Dismissed

State of Raj. and Ors. v. Rakesh Kumar Jain

Rajasthan HC20 Jul 2022SAW/659/2017

Case brief

AI extract

What is this about?

The Division Bench dismissed Special Appeals filed by the State concluding rights to wages and advances against four lakhs of rupees and order dated 27.04.2017. The case concerns election disputes relating to changes in reservations under rule 13(5) of Rajasthan Panchayati Raj Parliament Service Rules, 2008. The court held that as the order dated 10.08.2011 had been withdrawn by the Director vide

What did the court decide?

The Special Appeals were dismissed with no order as to costs.

State of Raj. and Ors. Vs Rakesh Kumar Jain — Service and Employment | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 658/2017

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State Of Rajasthan Through Secretary, Panchayati Raj Department, Government Of Rajasthan, Jaipur.

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Director, Elementary Education, Rajasthan, Bikaner. 3. District Education Officer, Elementary Education, Banswara

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----Appellants

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Versus

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1. Ramesh Chandra Patidar Son Of Shri Hengji Patidar, Resident Of Village Post Bori, Tehsil Gadhi District Banswara.

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1. Dinesh Chandra Sewak, Resident Of Vidhya Niketan Secondary School, Ganora District Banswara.

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1. Prakash Chandra Upadhyaya Son Of Shri Reva Shanker, Resident Of Village Post Thikaaria Dahod Road, District Banswara.

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Mamta Adhikari Wife Of Shri Umesh Adhikari, Resident Of Kalika Mata, Banswara.

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Govind Singh Rao Son Of Shri Praveen Singh Rao, Resident Of 2 A 27, Behind Shiv Hanuman Mandir, Housing Board, Banswara

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Gopal Singh Rao Son Of Shri Jagdish Singh Rao, Resident Of Village Bansla Tehsil Bagidora District Banswara.

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Sudheer Pandya Son Of Shri Surya Shanker Pandya, Resident Of 59, Sharda Nagar, Link Road, Banswara.

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Sharmistha Bhatt Wife Of Shri Jenesh Bhati, Resident Of Rati Taji, Gali No. 3, Banswara.

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Reema Shah Wife Of Prashan Shah, Resident Of Rati Taji, Gali No. 3, Banswara.

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----Respondents

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Connected With

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D.B. Spl. Appl. Writ No. 659/2017

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State Of Rajasthan Through Secretary, Panchayati Raj Department, Government Of Rajasthan, Jaipur.

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Director, Elementary Education, Rajasthan, Bikaner.

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District Education Officer, Elementary Education,

(2 of 7)

[SAW-658/2017]

Banswara

----Appellants

Versus

Rakesh Kumar Jain Son Of Shri Babu Lal, By Caste Jain Resident Of Village Johara, Tehsil Bamanwas, District Swami Madhopur Raj.

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----Respondent

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For Appellant(s) For Respondent(s)

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: Mr. Pankaj Sharma, A.A.G. : Mr. Akhilesh Rajpurohit Mr. Rajat Dave

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HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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20/07/2022

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These Special Appeals (writ) have been filed against orders dated 15.07.2013 and 27.04.2017 passed by learned Single Judge whereby the writ petitions and review petitions preferred, were dismissed. The writ petitions preferred by the respondents/petitioners under Article 226 of the Constitution of India before the learned Single Judge were allowed and the District Education Officer, Elementary Education, Banswara was directed to comply with the direction/order passed by the Director, Elementary Education, Rajasthan, Bikaner dated 10.08.2011.

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Brief facts giving rise to the controversy involved in the present appeals necessary for adjudication are that the writ petitions were preferred by the respondents/petitioners stating inter alia that they had participated in the selection process for appointment on the post of ‘Prabodhak’, pursuant to Advertisement dated 31.05.2008 published by the appellants/respondents. The post of ‘Prabodhak’ is governed by

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(3 of 7)

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[SAW-658/2017]

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the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 (hereinafter referred to as the Rules of 2008). In the final merit list issued by the appellants/respondents for appointment to the post of ‘Prabodhak’, the names of respondents/petitioners were excluded. On inquiry, the respondents/petitioners found out that 14 candidates belonging to reserved category, who had availed the

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benefit of age relaxation at the time of selection process have been accorded appointment against the vacancies of general category candidates.

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The respondents/writ petitioners being aggrieved with the aforesaid action, submitted representations to the authorities of the respondent department for ventilating their grievances. The District Education Officer, Elementary Education, Banswara, forwarded the representation to the Director, Elementary Education, Rajasthan, Bikaner vide letter dated 27.08.2010 stating that out of 1292 posts in Banswara, 957 persons had been appointed to the post of ‘Prabhodak’, out of which 14 persons belonging to reserved category were not in the prescribed age limit and had been appointed against the unreserved vacancies. Thereafter, the Director, Elementary Education, Rajasthan, Bikaner, vide order dated 10.08.2011 directed the District Education Officer, Elementary Education, Banswara to shift these 14 candidates from general to reserved category and accord appointment to the persons belonging to the general category in their place, as per the merit. The order dated 10.08.2011 however, was not complied with by the District Education Officer, Elementary Education, Banswara.

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The respondents/writ petitioners preferred the writ petitions before the learned Single Judge praying that the District Education

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(4 of 7)

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[SAW-658/2017]

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Officer, Elementary Education, Banswara be directed to comply with the order dated 10.08.2011. The learned Single Bench disposed of the writ petitions vide order dated 15.07.2013, directing the District Education Officer, Elementary Education, Banswara to comply with the order dated 10.08.2011 passed by the Director, Elementary Education, Rajasthan, Bikaner.

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The respondents/writ petitioners filed Review petitions before the Single Judge against orders passed by learned Single Bench dated 15.07.2013 on the ground that the direction to comply with the order dated 10.08.2011, passed by the Director, Elementary Education, Rajasthan, Bikaner, could not be given effect since it had been withdrawn vide subsequent order dated 07.10.2013. It is submitted that prior to issuance of order dated 07.10.2013, the matter was examined by the committee consisting of Hon’ble Law Minister, Chief Secretary, Principal Secretary (Law), Principal Secretary (Education) and the Commissioner (Education) in the light of Rules of 2008. The above mentioned committee concluded thus:-

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“The department had considered these 14 candidates as general candidates in view of their higher merit and as far as their age is considered, they were within age limit as per rule 13 (5) of Prabodhak Service Rules, 2008. Therefore, these 14 SC/ST candidates have been rightly considered against general vacancies.”

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The learned Single Judge, after hearing the parties, dismissed the review petition vide order dated 27.04.2017,

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(5 of 7)

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[SAW-658/2017]

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holding that there is no error apparent on the face of record, warranting review of the order dated 15.07.2013.

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Shri Pankaj Sharma AAG representing the appellants/respondents, submitted that the candidates belonging to reserved category were within the age limit at the time of their initial appointment in government schemes/projects. Therefore, in

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view of rule 13(v) of the Rules of 2008, at the time of appointment to the post of ‘Prabodhak’, they were rightly migrated to the vacancies pertaining to general candidates as per merit. He cited before us rule 13(v) of Rules of 2008 which reads as under:

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“ 13. Age. — A candidate for direct recruitment to a post enumerated in the Schedule must have attained the age of 23 years and must not have attained the age of 35 years on the first day of January following the last date fixed for receipt of applications: Provided —

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(v) that the person serving under the educational project in the State viz Rajiv Gandhi Pathshala/Shiksha Karmi Board/Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme shall be deemed to be within age limit, had they been within the age limit when they were initially engaged even though they may have crossed the age limit at the time of direct recruitment.”

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He further submitted that the order dated 10.08.2011 passed by Director, Elementary Education, Rajasthan, Bikaner stood withdrawn by the said authority vide subsequent order dated 07.10.2013. The respondents/writ petitioners did not challenge the subsequent order and therefore, it attained finality. He stated that the subsequent order/event was brought to the

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(6 of 7)

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[SAW-658/2017]

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notice of the learned Single Judge in the review petition. The learned Single Bench was duty bound to consider the subsequent order/event in the review petition.

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Per contra, Shri Rajat Dave and Akhilesh Rajpurohit, appearing on behalf of the respondents/petitioners submitted that the 14 candidates belonging to reserved category were overage at the time of appointment on the post of ‘Prabodhak’ therefore, even if they were within age at the time of their initial appointment in the government schemes/projects, they ought not to have been migrated from reserved category to general category. Thus, the migration from reserved to unreserved category is per se illegal since they had availed age relaxation. The learned counsel for the respondents strongly supported the judgments passed in the writ petitions and review petitions.

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

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It is not in dispute before us that the Director, Elementary Education, Rajasthan, Bikaner vide order 07.10.2013 withdrew the earlier order dated 10.08.2011. The effect of the order dated 07.10.2013 is that the order dated 10.08.2011 ceased to exist. The order dated 10.08.2011 cannot be given effect, since it had been withdrawn. Under these circumstances, the respondents/petitioners should have challenged the order dated 07.10.2013, if they so desired. Consequently, in view of the challenge not having been laid to the order dated 07.10.2013, no relief could be granted to the respondent/petitioner.

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(7 of 7)

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[SAW-658/2017]

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In the result, the appeals are dismissed being devoid of

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merit. No order as to costs.

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(KULDEEP MATHUR),J

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(SANDEEP MEHTA),J

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113-114-KshamaD/-

State of Raj. and Ors. v. Rakesh Kumar Jain

Case brief

What is this about?

What did the court decide?

State of Raj. and Ors. v. Rakesh Kumar Jain

Case brief

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