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2018 DIGILAW 1227 (RAJ)

Vimla Kumari Malav v. State of Rajasthan

2018-05-09

DINESH CHANDRA SOMANI, M.N.BHANDARI

body2018
JUDGMENT M.N. Bhandari, J. By this writ petition, a challenge is made to the order dated 27th October, 2017, passed by the respondents to cancel the appointment given to the petitioner on the post of Civil Judge (Junior Division) and consequently, to remove her from service. Brief Facts of The Case: The petitioner applied for the post of Civil Judge & Judicial Magistrate in pursuance of the advertisement issued for Rajasthan Judicial Service Examination, 2013. The petitioner was selected thus was appointed in service vide order dated 21st May, 2015. The petitioner was sent for training required for the aforesaid post. 2. It is submitted that after appointment of the petitioner, a writ petition was filed by one Venus Choudhary to challenge action of the official respondents in rounding off marks obtained by the petitioner for determination of merit as well as for giving appointment. The petitioner obtained 160.5 marks in the selection. It was rounded off to 161 marks. Many candidates had obtained 161 marks in the category of Women (OBC) however, petitioner, being elder in age, was given appointment. 3. The writ petition bearing No. 5677/2015, filed before the Division Bench, Principal Seat at Jodhpur was allowed by the order dated 22nd January, 2016. The rounding off marks was held to be illegal and finding Venus Choudhary to be higher in merit, declared her entitled for the appointment. At the same time, the Division Bench protected appointment of the petitioner as she was sent for training during the intervening period. In view of the above, there was no occasion for the respondents to cancel appointment of the petitioner. It is more so when in a review petition preferred by the respondents, it was found that four vacancies were existing in the cadre of Civil Judge thus petitioner can be adjusted against those vacancies, thereby, review petition was also dismissed. 4. The respondents thereupon approached the Supreme Court. It refused to cause interference in the judgment passed by the Division Bench, Principal Seat at Jodhpur though the SLP was decided with certain observations. In view of the refusal to interfere in the judgment passed by the Division Bench, it became final and, accordingly, there was no reason for the respondents to cancel the appointment given to the petitioner. The appointment of the petitioner was saved by the Division Bench in the case of Venus Choudhary (supra). 5. In view of the refusal to interfere in the judgment passed by the Division Bench, it became final and, accordingly, there was no reason for the respondents to cancel the appointment given to the petitioner. The appointment of the petitioner was saved by the Division Bench in the case of Venus Choudhary (supra). 5. Learned counsel further submits that petitioner even applied for selection subsequently but due to overage or for want of permission to appear, she could not avail the opportunity to get selected again thus her right of consideration was also affected. On the aforesaid ground and taking into consideration equity, the petitioner is entitled to continue in service and, accordingly, impugned order may be set aside. 6. Shri AK Sharma, Senior Counsel assisted by Mr. VK Sharma, has opposed the writ petition. He submits that all the relevant facts have not been given by the petitioner, which are otherwise necessary. Pursuant to the selection of the year 2013, merit list was drawn. So far as petitioner and Venus Choudhary are concerned, they were considered against the posts meant for OBC (Female). After litigation by Venus Choudhary and subsequent directions of the Supreme Court, the appointment against the post meant for OBC (Female) was given to a meritorious candidate namely, Sonia Verma. It was not given even to Venus Choudhary as no vacancy was existing to accommodate her and the petitioner, who were lower in merit. This fact was brought to the notice of the Apex Court in the appeal where an interim order was passed. It was clarified that appointment should be given in order of merit and not in ignorance of it. The final order thereupon was passed denying interference in the order passed by the Division Bench in the case of Venus Choudhary while keeping it open for an appropriate decision by the respondents. Pursuant to the order of the Apex Court in the case of Venus Choudhary, the High Court undertook an exercise for appointment of a meritorious candidate and it was given to Sonia Verma. 7. There were other candidates having equivalent marks to Sonia Verma but could not be given appointment for want of vacancies and those candidates were having higher marks to the petitioner. Taking into consideration aforesaid, impugned order was passed to cancel the appointment of the petitioner as it was de hors the Rules and merit. 7. There were other candidates having equivalent marks to Sonia Verma but could not be given appointment for want of vacancies and those candidates were having higher marks to the petitioner. Taking into consideration aforesaid, impugned order was passed to cancel the appointment of the petitioner as it was de hors the Rules and merit. The respondents have not given appointment to even Venus Choudhary despite a judgment in her favour by the Division Bench. It is looking to the fact that she had also scored 161 marks but against one vacancy, Sonia Verma, having scored same marks could be given appointment as she was elder in age. The meritorious candidates above the petitioner namely, Venus Choudhary and Poonam Sen could not be given appointment. Taking into consideration the aforesaid, the appointment of the petitioner was cancelled. In view of the above, no interference in the impugned order may be made. 8. We have considered rival submissions made by learned counsel for the parties and perused the record. 9. The facts available on record show that after selection in the Civil Judge Cadre, the petitioner was given appointment vide order dated 21st May, 2015. The appointment of the petitioner was challenged by Venus Choudhary by maintaining a writ petition bearing No. 5677/2015 before the Division Bench, Principal Seat at Jodhpur. It was decided vide judgment dated 22nd January, 2016. 10. The Division Bench found rounding off marks from 160.5 to 161 to be illegal. The candidates having 161 marks above the petitioner were existing. The Division Bench, accordingly, found illegality in the action of the official respondents but while giving direction for consideration of the case of Venus Choudhary, having scored 161 marks, the direction to save appointment of the petitioner was also given. The Special Leave to Appeal was filed after dismissal of review petition and therein, the Apex Court passed following interim order on 1st March, 2017, which is quoted hereunder for ready reference: "Heard. Leave granted in special leave petitions. We make it clear that the person with higher marks will be given appointment and not the persons with lesser marks. Earlier interim orders passed by this Court on 11.07.2016 and 08.08.2016 are modified accordingly. This order will be subject to further orders of this court. Hearing expedited. The matters may be listed during Summer Vacation preferably in first part of the vacation." 11. Earlier interim orders passed by this Court on 11.07.2016 and 08.08.2016 are modified accordingly. This order will be subject to further orders of this court. Hearing expedited. The matters may be listed during Summer Vacation preferably in first part of the vacation." 11. The order aforesaid was interim in nature but makes it clear that persons with higher marks would be given appointment and not a person with lesser marks. As a consequence of which, the respondents were required to arrange merit followed by appointments in order of merit. 12. The Apex Court thereupon decided the pending appeals vide order dated 18th September, 2017 in the following terms: "Civil Appeal No. 3598-3599 OF 2017 Heard learned counsel for the parties. Since the direction in the impugned order is to consider the matter, we do not find any ground to interfere with the impugned order. However, it is clarified that the impugned order may not be read as a direction to take a particular decision. The appellant (s) will be at liberty to take an appropriate decision in the matter having regard to the fact situation before it. The appeals are, accordingly, disposed of. Civil Appeal Nos. 5037 & 5323 of 2016 Heard learned counsel for the parties. We do not find any ground to interfere with the impugned order. The appeals are, accordingly, dismissed." 13. The appeals preferred by the respondents were dismissed without causing interference in the order with the clarification that order of the Division Bench may not be read as a direction to take a particular decision, rather, the respondents were given liberty to take an appropriate decision in the matter having regard to fact situation before it. The fact situation given above shows that petitioner was not falling in the merit against the post meant for OBC (Female) and there was only one post vacant and not three posts, as mentioned by the Division Bench in the case of Venus Choudhary (supra). The other posts were of open category where more than 120 candidates above the petitioner were existing. 14. In view of the above and taking into consideration the interim order and final order of the Apex Court, the respondents passed the impugned order to cancel appointment of the petitioner. It can be said to be in consonance to the interim order passed by the Apex Court followed by final order. 14. In view of the above and taking into consideration the interim order and final order of the Apex Court, the respondents passed the impugned order to cancel appointment of the petitioner. It can be said to be in consonance to the interim order passed by the Apex Court followed by final order. The Apex Court, while refusing to cause interference in the order passed by the Division Bench in the case of Venus Choudhary (supra), clarified that aforesaid order would not be read as a direction to take a particular decision, rather, liberty was given to the respondents to take an appropriate decision in the fact situation. 15. Accordingly, the respondents assessed merit position of the petitioner vis-a-vis others and found that neither petitioner nor Venus Choudhary are entitled to get appointment. It was realised that Division Bench on the earlier occasion was not correctly informed about vacant posts. In fact, three or four posts were not of the category to which petitioner belongs i.e. OBC (Female), rather, it was only one post and remaining were of the open category thus could not have been given in ignorance of merit of the candidates, that too, number of such candidates are more than 120 above the petitioner. 16. It is stated that petitioner was not given permission to appear in the subsequent selection for the post of Civil Judge. According to the respondents, no permission was ever sought for appearance in the selection on the post of Civil Judge but was for Legal Assistant. In view of the above, even aforesaid ground cannot be taken to invoke equity in favour of the petitioner. 17. In view of the above, we do not find any illegality in the impugned order passed by the respondents cancelling appointment of the petitioner in the fact situation. Accordingly, we do not find any merit in the writ petition. It is, accordingly, dismissed.