Kusum Rathore And Ors vs State Of Rajasthan And Ors

Petitioners herein have challenged communications dated 3rd of January, 2014 (Annex.8 to 10 respectively), conveyed to them by the Joint Director, College Education, Rajasthan, Jaipur. By the impugned communications of even date, petitioners' requests of reckoning their appointment to the post of Lecturer (History) for college education from earlier date were declined. Petitioners' prayer in the representation was to treat their appointment from the date other selected incumbents lesser in merit than them were given appointment on the said post. For denial of their prayer respondent State cited reason that issuance of appointment orders is delayed due to pendency of litigation before the competent Court.

The bare necessary facts for the purpose of this writ petition are that Rajasthan Public Service Commission (for short, 'Commission') issued Advertisement No.2/2010-11 inviting applications from eligible candidates for appointment on the post of Lecturer (History) for college education. In the advertisement, total 42 vacancies were advertised with the stipulation of reservation as per prevailing rules for candidates belonging to Scheduled Castes, Scheduled Tribes and OBC category. The advertisement also envisaged horizontal reservation in favour of women, sportsmen and ex-service personnels. All the petitioners, who belong to Other Backward Class category (Non Creamy Layer), offered their candidature by submitting application forms against the advertised posts for OBC (Women) category. Upon finding their applications in order, all the petitioners were allowed to participate in the written test conducted on 13th of May, 2011 and in the result all the petitioners were declared successful. After written test, petitioners were called for interview, which was conducted from 19th of July, 2011 to 3rd of August, 2011. On 3rd of August, 2011, final merit list was declared for History subject wherein names of the petitioners were placed in the order of merit at Serial No.10, 13 & 16 respectively against OBC (Women OBC WE) category.

It so happened that before the select-list culminated into appointment, a writ petition is filed by one unsuccessful candidate Archana Sharma before the Jaipur Bench of this Court bearing No.11111/2011. In the writ petition, Archana Sharma challenged selection/appointment of women candidates belonging to OBC category against General category. At the threshold, interim relief was granted to Archana Sharma by the Court and pursuant to the interim order issuance of appointment orders in favour of petitioners were withheld by the State Government. However, 13 other incumbents who were selected, offered appointment and all of them joined their duty.

The contention of the petitioners is that the 13 other incumbents, who were appointed by the State Government, were lower in merit than all of them. Be that as it may, the challenge laid by Archana Sharma was sustained by the learned Single Judge and the writ petition was allowed on 15th of March, 2015. Being aggrieved by the order of learned Single Judge, State Government preferred intra-court appeal before Division Bench, which was registered as D.B. Civil Special Appeal (W) No.706/2013. When the appeal came up for consideration before the Division Bench, after preliminary hearing, it was admitted and the order passed by the learned Single Judge was stayed. The stay order granted in favour of State Government facilitated issuance of appointment orders in favour of petitioners and accordingly all of them were appointed vide order dated 20th of May, 2013 (Annex.6). In the order Annex.6, names of the petitioners find mention at Serial No.1, 2 & 4 respectively.

With the advent of time, the appeal preferred by the State came up for final hearing and the Division Bench at Jaipur allowed the appeal by setting aside order passed by learned Single Judge on 16th of July, 2015. The Division Bench clarified that female candidates belonging to reserved category are eligible to be placed in General merit if they secure higher marks and are meritorious to the General female candidates. Ventilating their grievances against the impugned orders, it is submitted by the petitioners that for no fault on their part, they are being put to disadvantage in the matter of seniority vis-a-vis other selected Lecturers in History, who were lesser meritorious than them. The petitioners have also urged that after adjudging their merit, it was only due to judicial intervention that their appointments were upheld and when finally the judicial proceedings have terminated in their favour, it would be unjust to deprive them from legitimate benefits of seniority, pay fixation and other service benefits, to be reckoned from the date persons junior to them have been given appointment.

As per the version of the petitioners, the communications Annex.8, 9 & 10 are arbitrary and unreasonable and dehors the sound legal principle that interim order can neither confer advantage to a litigant nor the same can put an incumbent/opponent to disadvantage if the proceedings are finally terminated in favour of opponent.

On behalf of respondents, reply to the writ petition is filed, wherein selection of the petitioners and their merit position is not disputed. Offering appointment to lesser meritorious incumbents is also accepted by the State. In the reply, essentially, the State Government has pleaded that appointment was denied to the petitioners on account of stay order granted by the Jaipur Bench of this Court. Likewise, taking shelter of the stay order, the impugned communications are also defended. It is also averred in the reply that delay in issuance of appointment orders due to pendency of the litigation and therefore they are not entitled for the benefit of seniority, fixation of pay and other service benefits.

Learned counsel for the petitioners, Mr. Kuldeep Mathur, during the course of arguments, has substantiated all the grounds raised in the writ petition. For authenticating his submissions, learned counsel has placed reliance on following decisions:

(1) S.B. Civil Writ Petition No.3247/15 (Hemlata Shrimali & Ors. Vs. State of Rajasthan & Ors. with other connected writ petitions, decided on 1st April, 2015).

(2) Division Bench decision in D.B. Civil Special Appeal No.1375/2014 (Har Karan Ram Bugalia Vs. State & Ors., decided on 29th of July, 2015).

Per contra, learned counsel for the respondent-State has canvassed with full vehemence the objections raised in the return.

I have bestowed my considerations to the arguments advanced at Bar.

There remains no quarrel that denial of appointment to the petitioners was due to judicial intervention inasmuch as despite adjudging their merit by the Commission, they were not offered appointment due to stay order granted by the Court. It is also an admitted position that the decision rendered by learned Single Judge was stayed by the Division Bench at the threshold and was finally overturned, therefore, in such a situation no fault can be attributed to the petitioners for delay in issuance of appointment orders in their favour. The maxim actus curiae neminem gravabit, which means, "an act of Court shall prejudice no one", has its full application in the instant matter, more particularly when the Government has subsequently issued appointment orders to the petitioners. The interregnum period, during which the petitioners were not given appointment is due to operation of the stay order is also admitted by the respondents. There is yet another aspect of the matter that the incumbents selected in the same selection, who were lesser meritorious than the petitioners, are given prior appointments by the Government.

In Har Karan Ram Bugalia (supra), question came up before the Division Bench that what relief should be granted to an incumbent, who stood higher in merit during the selection process when appointments have been given to lesser meritorious persons. Considering the grievances of appellant legitimate, the Division Bench observed that if the incumbent is not allowed seniority and benefits of fixation of pay from the date persons junior to him were employed, then the same would put him to disadvantage in the matter of seniority as well as pay scale qua other junior incumbents who were found lesser meritorious than him in the selection process. Therefore, in that background, the Division Bench allowed the appellant-incumbent service benefits on notional basis and inter-se seniority on the basis of merit in the process of selection.

The present case, in my opinion, is squarely covered by the decision of Division Bench and therefore, the instant petition is allowed, impugned orders of even date i.e. 3rd of January, 2014 (Annex.8, 9 & 10) are hereby quashed and set aside and the respondent-State is directed to treat the petitioners in service with effect from the date persons lesser in merit to them were appointed as Lecturer (History), College education and further grant them all the benefits of pay fixation on notional basis from that date without actual payment. The petitioners shall also be entitled for seniority of the cadre in their order of merit in strict adherence of select list drawn by the Commission.

The costs are made easy.