Allowed

Mahesh Kumar Kabra and Anr. v. State Animal Husbandry Anr.

Rajasthan HC8 Oct 2015CW/5206/2013

Case brief

AI extract

What is this about?

Court disposed of writ petitions challenging termination of services due to post-appointment change in merit criteria. Appointed candidates were ordered to continue in service against future vacancies but placed at the bottom of the merit list. Retrospective protection was denied to those not re-appointed.

What did the court decide?

Petitions allowed; terminated appointments confirmed against future vacancies; respondents directed to place petitioners at bottom of 2011 merit list.

Mahesh Kumar Kabra and Anr. Vs State… — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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S.B. CIVIL WRIT PETITION NO.5355/2013

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(Sanju Nama Vs. State of Rajasthan & Anr.)

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AND

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S.B. CIVIL WRIT PETITION NO.6592/2013

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(Saroj Kumari Vs. State of Rajasthan & Anr.)

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AND

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S.B. CIVIL WRIT PETITION NO.5789/2013

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(Sunil Kumar Sharma & Anr. Vs. State of Rajasthan & Anr.)

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AND

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S.B. CIVIL WRIT PETITION NO.5755/2013

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(Rakesh Kumar & Anr. Vs. State of Rajasthan & Anr.)

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AND

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S.B. CIVIL WRIT PETITION NO.5508/2013

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(Bharat Singh & Anr. Vs. State of Rajasthan & Anr.)

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AND

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S.B. CIVIL WRIT PETITION NO.5205/2013

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(Ashok Kumar & Ors. Vs. State of Rajasthan & Anr.)

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AND

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S.B. CIVIL WRIT PETITION NO.5206/2013

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(Mahesh Kumar Kabra & Anr. Vs. State of Rajasthan & Anr.)

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Date of Order : 08^th October, 2015

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HON'BLE MR. JUSTICE M.N. BHANDARI

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Mr.Rakesh Kumar Sharma ] Mr..Gajendra Singh Rathore ] Mr.Ankur Srivastava ], for the petitioners. Mr.D.V.Tholia, Additional Advocate General.

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By the Court:

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By these writ petitions, a challenge is made to the order of termination dated 11^th March, 2013.

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Learned counsel for the petitioners submits that in pursuance to the selection to the post of Live Stock Assistant, the respondents determined the merit. Based on the aforesaid, the petitioners were given appointment. They joined the services but were shock to notice that criteria for determination of merit was changed subsequent to the appointment of the petitioners and others. As a result of change in the criteria, the petitioners' merit position was changed adversely and consequently, they were terminated from service. A candidate once adjudged in merit, he/she should not have been terminated. If there was reason to change the merit, the petitioner should have been continued against future vacancies and by placing them in the bottom of merit list. In fact, the Government should not have altered the merit list by changing the criteria for determination for it, that too, after the appointment, thus the action of the respondents to redetermine the merit list itself is illegal so as the consequential order.

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Learned Additional Advocate General, on the other hand submits that change of criteria was made in pursuance to the interim order passed by this Court on 06^th August, 2012 in

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the case of Satish Kumar Verma & Ors. Vs. State of Rajasthan & Anr. in SB Civil Writ Petition No.2437/2011. As a result of interim order, the Department took a decision to change the criteria so as to maintain parity and to see that candidates, who have taken required qualification from old pattern, may not be ousted. A decision was accordingly taken to give 50 percent weightage to the practical examination and 50 percent to the written examination. It resulted in change of merit and therein, 26 candidates earlier selected could not find place in the merit and accordingly, their services were terminated vide order dated 11^th March, 2013. Out of those 26 candidates, 20 candidates have again been selected and given appointment in pursuance to the subsequent advertisements of the year 2013, though out of 20, one candidate did not join the post, thus 19 such candidates are already working leaving only six candidates. In view of the above, so far as the petition on behalf of 19 such candidates are concerned, it should be rendered infructuous.

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I have considered rival submissions and perused the record.

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The respondents issued an advertisement on 27^th January, 2011 calling for the applications for the post of Live Stock Assistant. Based on the formula evolved by the respondents, merit list was drawn followed by appointments

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vide order dated 04^th September, 2012. Prior to the order of appointment, this Court passed an interim order on 06^th August, 2012 directing the Government Advocate to seek instructions as to whether criteria laid down by them would deprive many candidates from appointment only for the reason that they had taken the educational qualification required for the post with different pattern, resulted in less marks in written exams. It was looking to the fact that merit list was drawn based on the marks in educational courses. In pursuance to the direction to the Government Advocate to seek instructions, the Government took a decision to change the criteria for selection at their own. It adopted criteria to given equal weightage to written and practical examination. On account of change of criteria, there was change of merit and ultimately, it resulted in impugned order of termination of those 26 candidates, who went out of the merit. The grievance of the petitioners is that without their fault, they have been terminated and, that too, by chanbe of criteria after appointment. The termination was made almost six months subsequent to the appointment.

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As per the information given by learned Additional Advocate General, all the petitioners have been appointed in pursuance to the subsequent selection other than Saroj Kumari d/o Sanwat Ram, Sunil Kumar Sharma s/o Krishna Gopal and Ramesh Jyani s/o Bhanwar Lal. In fact, Saroj Kumari did not

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apply in pursuance to the subsequent advertisement in the year 2013 as informed by the learned counsel for the petitioner.

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In the background aforesaid, other than for three petitioners, termination remained effective for the limited period for other petitioners because they were subsequently appointed again on the same post. This Court even passed interim order, thus petitioners continued in service.

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The issue mainly remains for the petitioners, namely, Saroj Kumari d/o Sanwat Ram, Sunil Kumar Sharma s/o Krishna Gopal and Ramesh Jyani s/o Bhanwar Lal as to whether they can be continued in service.

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The issue aforesaid needs no elaboration as the legal position on the aforesaid issue has been settled by the Hon'ble Apex Court in the cases of Rajesh Kumar & Ors. vs. State of Bihar & Ors.,(2013) 4 Supreme Court Cases 690 and Vikas Pratap Singh & Ors. vs. State of Chhattisgarh 7 Ors.,(2013) 14 Supreme Court Cases 494 .Therein, it has been held that a person, already appointed, should not be discontinued even if there is a change in merit. They should be adjusted against the future vacancies. Similar issue was decided by the Division Bench of this Court in the case of Mohanlal Kasawada Vs. RSRTC in DB Civil Appeal No.793/2014 dated 08^th January, 2015 at Principal Seat, Jodhpur. The Special Leave Petition against the said judgment has been dismissed, as

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informed by learned counsel for the petitioner. In view of the above, these writ petitions can be ordered to be governed by the judgment supra. Those petitioners, who were again appointed in the year 2013/14 would be protected regarding period for probation but their seniority would be counted by taking them at the bottom of the merit list of 2011. So far as Saroj Kumari d/o Sanwat Ram, Sunil Kumar Sharma s/o Krishna Gopal and Ramesh Jyani s/o Bhanwar Lal are concerned, though they were selected and appointed in pursuance to the advertisement of the year 2011, their appointment may be continued but would be treated against the future vacancy and accordingly, they would also be placed at the bottom of merit list of 2011 for all purposes. The direction aforesaid is given in the light of the judgment supra. The petitioners Saroj Kumari d/o Sanwat Ram, Sunil Kumar Sharma s/o Krishna Gopal and Ramesh Jyani s/o Bhanwar Lal have otherwise continued in service due to interim order in their petition/s.

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The impugned order would not have effect on the directions given above. It would save all the petitioners from the effect of termination, though their appointment would be taken against the future vacancies with the arrangement given above.

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With the aforesaid, these writ petitions stand disposed of so as the stay applications.

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(M.N. BHANDARI),J.

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S/Nos.178 & 182, 176, 177, 179, 180, 181 Preeti, PA

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

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Preeti Asopa P.A.