Allowed

Smt. Neelima Jain v. State of Rajasthan and Ors.

Rajasthan HC26 Apr 2018CW/14187/2017

Case brief

AI extract

What is this about?

Prabodhaks faced termination following merit-list revisions and objections to their initial qualifications. The Court protected their appointments after prolonged satisfactory service without attributable fraud, concealment or misrepresentation, including where qualification deficiencies were cured shortly after appointment. It allowed the petitions, quashed termination orders and directed continu

What did the court decide?

Termination orders quashed and set aside; respondents directed to treat the petitioners as continuing in service.

Smt. Neelima Jain Vs State of Rajasthan and Ors. — Service and Employment | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Writ Petition No. 14134 / 2017

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Vipin Kumar Upadhyaya Son of Suresh Narayan Upadhyaya, Aged About 38 Years, Resident of Village Post Karchha, Tehsil Kherwara, District Udaipur.

¶4

----Petitioner

¶5

Versus

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State of Rajasthan Through the Secretary, Gramin Vikas and Panchayat Raj Department, Govt. of Rajasthan, Jaipur.

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Director, Elementary Education, Rajasthan, Bikaner.

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District Education Officer, Elementary Education, Udaipur.

¶9

----Respondents

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Connected With

¶11

S.B. Civil Writ Petition No. 14135 / 2017 Babu Lal Patel Son of Nana Ji Patel, Aged About 44 Years, Resident of Village Khuntwara, Post Bhanada, Tehsil Kherwara, District Udaipur.

¶12

----Petitioner

¶13

Versus

¶14

State of Rajasthan Through the Secretary, Gramin Vikas and Panchayat Raj Department, Govt. of Rajasthan, Jaipur.

¶15

Director, Elementary Education, Rajasthan, Bikaner.

¶16

District Education Officer, Elementary Education, Udaipur.

¶17

----Respondents

¶18

S.B. Civil Writ Petition No. 14143 / 2017 Rekha Joshi (Shukla) Wife of Chetan Shukla, Aged About 42 Years, Resident of 4 / 81, Shivaji Nagar, Housing Board Colony, Dungarpur.

¶19

----Petitioner

¶20

Versus

¶21

State of Rajasthan Through the Secretary, Gramin Vikas and Panchayat Raj Department, Govt. of Rajasthan, Jaipur.

¶22

Director, Elementary Education, Rajasthan, Bikaner.

¶23

District Education Officer, Elementary Education, Udaipur.

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(2 of 35)

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S.B. Civil Writ Petition No. 14145 / 2017 Keshav Lal Meena Son of Bhera Ji Meena, Aged About 46 Years, Resident of Village Gopa Ki Bhagal, Post Loonada, Tehsil Vallabhnagar, District Udaipur

¶26

Versus

¶27

State of Rajasthan Through the Secretary, Gramin Vikas and Panchayat Raj Department, Govt. of Rajasthan, Jaipur.

¶28

Director, Elementary Education, Rajasthan, Bikaner.

¶29

District Education Officer, Elementary Education, Udaipur.

¶30

S.B. Civil Writ Petition No. 14148 / 2017 Parul Maheshwari Wife of Rajesh Partani, Aged About 37 Years, Resident of 122-A, Subhash Nagar, Road No.5, Opposite B.N. College, Udaipur

¶31

Versus

¶32

State of Rajasthan Through the Secretary, Gramin Vikas and Panchayat Raj Department, Govt. of Rajasthan, Jaipur.

¶33

Director, Elementary Education, Rajasthan, Bikaner.

¶34

District Education Officer, Elementary Education, Udaipur.

¶35

S.B. Civil Writ Petition No. 14149 / 2017 Anil Vyas Son of Devi Lal Vyas, Aged About 42 Years, Resident of Village Post Bhanada, Tehsil Kherwara, District Udaipur.

¶36

Versus

¶37

State of Rajasthan Through the Secretary, Gramin Vikas and Panchayat Raj Department, Govt. of Rajasthan, Jaipur.

¶38

(3 of 35)

¶39

Director, Elementary Education, Rajasthan, Bikaner.

¶40

District Education Officer, Elementary Education, Udaipur.

¶41

S.B. Civil Writ Petition No. 14152 / 2017 Hitesh Kumar Upadhyaya Son of Shri Amrit Lal Upadhyaya, Aged About 38 Years, Resident of Mahaveer Colony, Kherwara, District Udaipur

¶42

Versus 1. State of Rajasthan Through the Secretary, Gramin Vikas and Panchayat Raj Department, Govt. of Rajasthan, Jaipur.

¶43

Director, Elementary Education, Rajasthan, Bikaner.

¶44

District Education Officer, Elementary Education, Udaipur.

¶45

S.B. Civil Writ Petition No. 14186 / 2017 Asha Mehta W/o Valji Mehta D/o Sharad Chandra, Aged About 50 Years, R/o Village Sagatada, Gram Panchayat Sagatada, Panchayat Samiti, Sarada, District Udaipur.

¶46

Versus

¶47

The State of Rajasthan Through the Secretary, Department of Rural Development and Panchayati Raj, Secretariat, Jaipur.

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The Director, Elementary Education, Rajasthan, Bikaner.

¶49

The District Education Officer, Elementary Education, Udaipur.

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The Block Elementary Education Officer, Panchayat Samiti Salumber, District Udaipur.

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S.B. Civil Writ Petition No. 14187 / 2017 Smt. Neelima Jain W/o Shri Naresh Jain, Aged About 40 Years, R/o 76, Mandi Ki Nal, Near Batilwal, Bohra Ki Dukan, Udaipur.

¶52

Versus

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(4 of 35)

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The State of Rajasthan Through the Secretary, Department of Rural Development and Panchayati Raj, Secretariat, Jaipur.

¶55

The Director, Elementary Education, Rajasthan, Bikaner.

¶56

The District Education Officer, Elementary Education, Udaipur.

¶57

The Block Elementary Education Officer, Panchayat Samiti, Jhadol, Tehsil Jhadol, District Udaipur.

¶58

----Respondents S.B. Civil Writ Petition No. 14205 / 2017 Basant Raj Chundawat S/o Shri Kamal Singh Chundawat, Aged About 49 Years, R/o Village Bajani Rodi, Tehsil Girwa, District Udaipur, Rajasthan. ----Petitioner Versus

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The State of Rajasthan Through the Secretary, Department of Education, Government of Rajasthan, Jaipur, Rajasthan.

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The Director, Elementary Education, Bikaner, Rajasthan.

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The District Education Officer, Elementary Education, Udaipur, Rajasthan.

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----Respondents

¶63

S.B. Civil Writ Petition No. 14218 / 2017 Smt. Rekha Sinha W/o Shri Sharan Kumar Sinha, Aged About 47 Years, R/o 5/124, HIG, Housing Board, Sector-14, Udaipur, Rajasthan.

¶64

----Petitioner

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Versus

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The State of Rajasthan Through the Secretary, Department of Education, Government of Rajasthan, Jaipur, Rajasthan.

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The Director, Elementary Education, Bikaner, Rajasthan.

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The District Education Officer, Elementary Education, Udaipur, Rajasthan.

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----Respondents

¶70

S.B. Civil Writ Petition No. 14219 / 2017

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(5 of 35)

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Smt. Usha Shakdwipi W/o Shri Pramod Shakdwipi, Aged About 45 Years, R/o 119, Ashirwad, Dharbada Gali, Uttari Ayad, Udaipur, Rajasthan.

¶73

Versus

¶74

The State of Rajasthan Through the Secretary, Department of Education, Government of Rajasthan, Jaipur, Rajasthan.

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The Director, Elementary Education, Bikaner, Rajasthan.

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The District Education Officer, Udaipur, Rajasthan.

¶77

S.B. Civil Writ Petition No. 14222 / 2017 Alka Dadhich W/o Manoj Dadhich, Aged About 40 Years, R/o 33, Satyanarain Marg, Chhoti Brahmpuri, Udaipur.

¶78

Versus

¶79

The State of Rajasthan Through the Secretary, Department of Rural Development and Panchayati Raj, Secretariat, Jaipur.

¶80

The Director, Elementary Education, Rajasthan, Bikaner.

¶81

The District Education Officer, Elementary Education, Udaipur.

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The Block Elementary Education Officer, Panchayat Samiti Salumber, District Udaipur.

¶83

S.B. Civil Writ Petition No. 14227 / 2017 Sneha Trivedi W/o Ganesh Lal Mehta D/o Ramkrishan Trivedi, Aged About 35 Years, R/o Village Kara Kala, Tehsil Salumber District Udaipur.

¶84

Versus

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The State of Rajasthan Through the Secretary, Department of Rural Development and Panchayati Raj, Secretariat, Jaipur.

¶86

The Director, Elementary Education, Rajasthan, Bikaner.

¶87

The District Education Officer, Elementary Education, Udaipur.

¶88

(6 of 35)

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The Block Elementary Education Officer, Panchayat Samiti, Salumber, Tehsil Salumber, District Udaipur.

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----Respondents

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S.B. Civil Writ Petition No. 14255 / 2017 Nathu Lal Meghwal S/o Punja Ji Meghwal, Aged About 52 Years, R/o Mukam Post Chiboda, Tehsil-salumber, District-udaipur

¶92

----Petitioner

¶93

Versus

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The State of Rajasthan Through the Secretary, Department of Rural Development and Panchayati Raj, Secretariat, Jaipur.

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The Director, Elementary Education, Rajasthan, Bikaner.

¶96

The District Education Officer, Elementary Education, Udaipur.

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The Block Elementary Education Officer, Panchayat Samiti Salumber, District Udaipur.

¶98

----Respondents

¶99

S.B. Civil Writ Petition No. 14272 / 2017 Smt. Suryakanta Dave W/o Shri Vinod Vallabh Dave D/o Shri Ramakant Dixit, Aged About 45 Years, Resident of 65, Chhoti Brahmpuri, Udaipur (Raj.).

¶100

----Petitioner

¶101

Versus

¶102

The State of Rajasthan Through the Secretary, Department of Rural Development and Panchayati Raj, Secretariat, Jaipur.

¶103

The Director, Elementary Education, Rajasthan, Bikaner.

¶104

The District Education Officer, Elementary Education, Udaipur.

¶105

The Block Elementary Education Officer, Panchayat Samiti, Salumber, Tehsil Salumber, District Udaipur.

¶106

----Respondents

¶107

S.B. Civil Writ Petition No. 14469 / 2017 Smt. Veena Dave W/o Shri Amul Dave, Aged About 43 Years, R/o 313, Shreenath Marg, District-udaipur, Rajasthan

----Petitioner

(7 of 35)

Versus

The State of Rajasthan Through the Secretary, Department of Education, Government of Rajasthan, Jaipur, Rajasthan.

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The Director, Elementary Education, Bikaner, Rajasthan.

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The District Education Officer, Elementary Education, Udaipur, Rajasthan.

¶114

----Respondents

¶115

S.B. Civil Writ Petition No. 14471 / 2017 Smt. Meera Sharma W/o Shri Ram Prasad Sharma, Aged About 49 Years, R/o Rabadiyon Ka Guda, Panchayat Samiti Badgaon, District Udaipur, Rajasthan.

¶116

----Petitioner

¶117

Versus

¶118

The State of Rajasthan Through the Secretary, Department of Education, Government of Rajasthan, Jaipur, Rajasthan.

¶119

The Director, Elementary Education, Bikaner, Rajasthan.

¶120

The District Education Officer, Elementary Education, Udaipur, Rajasthan.

¶121

----Respondents

¶122

S.B. Civil Writ Petition No. 14473 / 2017 Smt. Nirmala Nagda W/o Shri Navratan Nagda, Aged About 43 Years, R/o Village & Post Gadwa, Tehsil Mavali, District Udaipur, Rajasthan.

¶123

----Petitioner

¶124

Versus

¶125

The State of Rajasthan Through the Secretary, Department of Education, Government of Rajasthan, Jaipur, Rajasthan.

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The Director, Elementary Education, Bikaner, Rajasthan.

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The District Education Officer, Elementary Education, Udaipur, Rajasthan.

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----Respondents

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(8 of 35)

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For Petitioner(s) : Mr. Arjun Purohit, Mr. Vinod Choudhary, Mr. Rajat Dave

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For Respondent(s) : Mr. Dinesh Ojha for Mr. PR Singh, AAG

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

¶134

26/04/2018 1. These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S.B. Civil Writ Petition No.14134/2017.

¶135

Petitioners have preferred this writ petition with the following prayer :-

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“The order dated 27.10.2017 may kindly be quashed and set aside.

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The respondents may kindly be directed to continue the petitioner on the post of Prabodhak pursuant to the selection and appointments made by the respondents. Any other appropriate writ, order or direction which this Hon’ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.”

¶138

The broader consideration is regarding the post of Prabodhak in the Udaipur District. The petitioner was given appointment on the post of Prabodhak. The petitioner underwent the process of selection in accordance with Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 (hereinafter referred to ‘ the

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(9 of 35)

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Rules of 2008’ ) and after undergoing the same, the appointment were given to the petitioner. At this stage, the appointment of the petitioner, alongwith others, is being terminated by the respondents vide 11.01.2017 which is under challenge. For brevity, the facts of leading case (S.B. Civil Writ Petition No.14134/2017) are taken into account wherein the petitioner was appointed as Prabodhak on 12.12.2012. The petitioner was having the necessary qualification and was eligible for such appointment in accordance with Rules of 2008. The petitioner thereafter underwent the probation period of two year and was thereafter regularized and confirmed on the post of Prabodhak. The relevant portion of the Prabodhak Rules is reads as follows :-

¶141

“Section 2 Definition :

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(a) “Appointing Authority” means the Additional Chief Executive Officer-cum-District Education Officer (Elementary Education) of concerned District or Authority to whom powers in this behalf may be delegated by the Government by a special or general order and subject to such conditions as it may deem fit.

¶143

(f) “Member of the service” means a person appointed to a post in the service on the basis of regular selection under the provisions of these rules.

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(j) “Substantive Appointment” means an appointment made under the provisions of these rules to a substantive post after due selection by any of the methods of recruitment prescribed under these rules and includes on appointment on probation or as to probationary period.

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(10 of 35)

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Section 20 Constitution of Committee :

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Direct recrujitment to the post of Prabodhak shall be made by the Committee at District level Consisting of the following, namely :

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1. Chief Executive : Chairman Officer.

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2. Additional Chief : Member Secretary Executive Officer-cum-District Education Officer (Elementary Education)

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3. Addl. District : Member Education Officer / Member Addl. District Education Officer -cum-Senior Deputy

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District Education Officer.

¶152

38. Regulations of pay, leaves, allowances, contributory pension etc. — Except as provided in these rules, the pay, allowances, contributory pension, leave and other conditions of service of the member of the Service, shall be regulated by -

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(i) The Rajasthan Service Rules, 1951, as amended from time to time.

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(ii) The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, as amended from time to time,

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(iii) The Rajasthan Travelling Allowance Rules, 1971, as amended from time to time.

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(iv) The Rajasthan Civil Services (Revise Pay Scales) Rules, 1998, as amended from time to time

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(v) The Rajasthan Civil Services (Contributory Pension) Rules, as amended from time to time.

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(vi) The Rajasthan Civil Services (Conduct) Rules, 1971, as amended from time to time. ”

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(11 of 35)

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		Sch	edule
Sr. No. Name of Post	Method of Recruitment with percentage	Post from which promotion is to be made	Qualifications and experience for Promotion	Qualification and experience for direct Recruitment Remarks
1 2	3	4	5	6 7 - -
2. Prabodhak (4500-7000) (1) Samanya Shiksha	100% by Promotion	-	-	- - Senior Secondary School Certificate of Intermediate or its equivalent, with Diploma or certificate in basis teachers training of a duration of not less than two years or Diploma or certificate in elementary teachers training of a duration of not less than two years. or Bachelor of Elementary Education (B. El. Ed.) or Graduation with Bachelor of Education (B. Ed.) or its equivalent and Must have at least 5 year continuous teaching experience without any break in an recognized educational institution/educa

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(12 of 35)

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tional project. Intermediate or its equivalent, with Certificate in Physical Education (C.P. Ed) of a duration of not less than two years or equivalent. or Graduation with Bachelor or Physical Education (B.P. Ed.) or its equivalent. and Must have at least 5 years continuous teaching experience without any break in any recognized educational Institution/Educa tional project.

¶163

The basic advertisement was issued on 31.05.2008 and these were about 20,060 vacant posts all over the State of Rajasthan where the eligibility and experience were the basic criteria. The initial appointment order of the petitioner in the lead case is on 12.12.2012 which is Annexure-2 and confirmation order is Annexure-3 dated 27.04.2015. The respondents sought to terminate the services of the petitioner vide order dated 11.01.2017 without adopting the procedure envisaged under Rajasthan Civil Services (Classification, Control and Appeal) Rules,

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(13 of 35)

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1958 or so much so that without giving any notice or conducting any inquiry.

¶166

The petitioner preferred a writ petition before this Court being S.B. Civil Writ Petition No.744/2017 ( Smt. Meera Sharma Vs. State of Rajasthan & Ors.) decided on 23.02.2017. The relevant portion of said order dated 23.02.2017 reads as follows :-

¶167

“Reply has been filed. As per the reply, one Prakash Kalal filed SBCWP No.4357/2013 contending that the respondents have given appointment to the persons on the post of Prabodhak who are having lesser marks than him and his claim has been ignored for no valid reason. The said writ petition was disposed of vide order dated 13.1.2014 directing the petitioner to file representation. Shri Prakash Kalal submitted representation in pursuance to the order dated 13.1.2014. Same was decided vide order dated 24.08.2015 wherein it was held that although Shri Prakash Kalal had obtained 42% marks in the merit but cannot be given appointment as actually, there is no vacant post in the category in which Shri Prakash Kalal applied. Shri Prakash Kalal filed S.B. Civil Contempt Petition No.744/2014 which was disposed of vide order dated 20.07.2016 as under:-

¶168

“The Secretary Education Department, the Director Elementary Education and the District Education Officer Elementary Education, Udaipur are present in the Court as directed by this Court on 13.7.2016. Shri K.L. Thakur, AAG appears on their behalf and has placed on record an explanation supported by certain documents in response to the order dated 13.7.2016. It is not disputed by the respondents that the petitioner, who is an OBC candidate, secure 42 marks in the questioned recruitment process for the post of Prabodhak and was not given appointment whereas, numerous candidates from General as well as OBC categories were appointed against OBC category reserved seats even though having less marks as compared by the petitioner. Shri Thakur prays for some time so that the entire merit list

¶169

(14 of 35)

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can be reconsidered after holding an inquiry into the matter so as to arrive at a final conclusion regarding the persons entitled to be appointed inclusion regarding. He further assure that in case after the inquiry/exercise as above, the petitioner’s name figures in merit, he shall be offered appointment as per law. He requests that the matter may be posted after three months as the exercise as requested above would be very exhaustive and time consuming. Time prayed for is allowed.

¶171

A comprehensive report regarding the fate of exercise taken in the above terms shall be kept available for Court’s perusal on next date. The personal appearance of the respondents contemnors is exempted for the next date.”

¶172

In pursuance to the same, the State Government constituted an Enquiry Committee at the level of Directorate, Elementary Education so as to conduct inquiry in the matter of illegal appointments on the post of Prabodhak in district Udaipur. After enquiry, the Enquiry Committee submitted its report with the finding that as many as 1125 candidates from district Udaipur were appointed on the post of Prabodhak. The candidature of each and every candidate was examined in the light of eligibility at the time of their appointment on the basis of documents. So far as the petitioner is concerned, she has less marks than cut off and accordingly, the initial appointment of the petitioner itself was illegal and void ab initio. Separate reasons have been given qua separate candidates who too were served the termination order and are before this Court in connected writ petitions. The services of some of the candidates have been terminated on the ground that they belong to General category and the cut off marks in the General category are more than the marks received by them. The services of others have been terminated on the ground that they are overage or on the ground that their experience could not be counted as there were break in service, etc. etc. Learned counsel for the parties were heard and the report has been gone into.

¶173

It is admitted that the petitioner was never given the enquiry report. They were, till the filing of the report, not made aware as to why their services have been terminated. They came to know for the first time about

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(15 of 35)

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the termination of their services vide the impugned order dated 11.1.2017. The argument of the learned counsel of the respondents that they were given time to raise their objection by 25.1.2017 cannot be sustained as the said time to raise their objection was given in the same order dated 11.1.2017 vide which their services were terminated. The very order in itself is defective, inasmuch, as the order of termination and opportunity to raise objections is vide the same order. Obviously, the said opportunity is mere eyewash and that too without giving any enquiry report.

¶176

This Court is also made aware of the fact that petitioner has completed almost 09 years of service. She was confirmed on the said post after clearing the probation period. There is not a word of allegation in the enquiry report or in the reply that any one of the petitioners in any of the above writ petitions was in any way responsible in getting himself or herself appointed by misleading or concealing any fact. Even as per the enquiry report, a direction was issued to proceed for disciplinary action against the erring officers and employees who may have been instrumental in preparing the merit list at the initial stage and nothing has been stated against any petitioner and even qua the erring officer, the finding in the disciplinary enquiry has yet to be recorded. In fact the enquiry has not even commenced and before any such enquiry could even be concluded, the order of termination has been passed qua the petitioners against whom there is no allegation of misleading or concealment.

¶177

It is a well settled proposition of law that principles of natural justice requires that before making a decision, a prior notice of the proposed decision to persons affected by it and opportunity to raise objection should be given. Admittedly, no such opportunity was given to the petitioners to represent their cause or explain their position. The judgment rendered by the Apex Court in the case of Mahipal Singh Tomar Vs. State of Uttar Pradesh and Ors. :: C.A. No.4584 of 2013 (SLP (C) No.16388 of 2011) decided on 9.5.2013 is fully applicable to the case in hand. In that case, enquiry was initiated wherein on receipt of complaints alleging large scale irregularities in the placement of selected candidates in different colleges. The District Magistrate after holding enquiry in pursuance to the direction of the State

¶178

(16 of 35)

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Government found that in some cases, the candidates were given placement against non-existent posts in violation of the judgment of the Supreme Court. In view of the finding of the report submitted by the District Magistrate, the State Government issued directions for cancellation of placement of the appellants and ors. on the post of Principals. The Apex Court after relying on the various judicial pronouncements allowed the appeals by holding as under:-

¶180

“We shall now advert to the impugned orders. As analysis thereof shows that the High Court had mainly relied upon the fact finding report prepared by the District Magistrate, referred to the provisions of the 1980 Act and held that the appellants' placement in the particular colleges was contrary to law and they were responsible for such placement. The High Court noted that some of the appellants had been placed in the colleges which were not even advertised by the Commission and others were placed against the vacancies notified in earlier years. In the opinion of the High Court, the placement of the appellants was per se illegal and void. However, the record produced before this Court does not show the appellants' direct involvement in their placement in the particular colleges. That apart, the questions whether the appellants' placement in the particular colleges was contrary to the statute and whether their placement was subsequently changed for extraneous considerations could not have been decided without supplying each one of them copy of the inquiry report and without giving him/her an effective opportunity to controvert the findings recorded by the District Magistrate, who had prepared the report by looking at one side of the coin. He did not give opportunity to any of the appellants to represent his/her cause or explain his/her position. Not only this, he did not confront any of the appellants with the adverse material produced before him. Therefore, the report of the District Magistrate could not have been relied upon by the State Government for directing cancellation of the placement of the appellants in the particular Colleges and the Director committed grave illegality by mandating the termination of their services.”

¶181

(17 of 35)

¶182

Similarly, the Apex Court in the case of Inderpreeet Singh Kahlon V. State of Punjab reported in (2006) 11 SCC 356 considered the question whether the selection and / or appointment to the Punjab Civil Service (Judicial Branch) could be cancelled on the allegations of favoritism and corruption without giving opportunity of hearing to the selected candidates. The appellants in that case had been selected for appointment to the Punjab Civil Service (Judicial Branch). On receipt of the complaints that there were large scale irregularities in the process of selection, the High Court recommended to the State Government that the entire selection may be cancelled. The State Government accepted the recommendations of the High Court and cancelled the selection. The affected candidates, some of whom had already been appointed against the vacant posts, challenged the decision of the High Court and the State Government. A three Judge Bench of the High Court dismissed the writ petitions. The Apex Court reversed the order of the High Court and held that the selection could not have been cancelled without giving notice and opportunity of hearing to the affected candidates.

¶183

Some of the observations in the said case are relevant for the purpose of the decision in the present case which are as under:-

¶184

“Undoubtedly, in the selection process, there have been manipulations and irregularities at the behest of R.S. Sidhu, the then Chairman, Punjab Public Service Commission. On a careful scrutiny of the facts and circumstances of the case, in my considered opinion, the High Court ought to have made a serious endeavour to segregate the tainted from the non-tainted candidates. Though the task was certainly difficult, but by no stretch of imagination, was it an impossible task. The peculiar facts of this case which need to be highlighted are that some of the candidates have worked for about three years and their services were terminated only on the basis of criminal investigation which was at the initial stage. The termination of their services as a consequence of cancellation of selection would not only prejudice their interests seriously, but would ruin their entire future career.

¶185

The facts of this case reveal that the material supplied to the Committee having regard to the

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(18 of 35)

¶187

fact that majority of the officers named in the FIR belonged to 2001 batch, the respondents not only cancelled the entire selection of 2001 batch, but on the basis of the cancellation of selections of 2001 batch the entire process of 1999 and 2002 selections was also cancelled. It is also relevant to mention that the selection process for the year 1998 was not the subjectmatter nor any recommendation had been made by the Committee, even then the selections of this year were also vitiated. The High Court Committee without there being sufficient and adequate material on record recommended cancellation of selections of both the executive and judicial officers and the Full Bench erred in accepting the recommendation and terminating the services of all the officers.

¶188

A close scrutiny of the facts of this case clearly reveals that the judicial officers did not get a fair treatment by the High Court. They were not given copies of the report and other material on which reliance was placed and they virtually had no chance of making effective representation before the Committee or any other forum where they could ventilate their grievances and present their point of view.

¶189

Applying the test in the present case and taking into account the admitted facts that no enquiry report was given to the petitioners and no prior notice of the proposed decision to be taken by them was given to the petitioners, this Court is of the opinion that the impugned order has been passed in sheer violation of principles of natural justice and therefore, same cannot be sustained. The object behind a notice of opportunity is that a person must be given fair hearing which should extend to the right to have notice of the other side’s case, the right to bring evidence and the right to argue. The petitioner should have been given an opportunity to show that their marks were calculated as per rules, they were fully eligible and could be adjusted by following a proper procedure inherent in the exercise of the administrative power.

¶190

In view of the above, the writ petitions are allowed. The impugned order dated 11.1.2017 is set aside with liberty to the respondents to pass fresh orders, if so required, after giving due opportunity to each of the

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petitioners in accordance with law and after complying with the well settled principles of natural justice.”

¶193

Learned counsel for the petitioners have harped upon the observations of the Court in aforementioned case where even after three months were given by the Hon’ble Court at the stage of earlier writ petition for conducting a detail inquiry, the respondents were not able to point out a single word of allegation in the inquiry report or in the reply regarding any one of the petitioner in the above writ petition in any way being responsible in getting himself or herself appointed by misleading or concealing any fact. The disciplinary action and FIR was initiated against the erring officers but no action whatsoever was pointed out towards the present petitioners.

¶194

The controversy as presented by the learned counsel for the petitioners for the common consideration of this Court is two-fold. Firstly, there is a category of petitioners, who found place in the initial merit list issued in the year 2008 and were given appointment in pursuance of their falling in merit, which was subsequently revised by the respondents on account of certain directions of this Hon’ble Court to include the persons holding the experience from private institutions and other issues. On implementing such directions, the list was consistently revised and the petitioners kept on getting pushed down from the merit list, resulting into their ouster from the cut-off for the particular category, in which, they were appointed. The name of the petitioners, who are falling in the first category are, Asha Mehta, Basant Raj Chundawat, Smt. Rekha Sinha, Smt. Usha Shakdwipi,

¶195

(20 of 35)

¶196

Alka Dadhich, Sneha Trivedi, Smt. Veena Dave, Smt.Meera Sharma, Smt. Nirmala Nagda.

¶197

The name of petitioners who are falling in the second category are, Vipin Kumar Upadhyay, Babu Lal Patel, Rekha Joshi (Shukla), Parul Maheshwari, Anil Vyas, Hitesh Kumar Upadhyaya, Smt. Neelima Jain, Smt. Suryakanta Dave, who sought protection of this Court on account of the lessor meritorious persons having been appointed, and on such protection from this Court and thereafter, consequential contempt petitions and writ petitions, the petitioners were given appointment and they are continuing in such appointment for this prolonged period.

¶198

The name of the petitioners, who are falling in the third category namely Keshav Lal Meena, Nathu Lal Meghwal, are being ousted on the count that they did not possess the qualification of Senior Higher Secondary at the time of appointment and had done their BSTC course on the basis of Secondary.

¶199

This Court for seeking clarity of the situation sought certain information from the respondents vide order dated 12.04.2018, which reads as follows :-

¶200

“Learned counsel for the petitioners have argued as follows:

¶201

(i) That the petitioners were in merit at the threshold and subsequently on account of revision of merit, they went below merit.

¶202

(ii) Some of the petitioners have been given appointment in pursuance of Contempt Petition before this Court.

¶203

(iii) Some of the petitioners have been given appointment in pursuance of the orders of this Court.

¶204

(iv) No direct fraud is attributable to the petitioners. On such submissions,

¶205

(21 of 35)

¶206

the District Education Officer (Elementary Education), Udaipur is directed to remain present before this Court on 17.04.2018 to explain the aforesaid submissions. ”

¶207

The information furnished by the respondents in pursuance of the order dated 12.04.2018 reads as follows :-

¶208

“ 3. That in the Udaipur district initially 876 posts of Prabodhak were advertised by the respondents vide advertisement dated 03.06.2008 subsequently on 06.08.2008 additional 241 posts were allotted therefore the total posts became 1117 and accordingly category wise determination of post was done by the Department. The category wise determination of posts done by the department is as under :-

¶209

Sr. No.	Category	Male	Female	Total
1.	General	404	168	572
2.	OBC	71	29	100
3.	ST	57	24	81
4.	ST	43	18	61
5	SC-TSP	23	07	30
6.	ST-TSP	191	82	273
	Total	789	328	1117

¶210

4. That total 3024 application forms were received out of which total 1455 incumbents were found eligible. The interview was conducted by the department from 08.08.2008 to 06.09.2008 and after considering all the incumbents appointment order were issued in favour of 988 eligible candidates. Merits list prepared by the department at the relevant time for different category is as under :-

¶211

(22 of 35)

¶212

dz- la- Js.kh	fu;qfDr la[;k iq:"k	vafre dVvkWQ	fu;qfDr efgyk la[;k	vafre dVvkWQ	'ks"k jgs fjDr	in
					iq:"k	efgyk
1. Lkke kU;	404	56.67	168	51.67	0	0
2. vfi o	71	47.00	20	40.67	0	09
3. vt k	45	34.67	0	0	13	24
4. vt tk	43	37.00	14	32.00	1	4
5. vt k Vh, lih	21	34.33	00	00	02	07
6. vt tk Vh, lih	191	33.00	12	32.33	00	70

¶213

”

¶214

5. That thereafter one incumbent namely Sh. Naresh Kumar Chobisa was appointed vided order dated 06.07.2011 by the department in compliance of direction issued by the Hon’ble Court.

¶215

6. That interview of 24 incumbents were conducted on 19.02.2010 in compliance of direction issued by the Hon’ble High Court but they were not found eligible therefore not appointed.

¶216

7. That it is found from the record that interview of 35 candidates were conducted on 29 and 30.06.2010 and out of which 11 candidates were coming into the merit therefore their name was included and as such the total incumbents selected as Prabodhak in the Udaipur District

¶217

(23 of 35)

¶218

became 989+11 =1000

¶219

8. That as mentioned in earlier para 11 incumbents were included in the merit list therefore the entire merit list was re-suffled and the incumbents were placed at their respective position and at that time it was found that person appointed by the then District Education Officer, Udaipur Sh. Bhanwar Lal Regar made changes in the marks of some candidates however in the enquiry it was found that the then DEO made changes in regard to 5 incumbents namely Dayalal Patel, Hiralal Joshi, Suresh Chandra Sakhwadiya, Suresh Chandra Buar, Vinita Panwar. Therefore an FIR bearing No.177/2015 was registered by the then DEO Sh. Vishnu Prasad Paneri agaisnt Bhanwar Lal Regar District Education Officer, Kishan Lal Mali, Office Assistat and Mangi Lal Manaria, Upper Division Clerk before the police station Hathipole, Udaipur. The DEO changed the numbers of these 5 candidates therefore orders weer issued by the department terminating services of these 5 incumbents on 15.01.2016 but the incumbents got stay order in their favour therefore continuing in service however subsequently candidature of 92 candidates who were initially held ineligible were considered and they were selected and thereafter 9 other candidates were considered by the department whose result were initially kept in sealed cover and they too were found eligible and their name was included in the merit list.

¶220

9. That due to inclusion of all these incumbents into the merit list total merit list of 1125 incumbents were prepared however in the meantime a writ petition was preferred by one Sh. Prakash Kalal who was stated in the writ petition that less meritorious person have been appointed however the writ petition was disposed of with the direction to consider his case for appointment. The

¶221

(24 of 35)

¶222

incumbent submitted a contempt petition bearing S.B. Writ Contempt Petition No.744/2014 wherein the Hon’ble Court on 20.07.2016 passed the following order :-

¶223

The Secretary Education Department, the Director Elementary Education and the District Education Officer elementary education. Udaipur are present in the Court as as directed by this Court on 13.07.2016 Shri KL Thakur, AAG appears on their behalf and has p leased on record an explanation supported by certain documents in response to the order dated 13.07.2016 it is not disputed by the respondents that the petitioner, who is an OBC candidate secured 42 marks in the questioned recruitment process for the post of Prabodhak and was not given appointment wheres, numerous candidates from General as well as OBC categories were appointed against OBC category reserved seats even though having less marks as compared to the petitioner. Shri Thakur prays for some time so that the entire merit list can be reconsidered after holding an inquiry into the matter so as to arrive at a final conclusion regarding the persons entitled to be appointed inclusion regarding. He further assure that in case after the inquiry/ exercise as above, the petitioner’s name figures in merit, he shall be offered appointment as per law. He requests that the matter may be posted after three months as the exercise as requested above would be very exhaustive and time consuming. Time prayed for is allowed.

¶224

A comprehensive report regarding the fate of exercise taken in the above terms shall be kept available for Court’s perusal on next date. The personal presence of the respondents contemnor’s is exempted for the next date.

¶225

10. That in compliance of direction issued by the Hon’ble Court thorough inquiry was conducted by the office of Director, elementary education, Bikaner and it was found that apart from the 5 incumbents mentioned in earlier paragraph marks in favour of the 11 other candidates have been changed and as per their correct marks they are not standing in the merit. List of the

¶226

(25 of 35)

¶227

incumbents who were subsequently were not eligible as per the inquiry and their marks position is given as under:-

¶228

11. That in compliance of direction issued by the Hon’ble Court in the case of Prakash Kalal (supra) the entire merit was reassessed and it was found many incumbents were not eligible to be appointed as Prabodhak as per the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 accordingly the State Government on the basis of inquiry conducted by the office of Director, Elementary Education, Bikaner decided to issue order of termination which accordingly were passed.

¶229

Learned counsel for the petitioners, falling in category first, Shri Vinod Choudhary has submitted that till date no fraud, concealment or misrepresentation has been attributed to the petitioners and they have been continuously discharging services for last 10 years without any break to the satisfaction of the respondents.

¶230

Learned counsel for the petitioners has further pointed out that the petitioners were falling in the first merit list issued by the respondents, but admittedly, were pushed down on account of revision of the merit list. The revised merit list was on account of various judgments passed by this Court.

¶231

Learned counsel for the petitioner has further pointed out that the respondents, on account of various judgments, have carried out number of investigations, but in any of the investigation or the reply submitted by the respondents, there is no direct allegation upon the petitioners to have misled,

¶232

(26 of 35)

¶233

misrepresented or played any kind of fraud upon the selection process.

¶234

Learned counsels for the petitioners, falling in the second category, Mr. Arjun Purohit and Mr. Rajat Dave have submitted that the petitioners were falling in the original merit list, and since persons lower to them were holding the appointment, therefore, they have been given appointment only by the protection of this Court in the litigation at an earlier stage. Such litigation included various writ petitions and contempt petitions.

¶235

Learned counsels for the petitioners of second category have further submitted that till date, the petitioners also have not been attributed with any direct allegation of misrepresentation, fraud or concealment. Learned counsel for the petitioners have also averred that the petitioners have discharged satisfactory services for a prolonged period and are now being victimized only on account of prejudices, which ought to have been washed out, looking to the prolonged services alone.

¶236

Learned counsels for the petitioners have further submitted that the reason of protection to the petitioners at an earlier stage by this Hon’ble Court, which resulted into their original appointment, was their falling in the initial merit, and subsequent pushing down, resulted into their ouster, whereas persons lower in the merit were continued by the respondents, and thus, applying the cardinal principle of equity enshrined under Article 14 of the Constitution of India, the Hon’ble Courts had, at various times, protected the services of the petitioner, and thus,

¶237

(27 of 35)

¶238

they are also in continuous service.

¶239

Learned counsels for the petitioners of third category Shri Arjun Purohit and Rajat Dave have further pointed out that the initial appointment given to the petitioners was on account of their possessing qualification of BSTC course.

¶240

Learned counsels for the petitioners of third category have further averred that the necessary qualifications of Senior Higher Secondary and BSTC Courses were acquired by them within a period of two years of their joining, and since then, the petitioners are continuously discharging their duties to the satisfaction of the respondents.

¶241

The consolidation of the aforementioned three categories is on the ground that they stand on a common pedestal of having been appointed pursuant to the same selection process of 2008 on the post of Prabodhak, and all of them, are being prejudiced because of termination on account of various deficiencies in their appointments. However, the common feature which brings all the three categories for common adjudication, is that after a prolonged service of about 10 years, the petitioners have not been attributed with any kind of concealment, misrepresentation or fraud, which would have got them into the appointment. It is also a common feature in the cases of all the petitioners that their services are satisfactory and they have originally qualified in merits, in the initial round of the selection process. The respondents have permitted them to hold the office and the minor deficiencies were also accomplished in a short

¶242

(28 of 35)

¶243

duration.

¶244

Learned counsel for the petitioners therefore, makes a consolidated argument that since the petitioners were not responsible for creating any condition by concealment or fraud or misrepresentation, which would have led to their appointment, and once the appointment has been granted to them, in accordance with the Rules by the respondents themselves, then their interests have to be protected.

¶245

Learned counsel for the petitioners have relied upon the judgment passed by Hon’ble Division Bench of this Court in the matter of State of Rajasthan & Ors. Vs. Sandeep Kumar Bishnoi & Ors. (D.B. Special Appeal (Writ) No.690/2017) decided on 05.09.2017. The relevant portion of this judgment, reads as follows :-

¶246

“15. The expression: 'at this stage' in para 16 of the D.B. decision forms part of a sentence which reads: 'We direct that at this stage they will not be ousted from service'. The expression: 'at this stage' would mean the time when the Division Bench passed the order. It simply means that those who had been appointed would not be ousted from service. This is evident by the last sentence of para 16 which reads: 'The State Government will be at liberty to pass fresh orders, after revising the results and adjusting equities protecting the interest of the appellants- petitioners, to the extent that they will not be ousted from the select list and will be placed as far as possible at the bottom of the revised select list'. Further, in the preceding part of the same paragraph, the Division Bench has held: 'In the circumstances, in order to allay any apprehension and to protect the interest of the appellants-petitioners, who were appointed, and are under constant threat on the revision of lists under directions of the Court, without any fault attributed to

¶247

(29 of 35)

¶248

them, we find it appropriate to quash the order dated 30.8.2013 passed by the Secretary and Commissioner, Gramin Vikas and Panchayati Raj Department (Panchayati Raj Primary Education), Government of Rajasthan, Jaipur, to the extent that it directs termination of services of those persons, who were ousted from selections on the declaration of the first revised results.'

¶249

16. This view appears to be influenced by the decision of the Supreme Court reported as 2013(4) SCC 690, Rajesh Kumar & Ors. vs. State of Bihar & Ors. in which candidates as per the (16 of 16) [SAW690/2017] original merit position being offered appointments had joined. Upon re-evaluation of the marks they became liable to be removed since their merit position was lowered. The Supreme Court directed retention of said persons in service.

¶250

17. Under the circumstances, correcting the view taken by the learned Single Judge we dispose of the appeals directing that those who were offered appointment pursuant to the advertisement in question as Teachers and are continuing to work as Teachers would not be ousted from service.”

¶251

Learned counsel for the petitioners have also relied upon the judgment of Hon’ble Apex Court in the matter of Vikas Pratap Singh & Ors. Vs. State of Chattisgarh & Ors. reported in 2013(14) SCC 494 in which the Hon’ble Apex Court has said that the candidate who have not found to have committed any fraud or misrepresentation in being appointed and have served for more than three years, if terminated would not only impinge upon their economic security but their dependents shall also be adversely affected. The Hon’ble Apex Court has also laid down that it would be highly undesirable and highly unfair to the candidates who are innocent appointees, if they are removed at this juncture after prolonged service.

¶252

(30 of 35)

¶253

Learned counsel for the respondent Shri P.R. Singh, Additional Advocate General Assisted by Mr. Dinesh Ojha Advocate has vehemently opposed the submissions made by learned counsel for the petitioners on account of the fact that any illegality committed cannot be perpetuated by the respondents and the respondents who are not entitled as per law to be given appointment cannot have the right of claiming such appointment contrary to the Rules of 2008. Learned Additional Advocate General Shri PR Singh has further contended that in some of the cases, the age gap is quite a lot and therefore, the court need to be strict while considering the challenge to the termination orders given by the respondents.

¶254

Learned counsel for the respondents has continuously argued for last couple of times that the petitioners were in fact not entitled to carry on and the order of termination passed in the year 2017 is well justified and well reasoned, and is strictly in accordance with law.

¶255

Learned counsel for the respondents has opposed the submissions, made by learned counsel for the petitioner, of all the three categories in the following manner.

¶256

For the petitioners falling in the first category, learned counsel for the respondents has stated that they were pushed down in merit since they were not falling in the cut-off, therefore, being non-meritorious candidates, they cannot be permitted to continue with the appointment.

¶257

For the petitioners falling in the second category,

¶258

(31 of 35)

¶259

learned counsel for the respondents has averred that their appointments were made on the orders of the Hon’ble Courts, and in fact, the respondents did not find them in the merit from the initiation itself, and thus, as per the respondents, they are not fit to be carried on in the appointment.

¶260

For the petitioners falling in the second category, learned counsel for the respondents has further averred that the petitioners were given appointment, but on subsequent query being made by the Court in the matter of Prakash Kalal (supra) , whose details have already been furnished by the respondents, which lead to a fact finding inquiry by the respondents, in which the conclusion was that the petitioners were not finding place in the merit and were holding the office even when they were below the merit.

¶261

For the petitioners falling in the third category, learned counsel for the respondents has pointed out that the petitioners were not holding the valid qualification on the date of appointment itself, and thus, at the inception itself, their appointment was wrong, and since they were not having the qualification of Senior Secondary at the threshold, therefore, their appointment could be traced to be illegal from the date of appointment itself.

¶262

After hearing counsel for the parties and perusing the record of the case as well as precedent law cited at the Bar, this Court finds that the petitioners are Prabodhak who were given appointment in accordance with Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 after a proper advertisement which

¶263

(32 of 35)

¶264

was issued by the respondents on 31.05.2008 for 20,060 vacant post of Prabodhak in State of Rajasthan. This Court finds that after adhering to the selection process, the petitioners were selected

¶265

and they successfully completed their probation period to the satisfaction of the respondents. This Court also takes note of the

¶266

fact that the petitioners for the first time were sought to be terminated by the respondents after completion of about 10 years of service without making any inquiry or even giving them any kind of notice but for the protection given by this Hon’ble Court in the previous writ petitions filed by the petitioners. This Court also finds that the precedent law jurisprudence developed by the Honble Apex Court and followed by this Court regarding the employees who are in long term in appointment is that if those persons have not attained their appointments by committing any fraud or misrepresentation at the time of initial appointment then they need to be protected on account of the long service rendered by them. The Hon’ble Apex Court has gone as far as to take note that such terminations would not only impinge upon the economic security of the candidates but their dependents will also be adversely affected.

¶267

This Court is thus of the opinion that as far as the petitioners falling in the first category are concerned, those are the persons, who were there in the initial merit list and have been pushed down due to various revisions, which happened on account of the orders passed by this Hon’ble Court in relation to the recruitment in question i.e. 2008 recruitment of Prabodhak and

¶268

(33 of 35)

¶269

thus, the revision of list has prejudiced the petitioners. This Court also deems it appropriate to take note of the fact that these persons have continued in prolonged services and have rendered satisfactory service for a period of about 10 years. The petitioners were not at fault at any stage, nor the respondents have been

¶270

able to point out a single instance of attributing malpractice/concealment/ furnishing wrong information or causing any act, which would make the respondents give them the illegal appointment.

¶271

This Court has carefully seen the documentation of the petitioners falling in the second category and finds that once the persons were given appointment on account of various orders of this Hon’ble Court at the earlier stages, then they cannot be exposed to multiplicity of litigation or proceedings initiated at the instance of the respondents, as it is an admitted position that some persons at that time were below in the merit than the one being held by the petitioners for whatever reasons. This Court also finds that the petitioners, in these categories, have not been directly attributed by the respondents with furnishing of wrong information, concealment or fraud, and apart therefrom, they have also rendered long and satisfactory service of about 10 years.

¶272

This Court further finds that in respect of the petitioners falling in the third category, the adjudication has to be made, keeping in mind the fact that they have also rendered prolonged service of about 10 years and were initially given

¶273

(34 of 35)

¶274

appointment by the respondents even when they had furnished categorical information to the respondents that they had completed their BSTC Course after Secondary. The anomaly in the qualification has been resolved by them in a short duration of appointment, and for no fault of theirs, at this belated stage, after

¶275

rendering 10 years of service, the petitioners ought to be protected by the Court.

¶276

This Court finds that the petitioners in the third category never ever misrepresented or provided any false information and in fact gave the correct information regarding their qualifications, and after proper consideration, their appointment was made by the respondents, may be in a wrong mode, but now at this belated stage, any interference by the respondents in their services after a period of 10 years, cannot be permitted, as it shall cause a direct prejudice to the petitioners’ right to livelihood enshrined under Article 21 of the Constitution of India. It is also noted by this Court that after undergoing the probation, the petitioner’s services have been confirmed and they are holding the confirmed post for about last eight years to the satisfaction of the respondents.

¶277

In light of the aforesaid observations, the present writ petitions are allowed and the termination order passed against the petitioners by the respondents are quashed and set aside, while directing the respondents to treat them in continuous service which they are already in. In times when a young man is supposed to create his career in first few years of youth, it is

¶278

(35 of 35)

¶279

taken note of that most of the petitioners rendered prolonged service prior to being appointed as Prabodhak with the State Government for almost a decade as para teachers etc. and

¶280

thereafter these persons have rendered a decade of regular service with a respondents and the respondents are not in a position to refute the performance and delivery of the petitioners for the duties assigned to them.

¶281

(DR. PUSHPENDRA SINGH BHATI)J.

¶282

sudheer

Smt. Neelima Jain v. State of Rajasthan and Ors.

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Smt. Neelima Jain v. State of Rajasthan and Ors.

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