The petitioner in the present case applied for the said post and submitted his application form from Zila Parishad, Jaisalmer. He also submitted his representation on 24.04.2003. In pursuance to the same, he was appointed on the post of Teacher Grade-III vide Order dated 17.09.2003. However, he was issued the show cause notice as to why he should not be discontinued from service as he has concealed the fact that an application for intervention filed by him in the proceedings before the Apex Court in the case of Kailash Chand Sharma (supra) was not accepted. The petitioner challenged the show cause notice by way of Writ Petition No. 3386/2005 which was dismissed by the Division Bench of this Court vide Order and Judgment dated 26.09.2012 passed in D.B. Civil Writ Petition No. 3080/2011 (Rajveer Singh v. state of Rajasthan) and other connected petitions as under:— “Accordingly, the writ petitions are dismissed. Stay applications are also dismissed. However, we find that some serious kind of fraud has been played and there is misrepresentation of facts, let the State Government consider to initiate proceedings for criminal prosecution of the petitioner who committed fraud and misrepresentation of facts in accordance with law. A copy of this order be placed in all the files.” 4. Thereafter, the petitioner replied to the show cause notice. However, after considering the same, the services of the petitioner were dispensed with vide impugned Order dated 02.11.2012 by holding that his application as intervener before the Apex Court was not accepted and this fact was concealed by him and thus, he has got his appointment by misrepresentation. 5. The impugned order terminating the services of the petitioner was passed in the year 2012. However, the petitioner has filed the present writ petition now in the year 2017 on the basis of the Order and Judgment dated 25.07.2016 passed by the Division Bench of this Court in the case of Om Prakash Pathak v. State of Rajasthan (D.B. Civil Writ Petition No. 3446/2011). However, the petitioner has filed the present writ petition now in the year 2017 on the basis of the Order and Judgment dated 25.07.2016 passed by the Division Bench of this Court in the case of Om Prakash Pathak v. State of Rajasthan (D.B. Civil Writ Petition No. 3446/2011). It is contended that the case of the petitioner is identical as the petitioner Om Prakash Pathak in the said case too was an intervener before the Apex Court and the Apex Court had not accepted his application. It is further stated that Apex Court had directed that the criminal prosecution be initiated against the persons who got appointment by misrepresentation. But no such criminal case had been registered against him till date. Thus, he is being punished for no reason and therefore, his case is squarely covered by the judgment rendered in the case of Om Prakash Pathak (supra). 6. A perusal of the judgment rendered in the case of Om Prakash Pathak (supra) shows that the termination order in the said case was passed in 2011. The petitioner therein immediately filed the writ petition in the year 2011 itself and the order of termination was stayed by an interim direction passed in the said writ petition. Thus, the petitioner in that case continued in service and was even granted promotion during the said period on 30.09.2013. Whereas, the order of termination in the case of present petitioner was passed in 2012. The petitioner choose not to approach this Court uptil 2017. No explanation for the delay in approaching this Court is forthcoming. On a specific query and after arguing for some time, learned counsel for the petitioner disclosed that Civil Appeal No. 4334-4337 of 2014 (arising out of SLP (C) Nos. 35440-35443 of 2012) filed by him and he was awaiting the outcome of the same before filing the present writ petition. The said appeal was admittedly disposed of vide Order and Judgment dated 01.04.2014 along with the main lead case of Manmohan Sharma v. State of Rajasthan (Civil Appeal No. 4294 of 2014) as under:— “27. The appellants had been appointed and have served for nearly a decade but there are allegations that such appointments were obtained by mis-representation of facts and fraudulently. We do not consider it necessary to go into that aspect as we are informed that criminal cases have already been registered against appellants. The appellants had been appointed and have served for nearly a decade but there are allegations that such appointments were obtained by mis-representation of facts and fraudulently. We do not consider it necessary to go into that aspect as we are informed that criminal cases have already been registered against appellants. Any observation made by us whether or not the appointments were obtained by mis-representation or by playing fraud upon the authorities concerned is bound to cause serious prejudice to the appellants. All that we need say is that in the facts and circumstances of the case we do not consider the appellants to be entitled to the relief of regularization of their services as prayed for by them. Having said that we cannot ignore the fact that the appellants will be left without any alternate avenues of employment at this stage of their lives. Subject to any finding that may be recorded by a competent Court, as regards the alleged fraudulent nature of the appointments secured by the appellants, we direct that such of the appellants as were appointed as teachers and as have now been terminated may be given a onetime concession of relaxation of the upper age limit and considered in the next selection process in relaxation of rules regarding such age limit prescribed for appointment as teachers. We make it clear that the above shall be a one-time relaxation for the appellants to try their luck in the next selection process. The appellants or such of them as wish to avail of this concession shall file an undertaking before the appointing authority concerned to the effect that the fresh appointment if any given to them pursuant to the age relaxation shall stand terminated in case they are found guilty and sentenced to imprisonment in the criminal case registered against them for obtaining a fraudulent appointment. Beyond that we do not consider the appellants to be entitled to any relief from this Court. The appeals are with the above directions disposed of leaving the parties to bear their own costs.” 7. Thus, from the above, it is evident that the order of termination was passed on 02.11.2012 and the appeal of the petitioner before the Apex Court was disposed of in the above terms on 01.04.2014. The appeals are with the above directions disposed of leaving the parties to bear their own costs.” 7. Thus, from the above, it is evident that the order of termination was passed on 02.11.2012 and the appeal of the petitioner before the Apex Court was disposed of in the above terms on 01.04.2014. Therefore, the only relief, if at all, to which the petitioner is entitled is as per the Apex Court to grant him relaxation in upper age limit in the next selection process. The argument that the order of termination was never challenged does not help. As observed above, the petitioner has challenged the order of termination before this Court after almost five years. Even, after the judgment passed by the Apex Court, the petitioner has filed the present writ petition after 03 years of the same. Moreover, while filing the present writ petition, except for a passing reference that he had approached the Hon'ble Supreme Court, the petitioner did not disclose that the SLP filed by him was disposed of with the above observations. Neither the number of SLP nor the detail of the order has been mentioned. It was only when the Court persisted to explain the delay, the above judgment was brought to the notice of this Court. Therefore, it is evident that the petitioner awaited his fate till the judgment rendered by the Division Bench of this Court in the case of Om Prakash Pathak (supra) 8. It is well settled proposition of law that a person sleeping over his rights cannot be allowed to raise the dispute or challenge the validity of the order after the favourable decision is obtained by some other litigant. In similar set of circumstances, learned Single Bench of Madras High Court in the case of S. Ahmed v. The State of Tamil Nadu (W.P. (MD) No. 10547 of 2011) decided on 16.09.2011 while relying on the judgment rendered by the Apex Court in the case of Rup Diamonds v. Union of India reported in (1989) 2 SCC 356 while dealing with the belated claim observed as under:— “14. While dealing with a belated claim and filing of a Writ Petition on the basis of the order obtained in some other Writ Petitions, the Supreme Court in Rup Diamonds v. Union of India, reported in (1989) 2 SCC 356 , has observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, Their Lordships held as follows: “Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after a year after the first rejection.” In view of the above facts and circumstances, the present writ petition does not warrant any interference and same is hereby dismissed. Writ petition dismissed.