Sohanlal S/o Shri Hemaram vs State of Rajasthan

To question correctness of the judgment dated 11.04.2014,

passed by learned Single Bench in S.B. Civil Writ Petition

No.1469/2007, this appeal is preferred. The appeal is barred by

limitation from 242 days. An application is also preferred as per

provisions of Section 5 of the Limitation Act to have condonation

of delay in filing the appeal.

As per the appellant, the delay in filing appeal occurred due

to non-communication of the judgment impugned dated

11.04.2014. Much emphasis is given by learned counsel to the

fact that on merits, the writ petition deserves acceptance but due

to non-availability of the Advocate representing the petitioner-

appellant before learned Single Bench, complete facts were not

brought into notice. It is further submitted that because of delay,

no third party right has been accrued.

Learned counsel appearing on behalf of the respondents,

opposed the application.

However, looking to the entirety of the facts, we are inclined

to accept the application. Accordingly the same is allowed. The

delay in filing the appeal is condoned.

With the consent of counsel for the parties, the appeal is

heard for final adjudication at this stage.

In brief, facts of the case are that the respondents invited

applications from eligible candidates for the purpose of

recruitment to the post of Teacher/Lab Assistant/Librarian/

Physical Training Instructor from the District Employment Office.

Several persons including the appellant-petitioner instead of

getting their names sponsored from the Office of the District

Employment Officer, submitted applications for appointment as

Teacher Grade-II directly. The applications submitted were

considered and a list of selected incumbents in order of merit was

also declared. The respondents-however, did not choose to provide

appointments to the persons who did not submit the application

forms through the Employment Exchange for consideration of their

candidature to be recruited on different posts. Aggrieved by the

same, such persons including the present appellant, preferred

writ petitions before Single Bench of this court. The writ petitions

so preferred came to be accepted by the judgment dated

18.07.1995. Learned Single Bench, while accepting the writ

petitions, held that the directions of the employer as regards

filling-in vacancies from amongst the candidates sponsored by the

Employment Exchange was erroneous. A direction thus was given

to initiate the process afresh by following the procedure prescribed

under the recruitment rules. Aggrieved by the judgment given by

learned Single Bench, the State of Rajasthan preferred special

appeals before a Division Bench of this court and those came to be

decided under the judgment dated 10.09.1996. The Division

Bench though set aside the order passed by the learned Single

Bench but protected the selections already made including the

selections of the candidates who directly submitted applications

for appointment on different posts including the post of Teacher

Grade-II. In pursuance to the directions given by the Division

Bench, appointment was given to the appellant-petitioner as

Teacher Grade-II under an order dated 20.12.1996 passed by the

District Education Officer (Boys), Jodhpu. The appellant-petitioner,

after joining service, made a request to the respondents to reckon

his seniority as per placement in the list of selected incumbents

prepared in order of merit. The Deputy Director (Secondary),

Department of Education, Jodhpur, by an order dated 13.07.2006,

accorded seniority to the appellant-petitioner from the date the

select list was prepared and his placement was made in

accordance with his merit. After determination of seniority, the

petitioner submitted a representation to the Deputy Director

(Secondary), Department of Education, Jodhpur, on 28.08.2006 to

step up his pay as a person junior to him, namely, Shri Jai Ram

Sewar was getting the pay higher to him. On being failed to have

any positive response, he also served a notice for demand of

justice through his counsel. No response to the notice aforesaid

was given, therefore, he again preferred a petition for writ that

came to be dismissed under the order impugned.

Learned Single Bench, while dismissing the writ petition, held

that the appellant-petitioner was junior than Shri Jai Ram Sewar

from inception, therefore, the parity claimed is ill founded.

In appeal, the argument advanced on behalf of the

appellant-petitioner is that the learned Single Bench failed to

appreciate that the Deputy Director (Secondary), under the order

dated 13.07.2006, allowed seniority to the appellant-petitioner

with effect from 02.06.1995. As such, the finding was erroneous.

Learned counsel appearing on behalf of the respondent -

Department of Education, does not dispute the grant of seniority

to the appellant-petitioner with effect from 02.06.1995 as per the

order dated 13.07.2006. However, the argument advanced by him

is that the appellant-petitioner entered in service at a belated

stage than to Shri Jai Ram Sewar, therefore, he cannot claim any

parity with regard to payment of salary.

We do not find any merit with the argument advanced by the

learned counsel for the respondents. It is not in dispute that the

appellant-petitioner as well as Shri Jai Ram Sewar were selected

as Teacher Grade-II as a consequence to the same process of

selection. It is also not in dispute that in the selection list declared

by the competent authority, the appellant-petitioner was at higher

pedestal than Shri Jai Ram Sewar. The appointment was not given

to the appellant-petitioner on the count that he did not apply to be

considered for appointment through the District Employment

Exchange. The decision of the respondents was subject matter of

a litigation that ultimately validated the appellant-petitioner''s

selection to the post of Teacher Grade-II. While issuing the order

of appointment in favour of the appellant-petitioner, the

respondents were under obligation to settle his seniority in order

of merit as given in the list of selected incumbents. The seniority

of the appellant-petitioner too was required to be determined

accordingly. The respondents, as a matter of fact, while acting

upon a representation submitted by the appellant-petitioner,

allowed him seniority from the date the select list was declared

and the appointments were accorded to the persons who were at

lower pedestal than the appellant-petitioner in the select list

prepared in order of merit. The appellant-petitioner as such is

required to be treated in service of the respondents from the date

the persons junior to him in the select list were employed. The

respondents as such are also required to make fixation of the

appellant-petitioner''s pay in the relevant pay-scale from the date

the persons junior to him were appointed. It is also required to

extend all notional benefits including the grant of annual grade

increments to the appellant-petitioner from the date of

appointment of the junior persons to the date on which order of

appointment was issued in favour of the appellant-petitioner.

While appointing the appellant-petitioner, his pay too was required

to be fixed accordingly. If the respondents would have made fixation of the appellant-petitioner''s pay as stated above, then he

would have been receiving the pay at par with Shri Jai Ram Sewar,

who is admittedly junior to him.

In view of whatever stated above, this appeal deserves

acceptance. Accordingly, the same is allowed. The judgment

impugned passed by the learned Single Bench dated 11.04.2014

is set aside. The writ petition is allowed. The respondents are

directed to make fixation of the appellant-petitioner''s pay on

notional basis with effect from 02.06.1995 the day on which

persons standing at lower pedestal in the select list prepared in

order of merit were employed as Teacher Grade-II. The revision of

the appellant-petitioner''s pay is also required to be made

accordingly. The appellant-petitioner shall also be entitled to all

other consequential benefits. The respondents shall made

necessary fixation in accordance with the directions given

expeditiously as far as possible within a period of three months

from today.

No order as to costs.