JUDGMENT : Anand Sharma, J. 1. By way of filing this writ petition, petitioner has prayed for direction against the respondents to give him appointment on the post of Junior Compounder/Nurse pursuant to advertisement dated 24.04.1999, as he has secured more marks than the last selected candidate (respondent No.3) in Scheduled Caste category and his name be placed at suitable place in final select list dated 19.03.2002 according to marks secured by him and all the consequential benefits may be granted to him. 2. Facts of the case in brief are that the petitioner is a member of Scheduled Caste. He took admission in Diploma in Ayurveda Nurse/Compounder training, wherein he appeared in part-I examination, result whereof was declared on 20.11.1995, however, as per result, the petitioner could not clear one paper in the examination. Hence, the petitioner appeared in the said paper again in supplementary examination and as per result dated 04.11.1996, he qualified the said paper. Later on, on completion of entire course, mark-sheet was issued to him on 12.09.1997 where he obtained 55.9% marks in the aforesaid diploma. Thereafter, he was required to undergo internship and he completed his internship on 16.04.1998. 3. Learned counsel for the petitioner submitted that one notification dated 24.04.1999 was issued by the office of the Director, Ayurveda Department, Ajmer, whereby application against 200 vacancies of Junior Compounder/Nurse were advertised and applications were invited from the eligible candidates. It is submitted that the merit was to be prepared on the basis of marks obtained in diploma in Ayurved Nurse/Compounder training and the recruitment was to be conducted in accordance with the proceedings contemplated in the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Subordinate Service Rules, 1966. The last date for filing the application was 31.05.1999. 4. Learned counsel for the petitioner further submitted that thus, before the date of issuance of advertisement dated 24.04.1999, the petitioner was possessing the qualification, hence, he submitted his application under the Scheduled Caste category. 5. Thereafter, the merit list was prepared in accordance with the marks obtained in the aforesaid diploma, category wise and at the relevant time cut-off marks in the aforesaid recruitment process for the candidates appearing in Scheduled Caste category were declared as 50.77%. As the petitioner was possessing 55.9%, therefore, he was having legitimate claim of appointment under the said category. Thereafter, the merit list was prepared in accordance with the marks obtained in the aforesaid diploma, category wise and at the relevant time cut-off marks in the aforesaid recruitment process for the candidates appearing in Scheduled Caste category were declared as 50.77%. As the petitioner was possessing 55.9%, therefore, he was having legitimate claim of appointment under the said category. However, one order dated 19.03.2002 was issued by the respondent No.2, whereby appointment was given to as many as 197 candidates out of which 29 candidates from SC category were appointed. Last candidate (respondent No.3) was having 50.77% marks, yet appointment was not offered to the petitioner. 6. It is submitted that when the petitioner enquired into the reasons for not appointing him, it was submitted that the criteria for taking the marks into consideration for the purpose of preparing the merit list was changed and it was decided that for the purpose of preparation of merit list, in the cases where the candidates, who could not qualify the examination of diploma course in first attempt, the marks obtained by them in subsequent attempt shall not be taken into account and merit shall be prepared by taking the minimum marks into consideration. Since, the petitioner was also falling in such category where he could not clear all the papers in one single attempt, therefore, he was excluded from the consideration and all the candidates who were appointed vide order dated 19.03.2002 were such candidates, who qualified the diploma examination in one single attempt and the merit list was prepared after including only such candidates. The candidates, who were appointed vide order dated 19.03.2002 also joined pursuant to the appointment order, despite having lesser marks than the petitioner. 7. Thereafter, the matter was re-examined at the department level and it was decided that exclusion of the candidates under the pretext that they could not qualify the different papers of diploma examination in one attempt or those who passed with grace marks, was not proper, hence, directions were given to re-frame the merit list after including all such candidates vide letter dated 01.04.2002. Thereafter, as per directions merit list was re-framed by the respondent No.2 and on re-framing the merit list the cut-off marks were also revised and for the Scheduled Caste category the cut-off marks declared at the relevant time were 57.13% and since, the petitioner obtained only 55.9%, therefore, his name did not find place even in the revised merit list. On account of revision and re-framing of merit list, services of as many as 48 candidates, who were earlier appointed vide order dated 19.03.2002 were terminated by the respondent-Department. 8. Feeling aggrieved, the candidates who were terminated pursuant to re-framing of the merit list preferred writ petitions before the Co-ordinate Bench of this Court and the batch of writ petition was disposed of vide order dated 13.08.2002 in lead case S. B. Civil Writ Petition No.2393/2002. Thereafter, the order dated 13.08.2002 passed by the Single Judge was challenged before the Division Bench of this Court where as many as 24 D.B. Civil Special Appeal (Writ) were decided vide judgment dated 12.09.2008, in which lead case was D.B. Civil Special Appeal (Writ) No.902/2002 (State of Rajasthan & Ors. Vs. Om Prakash Mali). In the aforesaid judgments dated 12.09.2008, although, re- framing of the merit list was not touched, however, it was found that services of such 48 candidates was terminated without giving any opportunity of hearing and, therefore, finding such termination to be bad, directions were given to the respondent-Government to accommodate those 48 candidates also. 9. In compliance of aforesaid judgments dated 12.09.2008, the respondent No.2 issued order dated 01.05.2009, whereby the said 48 candidates were re-appointed pursuant to original appointment order dated 19.03.2002 and they were granted notional benefits from the date of their initial appointment order dated 19.03.2002 and it was also stipulated that their seniority shall also be determined as per the earlier appointment order dated 19.03.2002. 10. Learned counsel for the petitioner submits that while issuing such order dated 01.05.2009 as many as 10 candidates whose names were appearing from serial No.19 to 28 in order dated 01.05.2009 belong to SC category and as many as 8 candidates whose names are appearing from serial No.21 to 28 were having lesser marks than the petitioner. 10. Learned counsel for the petitioner submits that while issuing such order dated 01.05.2009 as many as 10 candidates whose names were appearing from serial No.19 to 28 in order dated 01.05.2009 belong to SC category and as many as 8 candidates whose names are appearing from serial No.21 to 28 were having lesser marks than the petitioner. Thus, despite the fact that the petitioner was having better claim on account of possessing higher marks than such 8 candidates appointed through order dated 01.05.2009 w.e.f. 19.03.2002, and again the petitioner was left out from consideration and appointment was not granted to him, which is quite arbitrary and discriminatory action on the part of the respondents. 11. It was further submitted by learned counsel for the petitioner that in the meanwhile, the petitioner appeared in the next recruitment process initiated by respondent No.2 in the year 2008 and vide order dated 03.06.2009, the petitioner was appointed as Junior Compounder/Nurse. 12. Learned counsel for the petitioner submits that grievance of the petitioner is that had he been rightly considered by the respondents as per the marks obtained by him in diploma, the petitioner would have been appointed in the similar manner, in which the persons having lesser marks than the petitioner in SC category had been appointed. It is submitted that the persons having lesser marks cannot be allowed to steal a march over the candidates having higher marks and the petitioner cannot be left out from consideration in the aforesaid circumstances. Therefore, learned counsel for the petitioner prayed that although, the petitioner has been appointed pursuant to recruitment process of subsequent order, yet he is entitled for notional benefits of pay fixation of seniority in the similar manner, in which, it has been granted to persons having lesser marks than the petitioner vide order dated 01.05.2009. 13. Learned Additional Government Counsel vehemently opposed the writ petition and submitted that the petitioner has got no locus to claim parity with the candidates, who were re- appointed vide order dated 01.05.2009 pursuant to judgment dated 12.09.2008 passed by the Division Bench of this Court in the peculiar circumstances and submitted that the order dated 01.05.2009 is confined only to those candidates, who were earlier appointed vide order dated 19.03.2002 but on account of re-framing of merit list, their services were terminated. Learned Additional Government Counsel submits that since, the petitioner was not a candidate earlier appointed vide order dated 19.03.2002, therefore, he cannot claim similar benefits as granted to others vide order dated 01.05.2009. 14. Learned Additional Government Counsel further submits that even as per erstwhile criteria, where the persons who could not clear the diploma examination in first attempt, the petitioner did not find place in the merit list as he was excluded due to falling in the negative category and later on when pursuant to letter dated 01.04.2002 issued by the Government, merit list was re-framed by the respondent No.2, the cut-off marks declared for SC category were 57.13%, whereas the petitioner was only having 55.9%, therefore, even as per revised criteria, the petitioner could not find place in the merit list. It is emphasized by learned Additional Government Counsel that even while passing judgment dated 12.09.2008, re-framing of merit list by revised criteria was not found arbitrary and illegal by the Division Bench of this Court and only in peculiar circumstances, where the persons appointed earlier vide order dated 19.03.2002 faced termination on account of revision of criteria and their services were terminated without affording opportunity of hearing, directions for special consideration were confined to only those candidates, hence, the petitioner has got no right whatsoever to claim any equality with the candidates re-appointed through order dated 01.05.2009. Hence, he prayed for dismissing the writ petition. He also submitted that in case the relief as prayed by the petitioner is granted, it would lead to perpetuate the illegality and irregularity, which is not permitted in law. He relied upon the judgment of Hon’ble Supreme Court in the cases of HAV (OFC) RWMWI Borgoyary & Ors. Vs. Union of India & Ors. reported in 2020 (15) SCC 546 and Pankjeshwar Sharma & Ors. Vs. State of Jammu and Kashmir & Ors. reported in 2021 (2) SCC 188 in support of his submissions. 15. Heard learned counsel for the parties and perused the record. 16. It is a matter of record that while earlier appointment order dated 19.03.2002 was issued by the respondents in which as many as 8 candidates possessing lesser marks than the petitioner were given appointment, however, the petitioner was left out on the alleged ground of falling within the exclusion criteria on account of not passing the different examinations of diploma in first attempt. Thereafter, such exclusion criteria was revised by the respondent-Government itself and merit list was re- framed and at the relevant time by narrating that the cut-off marks for SC candidates were higher than the marks obtained by the petitioner in SC category, he was left out from the merit list and appointment was not granted to him. 17. Be that as it may, it is also a matter of record that in compliance of judgment dated 12.09.2008, again appointment order dated 01.05.2009 was issued by the respondent No.2, whereby 48 candidates were given appointment and benefit of notional pay fixation and salary has been given w.e.f. 19.03.2002. It is also a matter of record that again in the order dated 01.05.2009, 8 candidates for SC category have been appointed who were admittedly possessing lesser marks than the petitioner. At this stage, the objection raised by the respondent-Government is that such consideration was in special circumstances in the light of judgment dated 12.09.2008 and the petitioner never challenged any of the criteria nor approached the Court for seeking any relief at relevant point of time. In considered view of this Court, such defence/objection put forward by the respondent-Government is totally inconceivale, baseless and discriminatory. 18. In the case of Dr. Santosh Kumari (Mrs) Vs. Union of India & Ors. reported in (1995) 1 SCC 269 , which was a case of appointment in Medical College as per merit cum preference list and in the said case, benefit of appointment was being granted to the candidate possessing lesser marks only on account of the fact that he approached to the Court and succeeded in securing order in his favour. In compliance of order of the Court, the person having higher marks was ousted from consideration for appointment on the ground that he did not approach the Court. The Hon’ble Supreme Court in such circumstances clearly held that the person with higher merit cannot be deprived only for the reason that he did not approach the Court and the person lower in merit cannot be allowed to steal a march over higher meritorious candidates. 19. The Hon’ble Supreme Court in such circumstances clearly held that the person with higher merit cannot be deprived only for the reason that he did not approach the Court and the person lower in merit cannot be allowed to steal a march over higher meritorious candidates. 19. It is settled principle of law that the candidate higher in merit cannot be deprived of his right to consideration for appointment merely on the ground that he did not approach the Court, while the candidates lower in merit have been benefited only by virtue of an order of the Court passed in their favour. Such an approach would lead to anomalous results and would ignore paramount consideration of merit in the matter of appointments. To hold otherwise would perpetuate the inequity and would also disregard the fundamental spirit of Article 14 and 16 of the Constitution of India. Accordingly, the petitioner, who secured higher marks than the persons appointed in SC category vide order dated 01.05.2009 and pursuant to advertisement dated 24.04.1999 is also entitled for appointment in the said category as per his merit. Needless to mention here that merit being the guiding factor in appointment, the respondents had no right to ignore the higher marks and the merit of the petitioner and he is also entitled to get the same benefit as granted to the persons possessing lower merits than the petitioner. 20. As regards judgments of HAV (OFC) RWMWI Borgoyary (Supra) and Pankjeshwar Sharma (Supra) relied upon by the petitioner, it is sufficiently observed that such judgments laid down the legal position that there cannot be any negative equality and illegality cannot be perpetuated and such principles are not at all attracted in the facts and circumstances of the instant matter. Therefore, the judgments relied upon by learned Additional Government Counsel are distinguishable. 21. As stated by learned counsel for the petitioner, in the meanwhile, pursuant to subsequent recruitment process, vide order dated 03.06.2009 the petitioner has already been appointed on the post of Junior Compounder/Nurse, therefore, under these circumstances, writ petition succeeds and directions are given to the respondent-Government to grant same relief to the petitioner by allowing notional benefit of seniority and pay fixation to the petitioner in the same manner in which it has been permitted to the persons appointed vide order dated 01.05.2009. Necessary orders in this regard shall be passed within a period of 8 weeks from the date of receipt of certified copy of this order. 22. The writ petition filed by the petitioner stands allowed as per aforesaid directions. 23. Pending application(s), if any, stand(s) disposed of.