State of Rajasthan and Another vs Sunil Kumar and Others

After having heard the learned counsel for the parties and having perused the material placed on record, as also that placed for consideration during the course of arguments, we are of the view that interest of justice warrants reconsideration of the application moved by the present appellants for vacation of the interim order passed in the pending writ petition (CWP No. 8865/2013) without any of our comments on the merits of the case either way. The dispute relates to the process of recruitment to the post of Homeopathic Chiktisa Adhikari, which has been put to challenge by the respondents-writ petitioners on various grounds including the grounds that the proposition of the State Government to prepare the merit list on the basis of average percentage of marks obtained in BHMS course and providing bonus marks to the persons having experience of working in Government projects/schemes was contrary to the requirements of fair play and was operating towards discrimination.

The writ petition was considered by the learned Single Judge on 19.08.2013 and after taking note of the submissions of the petitioner and directing the matter to be listed on 26.08.20013, it was ordered that no appointment shall be made on the post of Homeopathic Chiktisa Adhikari pursuant to the advertisement dated 01.06.2013.

The present appellants, who are the respondents in the writ petition, moved an application seeking vacation of the interim order, that has been considered and rejected by the learned Single Judge of this Court in the order dated 02.09.2013 while observing that as per the mandate of the Rule, entire percentage of marks obtained in qualifying examination by the candidate was required to be considered for preparing the merit but the Government has evolved a wholly illegal and unauthorized procedure for taking into consideration 70% weightage instead of entire percentage of marks. The learned Single Judge was also of the view that the State Government cannot undo the decision of the Hon''ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, by making amendments in the rules.

It has been pointed out during the course of submissions that such nature question were posed in various other matters concerning other recruitment processes including one in SBCWP No. 9352/2013 Mahendra Kumar Vs. State of Rajasthan & Ors. relating to the recruitment to the post of Nurse Grade-II under the Rajasthan Medical & Health Subordinate Service Rules, 1965. Such questions were also formulated in SBCWP No. 4144/2013 Archana Vs. State of Rajasthan & Ors. relating to the recruitment to the post of Lower Divisional Clerk under the Rajasthan Panchayati Raj Rules, 1996. It is submitted that in such matters, the referred questions have been answered by a Division Bench of this Court to the effect that "grant of fair weightage in the form of bonus marks against service experience was neither discriminatory nor arbitrary".

When the matter relates to the recruitment process and when the issues taken into consideration by the learned Single Judge on 02.09.2013 had otherwise been subject of larger bench reference in other cases; and such reference have been answered by a Division Bench of this Court, the applicability of the answers so given in the reference proceedings to the pending writ petition (CWP No. 8865/2013) cannot be denied.

In view of aforesaid facts and circumstances, it appears necessary and in the interest of justice that the application moved by the respondents for vacation of the interim order be considered afresh by the learned Single Judge with reference to the prevalent and applicable law.

Therefore, the impugned order dated 02.09.2013 is set aside; and the application filed by the present appellants in CWP No. 8865/2013 for vacation of interim order is restored for reconsideration of the learned Single Judge.

The office may list the writ petition for afresh consideration of the application for vacation of the interim order at the earliest, preferably within 10 days from today as per the convenience of the Bench concerned. In the interest of justice, it is also considered appropriate and hence, ordered that the interim order hitherto operating, shall continue to remain in operation until the disposal of the application for vacation of the interim order by the learned Single Judge.

It is, however, made clear that we have otherwise not pronounced on the merits of the case either way. The appeal stands allowed to the extent and in the manner indicated. No costs.