Allowed

Lokesh Kumar Samdani v. State and Ors.

Rajasthan HC8 Jul 2022CW/7352/2008

Case brief

AI extract

What is this about?

This writ petition challenges the termination of the petitioner's appointment as a Teacher. The Court quashed the termination order passed due to vague allegations of superior merit, citing the finality of an earlier judgment protecting the appointment and the department's failure to specifically name the alleged 56 superior candidates.

What did the court decide?

The impugned order dated 29.08.2008 and consequential order dated 30.08.2008 are quashed; the petitioner is to be continued in service with all consequential benefits.

Lokesh Kumar Samdani Vs State and Ors. — Service and Employment | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 7352/2008

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Lokesh Kumar Samdani S/o Shri Mangi Lal, aged about 34 years, R/o Gandhi Chowk, Kapasan, District Chittorgarh.

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----Petitioner

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Versus

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The State of Rajasthan through the Secretary, Education Department, Government of Rajasthan, Secretariat, Jaipur. 2. The District Education Officer, Elementary Education, Chittorgarh.

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The Principal, Government Upper Primary School, Kajli Kheda, Tehsil – Pratapgarh, District – Chittorgarh.

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----Respondents

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For Petitioner(s)	: Mr. Rajesh Choudhary Mr. Rajendra Kataria Mr. Bhawani Singh Ransi Mr. Rajendra Mulwa
For Respondent(s)	: Dr. Bhawana Jangid, Dy. Govt. Counsel

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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08/07/2022

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Brief facts of the case as stated in the writ petition are as under :

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The petitioner applied for the post of Teacher Grade-III for the District Chittorgarh and in the merit list issued for the purpose, he found place at serial No.442. After the select list being issued and the appointments being given to the eligible candidates, it was found that one person named Jagdish Babu who was at serial No.453 in the merit list was offered appointment whereas the petitioner was not.

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(2 of 6)

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[CW-7352/2008]

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Aggrieved against the same, the petitioner preferred a writ petition being S.B.C.W.P. No.1270/1996 decided on 13.10.2004 The said writ petition of the petitioner was allowed with the following observations :

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“The notification dated 22.03.1995 is having no application for the persons belonging to the general categories irrespective of their place of residence. In view of it the preference given to the respondent No.4 while making appointment to the post of Teacher Gr.III vis-avis the petitioner is absolutely illegal and is having no foundation. The act of the respondents by not giving appointment to the petitioner though he stood at quite a higher pedestal in the merit, vis-a-vis the respondent No.4, is nothing but hostile and conscious discrimination, as such the same is in violation of Articles 14 and 16 of the Constitution of India. The order of appointment dated 21.03.1996 to the extent it relates to respondent No.4 Shri Jagdish Babu Trivedi, therefore, deserves to be declared illegal and the same deserves to be quashed and set aside. The petitioner is entitled to be considered for appointment as Teacher Gr.III in place of respondent No.4.

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As a consequence of declaration above, this writ petition is accepted and the order of appointment dated 21.03.1996 is quashed and set aside to the extent it relates to appointment of respondent No.4. The respondents are directed to consider the candidature of the petitioner for the purpose of appointment to the post of Teacher Grade-III from the date order of appointment was issued in favour of respondent No.4. The appointment shall be given to the petitioner after considering his candidature if he is otherwise found fit.”

¶20

When the order dated 13.10.2004 was not complied with, the petitioner preferred a contempt petition and during the pendency of the said contempt petition he was offered appointment vide order dated 22.03.2006. After being appointed, when the salary was not released to the petitioner he preferred a second contempt petition before this Court and during the

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(3 of 6)

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[CW-7352/2008]

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pendency of the same, the salary was paid and hence the second contempt petition was also dismissed. Vide order dated 12.12.2007 the pay-scale of the petitioner was revised and he continued in service.

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Surprisingly, notice dated 21.03.2008 was served on the petitioner with an averment that the appointment accorded to the petitioner was not in terms of law and in terms of the earlier judgment dated 13.10.2004 of this Court, as there were 56 persons finding place in merit between Jagdish Babu and the present petitioner. In the notice, it was further mentioned that as the appointment of Jagdish Babu was held to be bad by this Court, the appointment of the petitioner was also bad as there were more meritorious persons available in the merit list. Therefore, the petitioner was called upon to show cause why his appointment be not cancelled.

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A detailed reply to the show cause notice was given by the petitioner and without considering the same, the impugned order dated 29.08.2008 was passed whereby the services of the petitioner were terminated finding him not to be eligible to be appointed. Against the said order dated 29.08.2008, the present writ petition has been preferred.

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It would be relevant to submit here that by virtue of interim order dated 22.09.2008, the petitioner continues to be in service.

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On merits, counsel for the petitioner submitted that firstly, the Department has nowhere named or mentioned the so called 56 persons alleged to be meritorious than the petitioner. Therefore, in absence of any person being named and specifically being pointed out, it cannot be concluded that there were more

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(4 of 6)

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[CW-7352/2008]

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meritorious persons available. Secondly, the said ground of there being persons higher in merit available was never raised by the Department in the earlier writ petition or even in reply to the two contempt petitions filed by the petitioner. Thirdly, the Department did not prefer any review or appeal against the order dated 13.10.2004 and hence, the same has become final for all purposes.

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Learned counsel further submitted that the ground as raised by the Department falls flat on the face of it as even persons lower in merit than the petitioner have been accorded appointment. To be specific, counsel has placed on record the order pertaining to one Mahesh Chandra who stood at merit No.494 and has been accorded appointment and is continuing in service till date.

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The order of termination, that is, the impugned order nowhere speaks of the fact that there were 56 persons higher in merit available with the Department. Therefore, the order of termination being totally contrary to the notice served, deserves to be quashed.

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Per contra, counsel for the respondents submits that prima-facie the appointment of the petitioner at the first instance itself was bad. She submits that the appointment of Jagdish Babu was set aside by the Court in the earlier writ petition on the ground that the provisions of the Notification dated 22.03.1995 would not apply to the candidates belonging to the General category and hence, the preference given to the candidates belonging to the tribal areas cannot be held to be valid. She submits that in the earlier writ petition it was specifically held by this Court that the Notification dated 22.03.1995 would not apply

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(5 of 6)

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[CW-7352/2008]

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to the persons belonging to the General category irrespective of the place of their residence. Therefore, the said Jadgish Chandra and the present petitioner stood on the same footing and when Jagdish Babu’s appointment was held to be bad, appointment of the present petitioner cannot be sustained.

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Heard the counsel for the parties and perused the material available on record.

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A bare perusal of the order dated 13.10.2004 passed in the earlier writ petition filed by the present petitioner makes it clear that vide the said order it was held that the preference cannot be given to a candidate on the basis of the place of residence. Therefore on that ground, the appointment of Jagdish Babu was held to be bad. Meaning thereby, Jagdish Babu would also be considered to be a candidate of General category and could be accorded appointment only on the basis of his place in merit.

¶39

Admittedly, Jagdish Babu (merit No.453) was lower in merit than the petitioner (merit No.442) and therefore, he could not be accorded appointment. Further, in pursuance to the order dated 13.10.2004, the petitioner had been accorded appointment in the year 2006 and further had also been granted the benefit of revised pay-scale in the year 2007. All of a sudden issuance of the notice in the year 2008 without a reason or cause has not been explained by the Department. The order dated 13.10.2004 not having been appealed against becomes final for all purposes and the finding as recorded in the said judgment cannot be assailed now at this stage. Moreover, even in the impugned order the respondent authority has not pointed out as to which 56 candidates were higher in merit to the petitioner. Only a vague statement has been made that there were other 56 persons

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(6 of 6)

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[CW-7352/2008]

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available in merit higher than the petitioner. Such a statement without any specification cannot be appreciated by this Court and that too at such a later stage. In addition, the order passed in favour of one Mahesh Chandra who stood at merit No.494 is also not disputed and the fact of Mahesh Chandra continuing in service has also not been disputed.

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In view of all the above facts, it is clear that a person lower in merit to the present petitioner has also been accorded appointment and is continuing in service. Moresoever the services of the petitioner had been protected by way of interim order and he is continuing in service till date. Therefore, in view of the vague assertion on the basis of which the impugned order has been passed, this Court is not inclined to uphold the impugned order.

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The writ petition of the petitioner is therefore allowed. The impugned order dated 29.08.2008 and consequential order dated 30.08.2008 are quashed. It is directed that the petitioner would be continued in service with all consequential benefits.

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All the pending applications also stand disposed of.

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(REKHA BORANA),J

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89-AnilKC/-

Lokesh Kumar Samdani v. State and Ors.

Case brief

What is this about?

What did the court decide?

Lokesh Kumar Samdani v. State and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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