Kheta Ram vs State of Rajasthan and Others

Sandeep Mehta, J.

Heard learned counsel for the parties.

By way of the instant writ petition, the petitioner has prayed for the following reliefs:-

"(i) direct the respondents to allow the petitioner the pension scheme which was applicable on 15.9.2003. To count seniority of the petitioner from 15.9.2003 when similarly situated persons from the merit list have been appointed.

(ii) direct the respondents to pay salary of about 8 months i.e. from September 2003 to March, 2004 with six percent interest.

It is, therefore, prayed that a declaration may be made that Circular date 28.1.2004 is directory qua the petitioner and as such the petitioner is entitled to receive the benefits arising out of the Rajasthan Pension Scheme Rules, 1996.

(iii) Any other appropriate writ order or direction, which this Hon''ble court thinks fit, may kindly be passed in favour of the petitioner.

(iv) Cost of the writ petition may kindly be allowed."

Facts in brief are that the petitioner passed Physical Training from Laxmi Bai National Institute of Physical Education, Gwalior (for short'' referred to herein after as ''the institute'') and thereafter applied for the post of Physical Teacher Grade-III in pursuance of advertisement dated 28.7.2003 issued for recruitment to the said post by the Director, Secondary Education, Jaisalmer. The petitioner qualified and was selected for being appointed in the aforestated selection process being the only candidate in the category of Ex-military personnel/OBC. The other persons selected along with the petitioner were given appointment vide an office order Annex.2 dated 15.9.2003, however, the petitioner''s mark-sheet was sent for verification to the institute, from where a communication Annex.3 dated 17.12.2003 was received verifying the mark-sheet of the petitioner. Thereafter, the petitioner was issued an appointment order Annex.4 dated 6/7.4.2004. The petitioner was asked to join duties on 21.4.2004 in pursuance to the said order.

In the interregnum, the State Government issued a notification Annex.1 whereby a new contributory pension scheme was floated in place of the Rajasthan Civil Services Pension Rules, 1996, which were made inapplicable to the Government servants appointed on or after 1.1.2004.

It is averred in the writ petition that other persons who appeared in the same selection process were given appointment orders on 15.9.2003 but the petitioner''s appointment order was delayed under the pretext that his mark-sheet was to be verified. Owing to this lethargic action of the respondents, the appointment order of the petitioner was belatedly issued in April, 2004 and as a consequence, he has been deprived seniority in the cadre and also from the benefit of pension scheme available to such State Government employees who were inducted in services prior to 1.1.2004.

It is averred in para No. 10 of the writ petition that a merit list was prepared for District Jodhpur for the selection process of even date wherein the candidates who had cleared physical training course from the same institute as the petitioner, were given appointment and their mark-sheets were sent for verification thereafter. An extract of the list published by the District Education Officer (Secondary), Jodhpur has been placed on record of the writ petition as Annex.5 dated 6.9.2003.

Learned counsel for the petitioner submitted that the action of the respondents in deferring and delaying the appointment of the petitioner by nearly 7 months and giving him appointment from April, 2004 is illegal and arbitrary. He, therefore, prayed that the petitioner''s appointment should be directed to relate back to 15.9.2003. He submitted that the petitioner shall not claim any seniority over the other candidates if the said prayer is accepted. He contended that had the petitioner been appointed in the year 2003, for which he was entitled as of right, he would have gained the benefit of the pension scheme of which he has been illegally deprived because of the laxity committed on the part of the respondents. He further submitted that the verification report of the petitioner''s mark-sheet was also received from the institute on 17.12.2003 but thereafter also, the appointment order was issued belatedly causing undue loss to the petitioner. He contended that the persons similarly situated to the petitioner gained access and have been benefited by the pension scheme upon being given appointment on 15.9.2003 but the petitioner has been deprived of the same. This action of the respondents is grossly arbitrary and violative of the fundamental right of equality guaranteed under Article 14 of the Constitution of India. He thus prayed that the writ petition deserves to be accepted.

Per contra, learned Addl. Govt. counsel, referring to the reply filed on behalf of the State, contended that the action of the respondents in sending the mark-sheet of the petitioner for verification was perfectly justified. The verification was received belatedly and that is why the petitioner''s appointment order could not be issued in time. She further submitted that an interim order had been granted by this Court in other writ petitions staying the operation of the order dated 27.8.2003 and that is why the matter was delayed. She urged that the petitioner was justifiedly given appointment after the writ petition No. 5207/2003 was decided by this Court on 9.3.2004 and thus, the respondent authorities are not at fault that the petitioner was deprived of the appointment in September, 2003 and was granted appointment after 1.1.2004. She, therefore, urged that there is no force in the writ petition and the same deserves to be dismissed.

Heard and considered the arguments advanced at the Bar and perused the material available on the record.

The specific ground raised by the petitioner in para No. 10 of the writ petition that the other candidates who had qualified from the same institute as the petitioner, were granted appointments by the District Education Officer, Jodhpur vide order Annex.5, is not disputed by the respondents. In the cases of those persons, the appointment orders were issued immediately on their selection and the verification of the mark-sheet was carried out thereafter. This was the apposite mode which should also have been adopted by the District Education Officer, Jaisalmer as well. The unreasonable and unjust action of the respondent authorities in failing to issue an appointment to the petitioner along with other candidates who were selected in the same process and delaying the petitioner''s order to April, 2004 was totally unjustified and arbitrary. The petitioner should have been granted provisional appointment and the verification of the mark-sheet/degree could have been carried out thereafter. Due to lethargic and indifferent attitude of the respondents in granting timely appointment to the petitioner, the petitioner lost the opportunity to opt for the pension scheme which was applicable to the State Government employees who were inducted in service before 1.1.2004.

In this view of the matter, the action of the respondents has to be struck down as being arbitrary, unreasonable and infringing the petitioner''s fundamental right of equality.

As a result of the aforesaid discussion, the instant writ petition deserves to be and is hereby allowed. It is hereby directed that the petitioner shall be treated as having been appointed notionally to the post of Physical Teacher Grade-III w.e.f. 15.9.2003, which is the date on which other similarly placed candidates selected in the same selection process as the petitioner were given appointments. He shall be entitled to notional financial benefits from that date. However, the petitioner shall not be entitled to claim seniority from that date because his counsel has given up the claim of seniority while arguing the matter. The petitioner shall also be entitled to opt for the benefit of the pension scheme admissible to the Government employees before coming into force of new scheme Annex.1 which was introduced for the Government servants inducted in service on or after 1.1.2004.

No order as to costs.