The Division Bench dismissed appeals challenging category-wise select lists for Teacher Grade-III posts. The court upheld the Single Judge's refusal to interfere, as the earlier judgment in Kuldeep Kumar's case had attained finality and the select list complied with its directions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Spl. Appl. Writ No. 237/2022
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Bikaner, District Bikaner, Rajasthan.
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Connected With
D.B. Spl. Appl. Writ No. 231/2022
Rakesh Godara S/o Shri Sumer Singh Godara, Aged About 36 Years, B/c Jat, R/o B-4, Het Nagar, Udasar Phanta, Bikaner (Rajasthan).
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About 32 Years, Solankiyo Ki Dhaaniya, Acheena, Achina, District Nagaur (Rajasthan).
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D.B. Spl. Appl. Writ No. 368/2022
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D.B. Spl. Appl. Writ No. 401/2022
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29 Years, Resident Of Vpo Mahapura, Tehsil Chauth Ka Barwara, District Sawai Madhopur (Raj.).
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D.B. Spl. Appl. Writ No. 419/2022
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D.B. Spl. Appl. Writ No. 514/2022
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Resident Of Village Post Jaitsisar, Sardar Shahar, District Churu.
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D.B. Spl. Appl. Writ No. 525/2022
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Years, Village And Post Mokheri, Tehsil Phalodi, Jodhpur.
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D.B. Spl. Appl. Writ No. 562/2022
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Suratgarh, District Shri Ganganagar.
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D.B. Spl. Appl. Writ No. 566/2022
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(Raj.) (Dob 24.04.1992)
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D.B. Spl. Appl. Writ No. 627/2022
Bhanwar Lal S/o Shri Kana Ram, Aged About 30 Years, Resident Of - 39, Shree Janray Ji Ka Bass, V/p- Piplad, Tehsil - Sojat, District- Pali (Rajasthan).
----Appellant
Versus
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D.B. Spl. Appl. Writ No. 685/2022
Harekrishna Patidar S/o Shri Natwar Lal Patidar, Aged About 26 Years, Byecaste Patidar, R/o V.p.o. Nadiya District Dungarpur (Rajasthan)
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Versus
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D.B. Spl. Appl. Writ No. 715/2022
Mukesh Kumar Royal S/o Shri Randhir Singh, Aged About 28 Years, Bye Caste Jat, R/o V.p.o. Khansoli, District Churu (Rajasthan).
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D.B. Spl. Appl. Writ No. 764/2022
Ashok Vishnoi S/o Shri Kishna Ram Vishnoi, Aged About 30 Years, Byecaste Obc, R/o Beniwalon Ki Basti, Nosar, Lohawat, District Jodhpur (Rajasthan).
----Appellant
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D.B. Spl. Appl. Writ No. 935/2022
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| For Appellant(s) | : Mr G.R.Punia, Sr. Advocate assisted Mr M.S.Godara, Mr Falgun Buch, Mr Rajendra Prasad |
| For Respondent(s) | : Mr M.S.Singhvi, Sr. Advocate-cum-AG assisted by Mr K.S.Lodha Mr Pankaj Sharma, AAG, Mr Dhairayditya Rathore |
HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Judgment
15/02/2023 [PER HON’BLE VIJAY BISHNOI, J.]
These letter patent appeals are filed by the appellants being aggrieved with the judgment dated 23.03.2022 passed by learned Single Judge, whereby writ petitions preferred by the petitioners have been dismissed.
The facts, not in dispute, are that the respondent – State issued advertisements/notifications dated 12.04.2018 and 31.07.2018 for recruitment of Teacher Grade-III (Level-I) and Teacher Grade III (Level-II) under the Rajasthan Panchayati Raj Act, 1994 (hereinafter to be referred as ‘the Act of 1994’) and the Rajasthan Panchayati Raj Rules, 1996 (hereinafter to be referred as ‘the Rules of 1996’) for Non-TSP Area. Provisional select lists were issued and the selected candidates were called for document verification and appointments were offered to the eligible candidates. Despite the said exercise, large number of vacancies remained unfilled even after operating the reserve list. The said vacancies remained unfilled on account of non-joining of various selected candidates, candidates who were found ineligible and the candidates, who did not appear for the document verification.
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Though the large number of vacancies remained unfilled, the State Government took a decision not to fill up those vacancies. Being aggrieved with the decision of the State Government of not filling the unfilled vacancies advertised through advertisements/ notifications dated 12.04.2018 and 31.07.2018, a batch of writ petitions, led by Kuldeep Kumar vs. State of Rajasthan and Ors., SBCWP No.2094/2019, was filed in relation to Teacher Grade-III (Level-II), whereas another batch of writ petitions, led by Lokendra Singh vs. State of Rajasthan and Ors., SBCWP No.1184/2020, was in relation to Teacher Grade-III (Level-I). Writ petitions of Kuldeep Kumar and others (supra) were allowed by the learned Single Judge vide order dated 20.07.2020, whereas the writ petitions filed by Lokendra Singh and others (supra) were decided on 17.08.2020.
While allowing those writ petitions, the learned Single Judge directed the respondent - State of Rajasthan to fill remaining posts of each subject while operating category-wise reserve list. It has also been directed by the learned Single Judge that those candidates, who have already joined, pursuant to the advertisement in question and those who have not turned up either for document verification or for joining be ignored.
The State Government chose not to challenge the order dated 20.07.2020 and 17.08.2020 passed in Kuldeep Kumar’s and Lokendra Singh’s case (supra) and decided to implement the directions given by the Court. In relation to that, the State Government issued select lists on 29.12.2020 for Teacher GradeIII (Level-I) and on 11.01.2021 for Teacher Grade-III (Level-II). Being aggrieved with the same, the appellants herein preferred
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writ petitions on the ground that the select lists issued by the State Government on 29.12.2020 and 11.01.2021 are violative of provisions of Rule 277 A (vi) of the Rules of 1996.
It was contended that without reshuffling of the candidates offering appointments category-wise is ex facie contrary to law. It was also contended that law with regard to recruitment and operating of the list is well settled and against the vacancies identified for open category, everyone can compete irrespective of their category and meritorious candidates are required to be first selected under the open category, but with the issuance of select lists by the State Government on 29.12.2020 and 11.01.2021, the persons belonging to the reserved category, though possessing more or identical marks than the cut-off fixed for the open category candidates, have been placed in their category only.
During the course of arguments in the writ petitions filed by the petitioners, the learned Single Judge, who delivered the judgment in case of Kuldeep Kumar (supra), concluded that the order passed in Kuldeep Kumar’s case (supra) is required a review/reconsideration and it suo moto reviewed the order dated 20.07.2020 passed in Kuldeep Kumar’s case (supra) vide order dated 25.02.2021.
In the order dated 25.02.2021, it was clarified that the operation of the category-wise reserve list would be applicable only in those posts falling vacant on account of joining of appointed candidates, however, the remaining posts, which have been fallen vacant either on account of rejection of candidates or
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on account of candidates’ not turning up for document verification, shall be filled in accordance with law.
The order dated 25.02.2021 passed by the learned Single Judge in Kuldeep Kumar’s case (supra) was challenged by the State Government by way of SAW No.357/2021 and the Division Bench of this Court vide judgment dated 22.11.2021 has reversed the order dated 25.02.2021 passed by the learned Single Judge with the observation that the select list prepared by the State pursuant to the order dated 20.07.2020 passed in Kuldeep Kumar’s case (supra) would be examined on the basis of material on record in the pending petitions.
Thereafter, the matter came up for consideration before the learned Single Judge and the learned Single Judge has dismissed the writ petitions filed by the petitioners vide impugned judgment while holding that since the order dated 20.07.2020 passed by the learned Single Judge in Kuldeep Kumar’s case has attained finality and the action of the State Government of issuance of select lists dated 29.12.2020 and 11.01.2021 is in conformity with the directions given in the order dated 20.07.2020, no interference is called for.
Learned Single Judge was of the view that if the writ petitions filed by the petitioners are entertained, this would amount to sitting in appeal against the judgment passed by the Co-ordinate Bench and this is impermissible in law.
Assailing the impugned order, Mr. G.R. Poonia, Senior Advocate assisted by Mr. M.S. Godara has argued that the learned Single Judge has erred in refusing to interfere in the action of the State Government of issuing select list category-wise without
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examining the fact that the said action of the State Government is in clear violation of mandate of the provisions of Rule 277 A (vi) of the Rules of 1996. It is further argued that the Division Bench of this Court on 22.11.2021 specifically observed the issues raised by the appellants in connection with select list prepared by the State Government pursuant to the order dated 20.07.2020 passed in Kuldeep Kumar’s case would be examined on the basis of material on record in their petitions and as such the learned Single Judge should have decided the writ petitions on merits judging the validity of the action of the State Government of issuing select lists in violation of provisions of law. Learned counsel for the appellants has also urged that it is well settled that everyone irrespective of its category is free to compete on the basis of his merit for the open category vacancy and every candidate having identical or more marks than the cut-off the open category is required to be appointed under general category, however, in the case in hand candidates of the reserved category though possessing identical or more marks than the cut-off fixed for the open category have been offered appointments in the reserved category.
In support of the above contentions, learned counsel for the appellants has placed reliance on decisions of Hon’ble Supreme Court rendered in State of Tamil Nadu and Ors. vs. K Shobana & Ors., (2021) 4 SCC, Pramod Kumar Singh & Ors. vs. State of Uttar Pradesh & Ors., (2021) 4 SCC 680 and Saurav Yadav & Ors. vs. State of Uttar Pradesh & ors. (2021) 4 SCC 542.
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Alternatively, learned counsel Mr Punia has submitted that large number of posts are still lying vacant and the respondents may be directed to fill those posts in accordance with law ignoring the appointments given to the several candidates, pursuant to the select lists dated 29.12.2020 and 11.01.2021.
Per contra, learned Advocate General appearing for the State has argued that there is no illegality in the action of the State Government in issuing select lists dated 29.11.2020 and 11.02.2021 category-wise. It is further submitted that the State Government has simply implemented the directions given by this Court in Kuldeep Kumar’s and Lokendra Singh’s case (supra) and therefore, no fault can be found in the action of the State Government. It is further submitted that the learned Single Judge has rightly refused to interfere because any such interference would amount to sitting in appeal against the judgment passed by another Single Judge.
Learned Advocate General has further submitted that after reversal of the order dated 25.02.2021 passed by the learned Single Judge in Kuldeep Kumar’s case (supra), the same has attained finality in absence of any challenge to the order passed in Kuldeep Kumar’ case (supra), either by way of leave to appeal or review, the view taken by the learned Single Judge cannot be said to be illegal in any manner.
It is also argued that recruitment in question is of the year 2018 and several selected candidates have been provided appointments in the year 2019 and thereafter in December, 2020 and January, 2021, pursuant to the lists prepared as per the directions given by the learned Single Judge in Kuldeep Kumar’s
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and Lokendra Singh’s case and if at this stage, the plea of the appellants is accepted to prepare fresh select list after reshuffling of the candidates, it may result in unsettling appointments of many selected candidates. It is argued that the appellants have not impleaded those selected candidates as party respondents in the writ petitions despite objections raised by the State and in the absence of those selected candidates, no effective order can be passed and therefore, the learned Single Judge has rightly refused to grant any relief to the appellants.
Learned Advocate General has placed reliance on judgments of Hon’ble Surpeme Court in Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC 1, and Kumari Rashmi Mishra vs. M.P. Public Service Commission and ors., (2006) 12 SCC 724 as well as of this Court in Kanta Parihar vs. State of Rajasthan, 1999 (3) RLW 1467.
Heard learned counsel for the parties.
The writ petitions of Kuldeep Kumar, Lokendra Singh and other identical writ petitions were filed by the candidates raising grievance that the State Government illegally took a decision not to fill the unfilled vacancies advertised vide advertisements/notifications dated 12.04.2018 and 31.07.2018 for recruitment of Teacher Gr.III (Level-I) and Teacher Gr.III (LevelII) under the Act of 1994 and the Rules of 1996 for Non-TSP Areas.
Learned Single Judge after taking into consideration the contentions raised on behalf of those candidates and the State has allowed Kuldeep Kumar’s case (supra) and other identical writ
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petitions vide order dated 29.07.2020. The operative portion of the order dated 20.07.2020 reads as under:
“As an upshot of discussions aforesaid, these writ petitions are allowed. The respondents are directed to fill the remaining post of each subject, while operating categorywise reserve list. It will be required of the respondents to ignore those candidates, who have already joined, pursuant to the advertisement in question and those who have not turned up either for documents verification or for joining.”
Kuldeep Kumar (supra) and identical writ petitions were in respect of Teacher Gr.III (Level-II) category, thereafter Lokendra Singh (supra) and other connected writ petitions pertaining to the recruitment Teacher Gr.III (Level-I) category have been decided by order dated 17.08.2020 following the judgment passed in Kuldeep Kumar’s case (supra) and other connected writ petitions.
The State Government has not challenged the orders passed in Kuldeep Kumar’s and Lokendra Singh’s cases (supra) and implemented the same by issuing select lists dated 29.12.2020 and 11.01.2021 for Teacher Gr.III (Level-I) and Teacher Gr.III (Level-II) respectively.
Being aggrieved with the above referred select lists, the appellants filed a batch of writ petitions and in the writ petition filed by appellant Rakesh Godara, the learned Single Judge has suo moto reviewed the order dated 20.07.2020 passed in Kuldeep Kumar’s case (supra) and modified/clarified the same vide another order dated 25.02.2021 and made the following order:
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“The order dated 20.07.2020 rendered in the present writ petition is hereby clarified in the manner that the stipulation “while operating category-wise reserve list” would be applicable only to the posts falling vacant on account of non-joining of the appointed candidates. Remaining posts, which have fallen vacant either on account of rejection of candidates or on account of the candidates not turning up for document verification shall be filled in accordance with law.”
The said modification/clarification order dated 25.02.2021 was challenged by the State Government by way of SAW No.357/2021, which came to be allowed by the Division Bench of this Court vide order dated 22.11.2021 and the modification/clarification order dated 25.02.2021 has been reversed. The Division Bench has reversed the order dated 25.02.2021 on the grounds that the learned Single Judge should not have exercised extraordinary power of suo moto review of its order without there being any substantive proceedings instituted by any of the persons, who claimed to be aggrieved by the action of the State, whereby it has implemented the order dated 20.07.2020 passed in Kuldeep Kumar’s case (supra). The Division Bench was also of the view that the persons, who have already been appointed in accordance with the select list issued by the State Government in compliance of Kuldeep Kumar’s case (supra), have not been made party respondents despite specific objections raised by the State. Though the Division Bench has also observed that whatever the
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issues the appellants have raised in their writ petitions in connection with the select lists prepared by the State Government in furtherance of the order dated 20.07.2020 passed in Kuldeep Kumar’s case (supra) would be examined on the basis of the material on record in their pending petitions but the fact remains that the order dated 20.07.2020 passed in Kuldeep Kumar’s case attained finality.
Learned Single Judge has rightly observed that when the directions given by the learned Single Judge in Kuldeep Kumar’s case (supra) have attained finality, the same cannot be interfered by another Single Judge as it would amount to sitting in appeal.
The view taken by the learned Single Judge is perfectly in consonance with the law laid down by Hon’ble Supreme Court in Shridhar Mirajkar vs. State of Maharashtra (supra) and by a Single Judge of this Court in Kanta Parihar vs. State of Rajasthan (supra).
It is also to be noticed that the order dated 22.11.2021 passed in SAW No.357/2021 has also not been challenged by the appellants and the same has also attained finality. Though the Division Bench in its order dated 22.11.2021 has also observed that the learned Single Judge should not have modified/clarified the order dated 20.07.2020 passed in Kuldeep Kumar’s case without impleading the affected persons as party but the appellants herein have not made any attempt to implead those affected candidates, who have already joined, pursuant to
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the select list issued by the State Government, as party in their writ petitions.
Alternate argument raised on behalf of the appellants of issuing direction to the State Government to fill the remaining posts, which are still lying vacant, in accordance with law, cannot be accepted in the facts and circumstances of the case.
In such circumstances, we are of the view that the appellants have failed to persuade this Court to take a different view as has been taken by the learned Single Judge in the impugned order.
Resultantly, all these appeals fail and are hereby dismissed. There shall be no order as to costs.
(PRAVEER BHATNAGAR),J
(VIJAY BISHNOI),J
77-/-masif/PS
3 issues framed by the court
Whether the select list issued by the State Government for Teacher Grade-III posts, which operated category-wise without reshuffling candidates, was violative of Rule 277A(vi) of the Rajasthan Panchay
Whether a Single Judge could sit in appeal over a co-ordinate bench's judgment that had attained finality?
Whether the appellants were entitled to a direction to fill remaining vacancies ignoring appointments already made?
Colour shows how this judgement treated each authority
Kuldeep Kumar vs. State of Rajasthan and Ors.Followed
Kuldeep Kumar vs. State of Rajasthan and Ors., SBCWP No.2094/2019
Lokendra Singh vs. State of Rajasthan and Ors.Followed
Lokendra Singh vs. State of Rajasthan and Ors., SBCWP No.1184/2020
State of Tamil Nadu and Ors. vs. K Shobana & Ors.Referred¶448
State of Tamil Nadu and Ors. vs. K Shobana & Ors., (2021) 4 SCC · Who else cites this
Pramod Kumar Singh & Ors. vs. State of Uttar Pradesh & Ors.Referred¶448
Pramod Kumar Singh & Ors. vs. State of Uttar Pradesh & Ors., (2021) 4 SCC 680 · Who else cites this
Saurav Yadav & Ors. vs. State of Uttar Pradesh & ors.Referred¶448
Saurav Yadav & Ors. vs. State of Uttar Pradesh & ors. (2021) 4 SCC 542 · Who else cites this
Shridhar Mirajkar vs. State of MaharashtraRelied on¶460
Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC 1 · Who else cites this
Kumari Rashmi Mishra vs. M.P. Public Service Commission and ors.Referred¶460
Kumari Rashmi Mishra vs. M.P. Public Service Commission and ors., (2006) 12 SCC 724 · Who else cites this
Kanta Parihar vs. State of RajasthanRelied on¶460
Kanta Parihar vs. State of Rajasthan, 1999 (3) RLW 1467
2 provisions across 2 enactments
Ram Nivas
Mahesh Kumar
Narayan Ram Beniwal
Bhajan Lal
State Of Rajasthan
Sohan Lal Bhagora
Vijay Bishnoi
Praveer Bhatnagar
As recorded by the court registry
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