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2022 DIGILAW 1104 (RAJ)

Mukana Ram v. State Of Rajasthan

2022-04-06

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The matter comes up on an application under Article 226(3) of the Constitution of India for vacation of the order dated 11.12.2019. 2. With the consent of counsel for the parties, the matter has been heard finally. 3. Brief facts of the case are as under: Vide order dated 14.06.2019, the applications were invited by the respondent-Department for the purpose of appointment of Teachers in Mahatma Gandhi Govt. School (English Medium). In pursuance to the said order, the petitioner also applied and after the result been declared, the interview for the said post was held on 27.06.2019. On the same date, result was declared and the petitioner was granted appointment vide order dated 02.07.2019 (Annexure-5). The petitioner was posted at Mahatma Gandhi Government School (English Medium), Station Road, Barmer. 4. After the said appointment, a representation was moved to the Department by one Mahendra Singh Rathore (respondent No. 5) alleging that although he stood at serial No. 1 in the merit list, he was not afforded appointment whereas the petitioner-Mukana Ram who stood at serial No. 12 in the merit list was appointed. On the said representation of respondent No. 5, an inquiry was called for by officer concerned. 5. On an inquiry being made, it was found that earlier inadvertently, respondent No. 5 Mahendra Singh Rathore was not afforded posting as it did not come into the knowledge of the respondent-authorities that the set up change of Mahendra Singh from Panchayati Raj Department to Education Department has already been made. In view of the mistake committed by the Department, the order of appointment of Mukana Ram was cancelled vide order darted 06.12.2019 and on the same date Mahendra Singh was appointed on the said post. 6. Against the cancellation order dated 06.12.2019, petitioner -Mukana Ram preferred the present writ petition before this Court in which an interim order dated 11.12.2019 was passed and the effect and operation of the order dated 06.12.2019 was stayed. Consequently, the petitioner -Mukana Ram continued to work on the said post and respondent No. 5 Mahendra Singh Rathore, who joined in pursuance to the order dated 06.12.2019 passed in his favour, also continued to work. 7. In the said circumstances, the present application under Article 226(3) of the Constitution of India has been filed by respondent No. 5 Mahendra Singh Rathore. 8. 7. In the said circumstances, the present application under Article 226(3) of the Constitution of India has been filed by respondent No. 5 Mahendra Singh Rathore. 8. It has been argued by the counsel for the petitioner that the selection and the posting of the petitioner on the said post was totally valid. So far as respondent No. 5 is concerned, his set up change from Panchayati Raj Department to Secondary Education has never been made and therefore, in terms of the condition of the present recruitment process, respondent No. 5 was even otherwise not eligible. Counsel referred to the condition for appointment in the Mahatma Gandhi Govt. School (English Medium) which reads as under: vk'kkFkhZ dh fu;qfDr f'k{kk foHkkx esa gh gqbZ gks vFkok iapk;rh jkt foHkkx ea izFke fu;qfDr dh fLFkfr esa vk'kkFkhZ dh jktLFkku f'k{kk v/khuLFk lsok fu;e&1971 ds fu;e 6Mh ds rgr foHkkx esa p;u gks pqdk gksA 9. Counsel argued that by perusal of the documents placed on record, it is clear that respondent No. 5 is working with the Panchayati Raj Department till date and the salary is also being paid by the same, therefore, it cannot be presumed that the set up of respondent No. 5 has ever been changed. 10. The second contention raised by the counsel for the petitioner is that his order of cancellation was passed during the currency of the session whereas his appointment was for the complete session. Thirdly, counsel argued that no opportunity of hearing was given to him before passing of the cancellation order dated 06.12.2019. 11. Per contra, counsel for respondent No. 5 submitted that his set up from Panchayati Raj Department to Education Department has already taken place vide order dated 16.06.2015. The copy has been placed on record as Annexure-R/4. Further the counsel submitted that he stood first in the merit list and therefore, there was no reason for denial of his appointment or posting as the Teacher in the Mahatma Gandhi (English Medium) School. It has been submitted by the counsel that the proposition as tried to be argued by the counsel for the petitioner is totally a misleading one. The condition for appointment for the post in question did not talk of any change of set up to Secondary Education Department. It required only a change of set up from Panchayati Raj Department to the Education Department. The condition for appointment for the post in question did not talk of any change of set up to Secondary Education Department. It required only a change of set up from Panchayati Raj Department to the Education Department. As is clear on record, the same did not specify any particular branch of the Education Department. 12. Counsel for the State has argued that after a representation being filed by respondent No. 5, an inquiry was made by the Department and it was found that the order of the change of set up in favour of respondent No. 5 had been missed out by the Department and therefore, inadvertently he was not accorded appointment. The said mistake of the Department was rectified vide order 02.07.2019 and the selection of Mukta Ram was cancelled and that of Mahendra Singh was ordered. In pursuance to the said order dated 02.07.2019, the order dated 06.12.2019 was passed by the concerned officer. Therefore, it is submitted that the order dated 06.12.2019 is perfectly valid. 13. Heard learned counsel for the parties and perused the material available on record. 14. A bare perusal of the order dated 02.07.2019 whereby the condition for posting in the Mahatma Gandhi English Medium School was clarified reveals that: (i) the candidate ought to have been appointed initially by the Education Department; or (ii) those not appointed by the Education Department but whose first appointment is in the Panchayati Raj Department, their set up change in terms of Rule 6D of Rules of 1971 ought to have been made in the Education Department. 15. A bare perusal of the above condition makes it clear that it provided for a set up change for Panchayati Raj Department to Education Department and not Panchayati Raj Department to Secondary Education Department as tried to be posed by the counsel for the petitioner. 16. It is clear on record that the set up change of respondent No. 5 had been made from Panchayati Raj Department to Education Department and therefore he was eligible to be posted in English Medium School. Consequently, the only question remains is who would be given preference for posting- the person higher in merit or the person lower in merit, if both fulfill the other eligibility criteria. There can be no two opinions on the issue. Consequently, the only question remains is who would be given preference for posting- the person higher in merit or the person lower in merit, if both fulfill the other eligibility criteria. There can be no two opinions on the issue. Respondent No. 5 being the first in the merit list deserves to be selected and posted and the petitioner who stands at No. 12 cannot be held to be entitled to be posted. 17. Therefore in view of the above, the impugned order dated 06.12.2019 whereby the order of appointment of the petitioner has been cancelled is held to be valid and consequently, the writ petition being devoid of merit is dismissed. 18. All pending applications also stand disposed of.