Dismissed

Satya Narayan v. State and Ors.

Rajasthan HC19 Apr 2024CW/1228/2015

Case brief

AI extract

What is this about?

A Teacher Gr.III select-listed candidate who filed writ petitions long after 18.11.1999 sought appointment on parity with lower-merit appointees. Relying on Supreme Court rulings confining relief to candidates who litigated before the cut-off date, and holding Neeraj Saxena's case is no precedent, the High Court dismissed the petition.

What did the court decide?

None granted; writ petition and pending applications disposed of.

Satya Narayan Vs State and Ors. — Service and Employment | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 1228/2015

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Satya Narayan S/o Shri Ramesh Chandra aged about 42 years, Resident of 106 – A, Sector No.2, Gandhi Nagar, Chittorgarh.

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----Petitioner

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Versus

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State of Rajasthan through Secretary, Panchayati Raj Department, Govt. of Rajasthan, Secretariat, Jaipur, Rajasthan.

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Director, Elementary Education, Bikaner, Rajasthan. 3. The District Education Officer, Zila Parishad, Chittorgarh, Rajasthan.

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The Chief Executive Officer, Zila Parishad, Chittorgarh, Rajasthan.

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Hemant Kumar S/o Sh. K.C. Jain, C/o Chief Executive Officer, Zila Parishad, Chittorgarh, Rajasthan.

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----Respondents

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For Petitioner(s)	: Mr.	Gopal Sandhu.
For Respondent(s)	: Mr.	Lalit Pareek,Dy.G.C.

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HON'BLE MR. JUSTICE ARUN MONGA Judgment

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19/04/2024

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Such are the vagaries of the litigation that petitioner herein having remained throughout diligent, except at one point of time, to pursue his cause, has yet been left completely hapless for no fault of his for the past more than 20 years. Notwithstanding that, he has had to resort to repeated foray of litigation before this Court. More of it later.

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Claim of the petitioner herein is for seeking appointment on the post of Teacher Gr.III pursuant to an advertisement No.1/98 with all consequential benefits w.e.f. the date respondent No.5 was given appointment. Further, he seeks quashing of an order dated 09.06.2014 (Annex.13), vide which the respondent No.5

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was granted appointment, who is admittedly lower in merit to the petitioner.

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Brief facts of the case are that the respondents issued an advertisement for the post of Teacher Gr.III in the year 1998. Pursuant to which, the petitioner participated in the written exam and obtained 74.94%. However, after deduction of his bonus marks, his marks came down to 59.94%, but his name figured on the select list of meritorious candidates.

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3.1 Vide letter dated 18.12.2003, the respondents wrote to the Controller, L.N. Mithila University, Darbhanga for sending the mark sheet of the petitioner along with other candidates after verification. The University vide its letter dated 14.02.2004 verified all the mark sheets of the petitioner and other four candidates.

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3.2 Vide order dated 03.07.2004, the respondents though gave appointment to Mr. Deepak Kumar, Tejmal Gupta and Sanjay Kumar, who are less meritorious than the petitioner, but , the petitioner was not given appointment. Aggrieved, the petitioner filed SBCWP No.5009/2004 before this Court. Vide order dated 07.01.2014, this Court disposed of the said petition with a direction to the petitioner to file fresh representation before the respondents.

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3.3 Pursuant to the order dated 07.01.2014, the petitioner submitted a representation before the respondents. However, vide order dated 09.06.2014, the representation of the petitioner was rejected on the ground that the merit list was no more in currency. Hence this petition.

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Defence taken by the respondents in their reply is as below:

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4.1 Merit list was prepared as per the circular dated 10.06.1998 issued by the State Government at the relevant point of time. 10 bonus marks for the district and 5 bonus marks for rural area candidates were included for a candidate while preparing the merit list. According to which, petitioner was not falling in the meritcriteria. The petitioner had since secured his Bachelor's degree in Education from outside the State, it could not be considered for want of verification of his degree-certificate. Thereafter, in compliance of the judgment dated 30.07.2002 passed by the Hon'ble Supreme Court and circular dated 10.10.2002 issued by the State Government, fresh merit list was prepared for the candidates who were appointed after 18.11.1999, deducting above-said 10+5 bonus marks.

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4.2 However, at the relevant point of time, the petitioner did not approach either this Court or the Hon'ble Supreme Court of India within the time stipulated by the Hon'ble Supreme Court i.e. before 18.11.1999. In other words, relief of consideration of candidature was given by the Hon'ble Supreme Court of India to the limited group of persons, those who had approached Court in time. The petitioner in the instant case was not partypetitioner/intervener in that set of litigation. The present writ has been filed by the petitioner at a belated stage. Hence, in view of observations and directions of the Hon'ble Supreme Court in case of Kailash Chandra Sharma's case, he is not entitled to get any relief from this Court.

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4.3 Similarly situated other persons were no doubt given appointment, but in compliance of the orders passed and directions issued by this Court as well as Hon'ble Supreme Court of India. Neither there is any discrimination, nor is there any arbitrariness in the action of the respondents. Writ petition thus deserves to be dismissed.

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In the aforesaid backdrop, I have heard the competing contentions of the learned counsel and perused the case record. 6. From the aforesaid narrative of the facts what emerges thus is that though the controversy, which lies in a very narrow compass and yet it has remained pending for adjudication due to the delay caused by reasons beyond the control of the petitioner in taking up the instant petition for final hearing, which was filed way back in the year 2015.

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The issue involved herein is whether in light of Apex Court’s judgment rendered in Manmohan Sharma Vs. State of Rajasthan & Ors.: Civil Appeal No.4294 of 2014, & Other connected matters, decided on 01.04.2014 preceded by an earlier judgment of the Apex Court in Kailash Chand Sharma

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Vs. State of Rajasthan & Ors. : (2002) 6 SCC 562 , the petitioner being similarly situated as other counterparts is entitled to the benefit thereof?

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The answer is in negative. Let us see how.

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First and foremost, it would be apposite to reproduce the

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relevant part of Kailash Chand Sharma, ibid , which is extracted hereinbelow:-

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“45. One more point which needs mention. Some of the learned counsel argued that the unsuccessful

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applicant should not be allowed to challenge the selection process to the extent it goes against their interest, after having participated in the selection and waited for the result. It is contended that the discretionary relief under Article 226 should not be granted to such persons. Reliance has been placed on the decision of this Court in Madan Lal v. State of J&K (1995) 3 SCC 486 and other cases in support of this argument. On the other hand, it is contended that in a case of challenge to unconstitutional discrimination, the doctrine of acquiescence, estoppel and the like does not apply and the writ petitioners cannot be expected to know the constitutional implications of the impugned circular well before the selections. We are not inclined to go into this question for the reason that such a plea was not raised nor was any argument advanced before the High Court.

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46. Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court and to make appointments made on or after 1811-1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct:

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"1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis-à-vis the candidates appointed on or after 18- 11-1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18-11-1999.

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2. The appointments made upto 17-11-1999 need not be reopened and re-considered in the light of the law laid down in this judgment.

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3. Writ Petition No. 542/2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time.”

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In light of the aforesaid, subsequently, in the case of Manmohan Sharma (supra), the Supreme Court further clarified the position, which is as below:-

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“24. On behalf of the appellant in Civil Appeal arising out of SLP No.31818 of 2012 it was argued that the termination of the services was unjustified having regard to the fact that the said appellant was a writ-petitioner before the High Court alongwith Naval Kishore Sharma and others. Writ Petition No.2200 of 2000 filed by Danveer Singh was allowed by the learned Single Judge of the High Court along with Naval Kishore’s case by a common order dated 26^th February, 2001. That order was challenged by the State in Writ Appeal No.130 of 2001 but only qua other writ- petitioners comprising the batch. The order passed in the writ petition filed by Danveer Singh never came under challenge before the Division Bench of the High Court. Consequently the order passed by the Division Bench did not pertain to the said appellant nor was he impleaded as a party before this Court in the appeals filed by the State. That being so, the termination of the services of Danveer Singh on the basis that he was not a writpetitioner before the High Court was not justified argued the learned counsel. It was contended that what was important was whether the appellant was the writ-petitioner before the High Court out of which the judgment in Naval Kishore’s case (supra) arose. The fact that the State had not chosen to challenge the order passed in favour of Danveer Singh could not place the said appellant in a more disadvantageous position than those against whom the State had filed the appeal first before the Division Bench of the High Court and later before this Court.

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25.There is, in our opinion, considerable merit in the submission made by learned counsel for the appellant Danveer Singh. Even Mr. Mangal Sharma appearing for the respondent fairly conceded that on a true and proper construction of the order of this Court in Kailash Chand Sharma’s case (supra), the benefit of appointment to Danveer Singh could not be denied merely because the order passed in his favour had not been assailed by the State or because he had not been impleaded as respondent in the Supreme Court in the appeal filed by the State. The termination of services of Danveer Singh cannot in that view be sustained.

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26.It was lastly contended by learned counsel for the appellants that the appellants were appointed and have served the schools to which they have been posted for nearly a decade. Their appointments having been made on a bona fide error in the interpretation of the order of this Court but so long as there was no fraud played by the appellants there was no reason why they should be deprived of the benefit of such a long period of service.

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Alternatively, it was submitted that since the appellants have, by now, crossed the upper age limit for recruitment as teachers, this Court could consider issuing a direction for consideration of their cases in future recruitments in relaxation of the age bar.

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27.The appellants had been appointed and have served for nearly a decade but there are allegations that such appointments were obtained by misrepresentation of facts and fraudulently. We do not consider it necessary to go into that aspect as we are informed that criminal cases have already been registered against appellants. Any observation made by us whether or not the appointments were obtained by mis-representation or by playing fraud upon the authorities concerned is bound to cause serious prejudice to the appellants. All that we need say is that in the facts and circumstances of the case we do not consider the appellants to be entitled to the relief of regularization of their services as prayed for by them. Having said that we cannot ignore the fact that the appellants will be left without any alternate avenues of employment at this stage of their lives. Subject to any finding that may be recorded by a competent Court, as regards the alleged fraudulent nature of the appointments secured by the appellants, we direct that such of the appellants as were appointed as teachers and as have now been terminated may be given a one-time concession of relaxation of the upper age limit and considered in the next selection process in relaxation of rules regarding such age limit prescribed for appointment as teachers. We make it clear that the above shall be a one-time relaxation for the appellants to try their luck in the next selection process. The appellants or such of them as wish to avail of this concession shall file an undertaking before the appointing authority concerned to the effect that the fresh appointment if any given to them pursuant to the age relaxation shall stand terminated in case they are found guilty and sentenced to imprisonment in the criminal case registered against them for obtaining a fraudulent appointment. Beyond that we do not consider the appellants to be entitled to any relief from this Court. The appeals are with the above directions disposed of leaving the parties to bear their own costs.”

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One would have hoped that after the Supreme Court had rendered its decision, a quietus would have been given to the litigation. But not so, as it turned out for the petitioner. He was in

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fact compelled to file a writ petition in the year 2004 seeking indulgence of this Court to seek appointment on parity with his counterparts, who were on the select list as per the result declared by respondents. The said writ petition was though filed on merits but the same was disposed of with a direction to the respondents to decide the representation of the petitioner in light of Apex Court judgments ibid .

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In the process, 10 years were consumed, and yet, petitioner was left high and dry by the impugned order dated 09.06.2014 (Annex.13) whereby, his representation was dismissed. Left with no choice, he had to knock the doors of this Court again by filing the instant petition in the year 2015 assailing the rejection of his representation.

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Having perused the impugned order, it is borne out that the same has been passed by the competent authority stating that since the petitioner was not belonging to the bunch of those candidates, who had approached the Court on or before 18.11.1999, therefore, he is not entitled to any relief. Rightly so. 14. No doubt, petitioner was on the select list of the candidates as per the result contained at Annex.3 dated 26.08.1999. Petitioner’s name is at Sr. No.315 and a candidate, who was below him was at Sr. No.317, having lesser marks was accorded appointment.

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Petitioner though deserved to be appointed on merits, but this Court is unable to grant any indulgence at this stage on the ground of sheer delay and latches. Concededly, one of the similarly situated candidates i.e. Neeraj Saxena, who approached

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this Court in the year 2003 i.e. a year prior to the petitioner was given appointment under orders of Court. However, in view of the Supreme Court’s later judgment arising out of Neeraj Saxena’s case, it was specifically held therein that case of Neeraj Saxena shall not be treated as a precedent. I am unable to treat Neeraj Saxena’s case as a precedent and on that basis to persuade myself with the plea of the petitioner to accord parity to him.

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I am also conscious that the petitioner is currently 52 years old and way beyond the upper age limit for appointment, but as already recorded in the preceding part of the discussion of the instant order, he cannot be accorded age relaxation for such a long period merely on account of pendency of the litigation before this Court, though of course, for no fault of his.

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In the parting, reference may also be had to paragraph No.11 to 13 of the Apex Court’s judgment in State of Rajasthan

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Vs. Nemi Chand Mahela & Ors.: Civil Appeal No.3873 of 2010, decided on 30.04.2019 , which is extracted hereinbelow:-

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“12. Our attention was also drawn to the case of Neeraj Saxena in whose case the writ appeal filed by the State Government against the order of the Single Judge was dismissed on the ground of delay and inaction. The Special Leave Petition against the decision of the Division Bench was also dismissed on the ground of delay. This decision of the Division Bench in Neeraj Saxena and the dismissal of the Special Leave Petition on the ground of delay does not lay down any ratio in the form of precedent. At best, the decision of the Single Judge in the case of Neeraj Saxena as in the case of Danveer Singh would apply to the specific candidates in whose case the decision would operate as res judicata. This, however, would not be a ground to negate and nullify the ratio and direction invoking doctrine of prospective overruling, applied in Kailash Chand Sharma’s case (supra), which was thereafter

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affirmed and elucidated by this Court in Manmohan Singh’s case (supra).

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13. In view of the aforesaid discussion, we hold that the candidates who had not filed writ petitions on or before November 17, 1999 would not be entitled to appointment upon recalculation of marks by exclusion of bonus marks from the marks of the selected candidates. The aforesaid direction would not apply to individual cases where the principle of res judicata would apply, i.e. wherein the decision of the Single Judge or the Division Bench has become final since it was not challenged before the Division Bench or before this Court. All other pending writ petitions and appeals, before the High Court, would be disposed of and decided on the basis of decisions in Kailash Chandra Sharma’s, Manmohan Sharma’s cases (supra) and the present matter, subject to condonation of delay, when justified and satisfactorily explained.”

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In light of the aforesaid, even the Division Bench of this Court in a subsequent case titled as State of Rajasthan & Ors.

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Vs. Ram Gopal Jagga (D.B. Special Appeal Writ No.99/2019) & other connected matters, decided on 14.02.2020 , dismissed the claim of the petitioners therein seeking belated appointment. Speaking for Division Bench of this Court (Mr. Vijay Bishnoi,J) as His Lordship was then in this Court, opined as below:

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“Recently, the Hon’ble Supreme Court in the case of State of Rajasthan Vs. Nemi Chand Mahela & Ors. reported in 2019(2) WLC (SC) Civil 299 has again emphasised that the candidates who had not filed writ petitions on or before 17.11.1999 would not be entitled to appointment upon recalculation of marks by exclusion of bonus marks from the marks of the selected candidates. In the above decision, the Hon’ble Supreme Court has also taken into consideration the judgment dated 23.01.2009 passed by the Jaipur Bench of this Court in Neeraj Saxena’s case (supra) and held that the decision in that case does not lay down any ratio in the form of precedent and also issued a direction that all the pending writ petitions and

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appeals, before the High Court, would be disposed of and decided on the basis of decision in Kailash Chand Sharma’s and Manmohan Sharma’s cases (supra).

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It is noticed that the writ petitions filed by the respondents were allowed by the learned Single Judge in terms of the decision rendered in Neeraj Saxena’s case (supra), however, in the case of State of Rajasthan Vs. Nemi Chand Mahela & Ors. (supra) the Hon’ble Supreme Court has categorically held that the decision passed in the case of Neeraj Saxena (supra) does not lay down any ratio in the form of precedent and only on this ground the impugned judgment is liable to be set aside.

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The private respondents in the special appeals were also not entitled to get any relief in the writ petitions filed by them as admittedly they did not approach this Court on or before 17.11.1999 as they filed writ petitions in the year 2002 onwards whereas the Hon’ble Supreme Court in the cases of Kailash Chand Sharma and Manmohan Sharma (supra) has categorically held that the candidates, who have approached the High Court after 18.11.1999, are not entitled to get any relief in terms of Kailash Chand Sharma’s case (supra).

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In view of the above discussions, we are of the view that the impugned judgment passed by the learned Single Judge is liable to be set aside and the writ petitions filed by the private respondents are deserves to be dismissed.

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Resultantly, these special appeal writs are allowed, the impugned judgment dated 14.08.2018 passed by learned Single Judge is set aside and the writ petitions filed by the private respondents are dismissed.”

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As an upshot, I am unable to grant any indulgence to the petitioner and to allow the petition.

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Dismissed accordingly.

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Pending application(s), if any, also stand(s) disposed of.

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(ARUN MONGA),J

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175-Sumit/-

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Whether fit for reporting : Yes / No

Satya Narayan v. State and Ors.

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Satya Narayan v. State and Ors.

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