Kamlesh Siyag v. Sarvepalli Radhakrishnan Rajasthan Ayurved University
2020-08-11
RAMESHWAR VYAS, SANGEET LODHA
body2020
DigiLaw.ai
JUDGMENT Sangeet Lodha, J. - This intra court appeal is directed against order dated 5.5.18 passed by the learned Single Judge, whereby the writ petition preferred by the appellant seeking directions to the respondents to accord him appointment on the post of Lower Division Clerk (LDC) pursuant to advertisement dated 6.5.14 issued by the Dr.Sarvapalli Radhakrishnan Rajasthan Ayurved University, Jodhpur ('the University'), has been dismissed. The appellant has also assailed legality of order dated 25.9.19 passed by the learned Single Judge, dismissing the review petition preferred seeking review of the said order dated 5.5.18. 2. The appeal is reported to be barred by limitation for 730 days. It is accompanied by an application under Section 5 of Limitation Act, seeking condonation of delay. 3. Precisely, the explanation furnished by the appellant for inordinate delay in filing the appeal set out in para 3 of the application reads as under: "3. That in the present case, it is clear that the Appellant has made their all efforts to prefer the present appeal in within the prescribed limitation before this Hon'ble Court but the present appeal could not be filed within the prescribed time and there is sufficient, bonafide and justified reasons for delay to prefer the above said appeal. The delay to prefer the present appeal was not intentionally and only due to lack of communication as well as sudden illness of the Appellant, thus, the delay to prefer the present appeal may be condoned due to bonafide reasons. Only on a technical ground of limitation, any party should not be deceived from justice. The procedural law is handmade justice and it cannot debar the parties to get the justice. Meaning thereby, the procedure could only substantive for justice and could not be obstructive. If the delay to prefer the present appeal would not be condoned then the present appeal could not be heard on merits and the appellant would be remain unheard. As against this, if the delay to prefer the present appeal would be condoned then Respondents would not be suffered by any prejudice caused. In these circumstances, in the present case, it is very necessary to condone the delay to prefer the present appeal of the appellant may be heard on merits to resolve the very important legal controversy between the parties." 4.
In these circumstances, in the present case, it is very necessary to condone the delay to prefer the present appeal of the appellant may be heard on merits to resolve the very important legal controversy between the parties." 4. It is noticed that after dismissal of the writ petition by the learned Single Judge vide order dated 5.5.18, the appellant preferred yet another writ petition being S.B.C.Writ Petition No. 15211/18 before the learned Single Judge of this Court seeking directions to grant him appointment on the post of LDC in light of the order dated 5.11.15 passed in S.B.C.Writ Petitions Nos.11925/15 and 7322/15, which stood dismissed by the learned Single Judge vide order dated 25.10.18 in limine. Thereafter, the appellant filed review petition No.12/19 seeking review of the order dated 5.5.18 passed by the learned Single Judge in S.B.C.Writ Petition No.3649/17, which stands dismissed by the order impugned dated 25.9.19, which was also barred by limitation for 295 days. The appellant was well aware about all the proceedings taken as aforesaid and thus, the explanation set out by the appellant in the application seeking condonation of inordinate delay in terms that on account of lack of communication/sudden illness, the appeal could not be filed within limitation, is apparently false to his knowledge. In any case, the explanation furnished cannot be considered to be bonafide so as to condone inordinate delay of 730 days and thus, the application seeking condonation of delay deserves to be dismissed and consequently, the appeal deserves to be dismissed as barred by limitation. However, in the interest of justice, we have examined the matter on merits as well. 5. Admittedly, vide advertisement dated 6.5.14 issued by the Registrar of the respondent University inter alia 14 posts of LDC were advertised. The appellant applied for appointment to the post as candidate belonging to OBC category. After completion of the selection process, select list was declared on 9.7.15 and the selected candidates were accorded appointment vide order dated 10.7.15. The appellant assailed the select list by way of writ petition No.3649/17 filed on 22.3.17.
The appellant applied for appointment to the post as candidate belonging to OBC category. After completion of the selection process, select list was declared on 9.7.15 and the selected candidates were accorded appointment vide order dated 10.7.15. The appellant assailed the select list by way of writ petition No.3649/17 filed on 22.3.17. The appellant was at serial No.21 in the merit list and it was not the case set out by him in the petition that any person who had obtained lesser marks than him, was accorded appointment in the category of OBC and thus, the writ petition preferred by the appellant was dismissed by the learned Single Judge by the order impugned. 6. If aggrieved, it was open for the appellant to assail the legality of order dated 5.5.18 passed by the learned Single Judge by way of intra court appeal with utmost expedition, however, instead of assailing the legality of the order dated 5.5.18, the appellant preferred yet another writ petition being No.15211/18, which stood dismissed by the learned Single Judge vide order dated 25.10.18 with the observations as under: "A bare perusal of the order dated 5/5/2018 passed by this Court Court in S.B.Civil Writ Petition No.3649/2017 filed by the petitioner indicates that this Court after thoroughly considering the case of the petitioner came to the conclusion that no interference is called for in the writ petition and accordingly dismissed the same. Once the writ petition filed by the petitioner questioning the recruitment pursuant to the advertisement dated 6/5/2014 has been rejected by a reasoned order, there apparently is no occasion for the petitioner now to file a fresh writ petition seeking the same relief as was sought in the earlier writ petition. If the petitioner is aggrieved by the order dated 5/5/2018 passed by this Court, the only remedy lies in filing appeal against the said order and a fresh writ petition for the same cause, may be on different ground, is not maintainable.
If the petitioner is aggrieved by the order dated 5/5/2018 passed by this Court, the only remedy lies in filing appeal against the said order and a fresh writ petition for the same cause, may be on different ground, is not maintainable. The plea raised that as in the writ petitions filed by Kailash Solanki and Ashok Dhanadia, the counsel appearing for the University made a statement that the University was ready to accommodate the petitioners therein on the vacant posts and passed orders in this regard, whereupon the writ petitions were decided on 27/11/2015, cannot be a reason for grant of relief on the assumption that the case of the petitioner is similar to that of Kailash Solanki and Ashok Dhanadia. It would be seen that the orders passed in the case of Kailash Solanki and Ashok Dhanadia were available at the time when the writ petition was filed by the petitioner/decided by this Court on 5/5/2018 but apparently no submissions in this regard were made. It would also be seen that while Kailash Solanki and Ashok Dhanadia had filed the writ petition in the year 2015 and their cases came to be decided in the year 2015 itself and though the petitioner filed writ petition in the year 2017, which was decided in 2018, no plea based on the decision/treatment in the case of said two persons was raised before this Court and, therefore, fresh writ petition seeking to raise the issue, which was available at the time of filing of the earlier writ petition cannot be countenanced. A feeble submissions was made by the learned counsel for the petitioner that in case notices are issued by this Court, the counsel for the respondents would accept the plea raised by the petitioner in the present writ petition. The submission made is preposterous inasmuch as the agency of this Court cannot be used by the petitioner through somebody representing the University so as to invent a recruitment process independent of the process which was initiated by a regular advertisement, which has already come to an end." 7. It is only at this stage that the appellant preferred review petition seeking review of order dated 5.5.18 passed by the learned Single Judge. 8.
It is only at this stage that the appellant preferred review petition seeking review of order dated 5.5.18 passed by the learned Single Judge. 8. It is noticed that Kailash Solanki and Ashok Dhanadia qua whom the appellant is claiming parity had filed the petition in the year 2015, which was decided in the year 2015 itself. Nothing prevented the appellant from setting out the plea in the writ petition filed based on the decision of this Court in Kailash Solanki and Ashok Dhanadia's case (supra). Moreover, it is not disputed that the petition filed by Kailash Solanki and Ashok Dhanadia were disposed of as having become infructuous on the basis of the stand taken by the respondent University that they have been accorded appointment w.e.f. 16.11.15 without salary for the intervening period and thus, their entitlement for appointment to the post was not adjudicated by this Court. In any case, against the 14 vacancies advertised, the appointments were made by the respondent University as per the select list. Nobody can claim appointment on the post beyond the vacancies advertised as a matter of right. Moreover, in the instant case, it is not the case set out by the appellant that any person having obtained lesser marks than him, is accorded appointment on the post of LDC by the respondent University pursuant to the selection undertaken vide advertisement dated 6.5.14. The appellant has not been able to demonstrate as to how he is similarly situated qua Kailash Solanki and Ashok Dhanadia. Obviously, this Court cannot proceed with the assumption that appellant is similarly situated qua Kailash Solanki and Ashok Dhanadia. The future vacancies in the cadre have to be filled in by initiating fresh selection process in accordance with the relevant recruitment rules. The selection process already concluded long back cannot be reopened at this stage. None of the selected candidate having obtained lesser marks than the appellant if any, accorded appointment, is impleaded party to the proceedings and therefore, even otherwise, no relief can be granted to the appellant. 9. Thus, viewed from any angle, the order impugned passed by the learned Single Judge does not warrant any interference by us in exercise of intra court appeal jurisdiction. 10. In the result, the application under Section 5 of Limitation Act as also the intra court appeal are dismissed.