Allowed

Gayatri v. State of Rajasthan and Anr.

Rajasthan HC9 Aug 2018CW/3263/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition where the petitioner claimed inadvertent error in citing Level-I marks instead of Level-II marks for a teacher post. The court ordered the respondents to consider the petitioner's actual Level-II marks for appointment eligibility.

What did the court decide?

Respondents directed to consider the petitioner for appointment on the post of Teacher Grade-III Level-II using her Level-II marks of 104 and complete the process within 60 days.

Gayatri Vs State of Rajasthan and Anr. — Pension and Retirement Benefits | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ No. 3263/2018

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Gayatri D/o Shri Bhim Singh Thori , R/o Ward No. 4, New Khunja, Tehsil And District Hanumangarh.

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----Petitioner

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Versus

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The State Of Rajasthan Through The Secretary , Department Of Elementary Education, Secretariat Rajasthan, Jaipur.

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The Director, Elementary Education , Rajasthan, Bikaner.

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----Respondents

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For Petitioner(s) : Mr. H.S. Sidhu For Respondent(s) : Ms. Deepika Purohit for Mr. P.R. Singh, AAG

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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09/08/2018

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The petitioner has preferred this writ petition under Article 226 of the Constitution of India claiming the following reliefs:

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“(i) By an appropriate writ, order or direction, the respondents may kindly be directed to consider the petitioner for appointment on the post of Teacher Grade-3rd Level II (English) while taking into consideration the marks obtained by her in Level-II REET Examination, 2015 as shown in the annex P/2, with all consequential benefits.

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(ii) By an appropriate writ order or direction, the respondents may kindly be directed to consider the representations of the petitioner annex P/7 dated 30.01.2018 and dated 26.02.2018 annex P/12 and pass a speaking order in accordance with the law and considered her for appointment on the post of Teacher Grade 3^rd Level-II (English).

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(iii) 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 petitioners.”

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Brief facts of the case, as noticed by this Court, are that the petitioner participated in the selection process for the post of Teacher Grade-III Level-II (English) for Non-TSP Area in pursuance of the advertisement No.01/2016 dated 06.07.2016, which was amended vide notification dated 11.09.2017.

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The merit in the selection process was to be prepared on the basis of the marks obtained by the candidates in REET Examination conducted in the year 2015 as well as the marks obtained in Graduation. For preparation of the merit list, 70% marks were to be taken from the marks obtained in REET Examination and 30% marks were to be taken from Graduation.

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The petitioner while qualifying her REET Examination, 2015, has secured 107 marks out of 150 marks in Level-I and has also secured 104 marks out of 150 marks in Level-II.

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Inadvertently, the petitioner mentioned her REET marks as 107 as obtained in Level-I, whereas she ought to have mentioned 104 marks secured by her in Level-II. The petitioner after undergoing the selection process, was shown at serial No.1009 in the category of OBC Non-Creamy Layer (Female), and was waiting for her appointment. However, she came to know that due to her inadvertent mistake, the REET Level-I marks have been mentioned, instead of marks obtained by her in REET Level-II, and on mentioning of either of the marks, the calculation would lead to the selection of the petitioner.

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Learned counsel for the petitioner states that the proper representation was submitted by the petitioner before the

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respondents for substituting the REET Level-I marks with REET Level-II marks i.e. substituting 107 marks with 104 marks. The respondents however, have not permitted such rectification and hence, the petitioner is being debarred from being given appointment.

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Learned counsel for the petitioner has referred to the judgment rendered by the Division Bench of this Hon’ble Court in Kavita Choudhary & Ors. Vs. State of Rajasthan & Ors. (D.B. Civil Special Appeal (Writ) No.2/2018) , relevant portion of which reads as under:

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“1. On 24^th February, 2012 an advertisement was issued inviting applications from eligible candidates to fill up notified posts of Teacher Grade-III (Level-I and Level-II) in different Zila Parishads. As per the applicable rules merit list was prepared giving 20% weightage to the marks obtained by the applicants in the Rajasthan Teacher Eligibility Test (for short, ‘RTET’) and 80% weightage at the written examination conducted by the department. As per the applicable rules minimum marks for eligibility was 60% at RTET examination.

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2. After the results were declared writ petitions were filed questioning the correctness of options indicated to some questions at the examination conducted by the department as also the examination conducted by RTET. Not only were the marks at RTET revised but even the marks obtained at the departmental examination were revised due to corrections made qua some questions. This affected large number of persons, who on the basis of the marks obtained at the RTET and the department initially, were ousted from the select list upon revision in the marks.

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3. These persons filed writ petitions. The writ petitions were decided by a learned Single Judge vide order dated 19^th December, 2013, lead matter being S.B. Civil Writ Petition No.15788/2013, Hemendra Kumar Jangid & Ors. vs. State of Rajasthan & Ors.

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4. Noting that the eligibility condition was 60% marks obtained at RTET, the learned Single Judge held that those who had obtained less than 60% marks at RTET, post revision, would

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be disqualifying for being appointed as a Teacher. Those who retained more than 60% marks in the RTET, with reference to their revised marks after RTET corrected the result as also the new marks assigned by the department and would be not included in the revised merit list were directed to be considered for retention in service if they were earlier serving in the State Government and had resigned to join the post of Teacher GradeIII.

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5. To put it simply, the learned Single Judge directed that the appointments would be in order of merit as per the revised marks obtained, but qua those who were in service and had resigned, they would be considered for retention in service.

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6. The decision of the learned Single Judge was not interdicted by the Division Bench evidenced vide order dated 2^nd December, 2014 in D.B. Special Appeal (Writ) No.1484/2013.

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7. When the department proceeded to enforce the revised result another round of litigation ensued. Large number of writ petitions were filed. They were decided by the learned Single Judge on 18^th November, 2014, lead matter being S.B. Civil Writ Petition No.10622/2014, Ramdhan Kumawat vs. State of Rajasthan & Ors.

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8. In view of the fact that by the time the learned Single Judge decided the matter, Teachers were appointed in the year 2013 and had continued, but ouster from service stared them in their face on account of their merit position being lowered, the learned Single Judge issued direction No.viii as under:

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"(viii) Such of the candidates who are already appointed but who do not figure in the revised merit list, may not be ousted from the service, if there is noting adverse against them on record and if there are sufficient vacant posts in the respective Zila Parishads for the concerned subject, and as far as possible they shall be accommodated against such vacancies by placing them at the bottom of the revised merit list of the selected candidates.”

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9. Suffice it to highlight that as per direction No.viii the learned Single Judge directed that the candidates already appointed but who do not figure in the revised merit list, may not be ousted from service if there is nothing adverse against them on record and if there are sufficient vacant posts in the respective Zila Parishads. Meaning thereby, the right of the appointed candidates who were under threat of ouster from service on

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account of revised merit list was not conferred as an absolute right. It was subject to availability of sufficient posts, and this could only be if the candidates in the merit list being offered appointments did not join.

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10. Simply following the decision dated 18^th November, 2014, another learned Single Judges decided a few other writ petitions, which decision dated 3^rd January, 2014 came up for consideration before a Division Bench in D.B. Special Appeal (Writ) No.35/2014 and connected appeals. Needless to state the Division Bench had to consider the legality of the decision dated 18^th November, 2014 in Ramdhan Kumawat’s case (supra).

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11. Noting direction No.viii issued by the learned Single Judge, in respect whereof the candidates who were offered appointments and were working and faced a threat of ouster from service, the Division Bench passed directions in para 16 of its decision dated 8^th December, 2014 as under:

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"16. We do not find any error of law and agree with the reasoning given by learned Single Judge in Ramdhan Kumawat V/s The State of Rajasthan & anr. (supra), pursuant to which the results have to be revised after fresh evaluation of answers. The revision of select list is thus not complete and the process is still open. 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 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. We direct that at this stage, they will not be ousted from service. The termination orders passed, if any, consequent to the orders dated 30.8.2013, are set aside. The directions given by learned Single Judge in Ramdhan Kumawat V/s The State of Rajasthan & anr. (supra), namely, that the Expert Committee will issue model answer keys afresh and that the results will be revised in accordance with such keys, will be given effect to, leaving the question of its correctness open. The State

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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.”

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12. The Division Bench directed that at this stage Teachers who were already appointed would not be ousted from service. The termination orders dated 30^th August, 2013 were set aside. Adjusting equities the Division Bench held that these candidates i.e. the ones who were given appointment but as a result of the revision in the marks would be liable to be ousted from service would be retained in service and would be placed at the bottom of the revised merit list.

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13. The decision of the Division Bench has attained finality.

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14. The next round of litigation commenced when orders terminating the service of some Teachers who were already appointed and some who faced the threat of termination approached this Court. Vide order dated 19^th May, 2017 the learned Single Judge disposed of the writ petitions by putting a cat amongst the pigeons by highlighting that the expression: “at this stage” in para 16 of the decision of the Division Bench would mean till the process of filling up of the vacancies was over. It was held: ‘Mr. Ladrecha invited attention of this court towards para No.14 of the judgment of Division Bench and conteded that the Division bench while protecting petitioners’ right had consciously used the expression ‘at this stage’. According to him, such expression should be read to mean, ‘till the process of filling up the vacancies pursuant to Ramdhan Kumawat’s case is over’.

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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 appellantspetitioners, 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

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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 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.’

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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 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.

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17. The appellants who came up in the merit list post revision of the answers thus cannot make any grievance that persons who have obtained lesser marks than them in the revised merit list are continuing in employment on the strength of the original merit list, for the reason these persons had their employment saved in view of the earlier decisions noted hereinabove. This is the view taken by the learned Single Judge in the decision which have been impugned in these appeals.

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18. The appeals are dismissed.”

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Learned counsel for the petitioner however states that it was only an inadvertent mistake as both the marks i.e. 107 marks in Level I and 104 marks in Level II were there in the same mark-sheet of REET Examination, 2015, however, inadvertently, the petitioner mentioned the marks of Level I instead of Level II.

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It is contended by learned counsel for the petitioner that substitution of marks from Level-I to Level-II would not create any difficulty for the petitioner for qualifying the merit.

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Learned counsel for the respondents is not in a position to refute the submission made by learned counsel for the

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petitioner that the petitioner would stand qualified even if her marks in REET Level-I are substituted by REET Level-II marks.

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After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited that Bar, this Court finds that the precedent law of Kavita Choudhary (supra) is applicable in the present case. The petitioner is merely made an inadvertent mistake of mentioning marks of REET, 2015 Level-I which were 107 marks whereas she ought to have mentioned REET, 2015 Level-II marks which were 104.

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In light of the aforesaid observations, the present writ petition is allowed and the respondents are directed to consider the petitioner for appointment on the post of Teacher Grade-III Level-II (English) while taking into consideration the marks obtained by her in REET, 2015 Level-II i.e. 104 marks, and thereafter, if she is otherwise found eligible and meritorious, appropriate appointment shall be given to the petitioner within a period of 60 days from today.

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(DR.PUSHPENDRA SINGH BHATI),J

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/zeeshan/

Gayatri v. State of Rajasthan and Anr.

Case brief

What is this about?

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Gayatri v. State of Rajasthan and Anr.

Case brief

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