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.