Laxman Singh @APPELLANT@Hash State of Rajasthan & Ors.

The petitioners have preferred this writ petition under Article 226 of the Constitution of India claiming the following reliefs:

“(a) By an appropriate writ, order or direction in the nature thereof, the impugned order dated 15.09.2017 (Annex.1) passed by respondent

Director, Department of Animal Husbandry, Rajasthan may kindly be declared arbitrary, illegal and violative of Article 14, 16, 21 and 311(2) of the

Constitution of India and same may kindly be quashed and set aside and consequently petitioners may kindly be allowed to continue on the post of Live

Stock Assistants, at respective place of posting, with all consequential service benefits, by treating appointment of petitioner valid and regular.

(b) By an appropriate writ, order or direction in the nature thereof, theimpugned revise merit list dated 08.09.2017 (Annex.13), released by the

respondents may kindly be interfered to the extent of not considering names of petitioners and consequently the respondents may kindly be directed to

include the name of petitioners in the said list and accordingly appointment of petitioners made in pursuance to previous merit list, may kindly be

directed to be restored and be protected.

(c) By an appropriate writ, order or direction in the nature thereof, therespondents may kindly be restrained from dispensing with services of the

petitioners on the basis of impugned order dated 15.09.2017 (Annexure-1), and on the basis of revised merit list dated 08.09.2017 (Annexure-13)

passed by the respondent No.2 and appointment of petitioners may kindly be directed to be protected on the basis of original merit list/waiting list, issud

by the respondents.

(d) Or in alternate, the impugned revised merit list dated 08.09.2017 (Annex.3), issued by the respondents may kindly be declared illegal and be

quashed and set aside to the extent of deleting names of petitioners and inclusion of newly selected candidates, if substituted in place of petitioners

being in violation of principles of natural justice and old merit list issued vide dated 03.06.2015 (Annexure-8) may kindly be directed to be restored, to

protected service of petitioners.

(e) Any other appropriate order or direction, which this Hon’ble Courtconsiders just and proper in the facts and circumstances of this, may kindly

be passed in favour of the petitioners.â€​

The petitioners were selected and appointed on the post of Live Stock Assistant in pursuance of recruitment, 2013 and have been discharging their

services since last 3 to 4 years. The respondents after four years of selection, have revised the select list and on account of such revision, a common

impugned order dated 15.09.2017 has been passed by the respondent No.2. All the petitioners have, after completion of two years of probation, been

regularized and working in different Veterinary Hospitals.

Learned counsel for the petitioners Mr. S.P. Sharma assisted by Mr. Kaushal Sharma, Advocate, makes a limited prayer that since the petitioners

after undergoing the probation period, have already been regularized and they have been discharging their duties from last 3 to 4 years, therefore, in

light of the precedent law, since they have not misled or given any false information or have done an act which would illegally induce the respondents

to give them appointment, therefore, they need to be protected.

Learned counsel for the petitioners states that the first merit list was issued in the year 2013 and in lieu of such list, the petitioners were given

appointment and thereafter, on completion of two years’ probation period, they were made permanent. It is further contended that any revision

after four years would entitle the petitioners to be protected by the shield of Article 311(2) of the Constitution of India, particularly, in light of the fact

that the petitioners were meritorious and eligible at the relevant time and they did not provide any wrong information or they did not create any

circumstance which would cause their wrongful appointment.

In support of his contentions, learned counsel for the petitioners has relied upon the judgment of Hon’ble Apex Court in Vikas Pratap Singh &

Ors. Vs. State of Chhattisgarh & Ors. (Civil Appeal Nos. 5318-5319 of 2013 in S.L.P. (C) Nos.26341- 26342 of 2011) decided on 09.07.2013, the

operative portion of which, is reproduced hereinbelow:

“26. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent-State for more than

three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also

adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation

of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to

the candidates selected qua the revised merit list.

Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The

candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.â€​

Learned counsel for the petitioners has further relied upon the judgment of Hon’ble Apex Court in Rajesh Kumar & Ors. Vs. State of Bihar &

Ors. reported in AIR 2013 SC 2652.

The relevant portion of the judgment reads as under:

“19. In the result, we allow these appeals, set aside the order passed by the High Court and direct that -

(1) answer scripts of candidates appearing in 'A' series of competitionexamination held pursuant to advertisement No. 1406 of 2006 shall be got re-

evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) CN Sinha and Prof. KSP Singh and the observations made in

the body of this order and a fresh merit list drawn up on that basis.

(2) Candidates who figure in the merit list but have not beenappointed shall be offered appointments in their favour. Such candidates would earn their

seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit

whatsoever.

(3) In case writ petitioners-respondent nos. 6 to 18 also figure in themerit list after re-evaluation of the answer scripts, their appointments shall relate

back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or

other incidental benefits.

(4) Such of the appellants as do not make the grade after reevaluation shall not be ousted from service, but shall figure at the bottom of the list of

selected candidates based on the first selection in terms of advertisement No.1406 of 2006 and the second selection held pursuant to advertisement

No.1906 of 2006.

(5) Needful shall be done by the respondents â€" State and the StaffSelection Commission expeditiously but not later than three months from the date

a copy of this order is made available to them.â€​

Learned counsel for the petitioners has also placed reliance on the judgment of Hon’ble Division Bench of this Court in State of Rajasthan &

Ors. Sandeep Kumar Bishnoi & Ors. (D.B. Civil Special Appeal (Writ) No.690/2017), decided on 05.09.2017. The relevant portion of the judgment

reads as follows:

“15. The expression: ‘at this stage’ in para 16 of the D.B. decision forms part of a sentence which reads: ‘We direct that at this stage

they will not be ousted from service’. The expression: ‘at this stage’ would mean the time when the Division Bench passed the order. It

simply means that those who had been appointed would not be ousted from service. This is evident by the last sentence of para 16 which reads:

‘The State Government will be at liberty to pass fresh orders, after revising the results and adjusting equities protecting the interest of the

appellantspetitioners, to the extent that they will not be ousted from the select list and will be placed as far as possible at the bottom of the revised

select list’. Further, in the preceding part of the same paragraph, the Division Bench has held: ‘In the circumstances, in order to allay any

apprehension and to protect the interest of the appellantspetitioners, who were appointed, and are under constant threat on the revision of lists under

directions of the Court, without any fault attributed to them, we find it appropriate to quash the order dated 30.8.2013 passed by the Secretary and

Commissioner, Gramin Vikas and Panchayati Raj Department (Panchayati Raj Primary Education), Government of Rajasthan, Jaipur, to the extent

that it directs termination of services of those persons, who were ousted from selections on the declaration of the first revised results.’

This view appears to be influenced by the decision of the Supreme Court reported as 2013(4) SCC 690, Rajesh Kumar & Ors. vs. State of Bihar

& Ors. in which candidates as per the original merit position being offered appointments had joined. Upon re-evaluation of the marks they became

liable to be removed since their merit position was lowered. The Supreme Court directed retention of said persons in service.

Under the circumstances, correcting the view taken by the learned SingleJudge we dispose of the appeals directing that those who were offered

appointment pursuant to the advertisement in question as Teachers and are continuing to work as Teachers would not be ousted from service.â€​

Learned counsel for the respondents Mr. Vikas Choudhary, Assistant to Additional Advocate General Mr. S.S. Ladrecha, refutes the submissions

on the ground that after appointment of the petitioners pursuant to their participation in the recruitment process initiated for the post of Live Stock

Assistant, S.B. Civil Writ Petition No.8388/2015 titled as Mukesh Kumar Choudhary & Ors. Vs. State of Rajasthan & Ors, was filed and by an order

dated 12.06.2015 passed by this Hon’ble Court at Jaipur Bench, the answering respondents were directed to consider the case of the petitioners in

the light of the order passed in the case of Smt. Megha Shetty Vs. State of Rajasthan & Ors. (D.B. Civil Special Appeal (Writ) No.170/2013 and

other connected special appeals, decided on 26.07.2013). The issue involved in the case of Smt. Megha Shetty (supra) was migration of reserved

category candidates to other categories on the basis of their merits while applying the vertical and horizontal reservation policy in accordance with the

constitutional mandate.

Learned counsel for the respondents further submitted that Mukesh Choudhary and others filed S.B. Civil Contempt Petition No.784/2015, wherein

it is stated that the last selected candidate of General (Female) category has secured 50.735 marks, whereas, the last candidate of OBC (Female)

category who has not taken concession other than fee and age and secured more marks than the last selected candidate of General (Female)

category has been given appointment against the post meant for OBC (Female) category, whereas, her appointment should be made against the

category of General (Female) and the next meritorious candidates of OBC (Female) category should be given appointment against the category of

OBC (Female) and if same would have been done, the aforesaid petitioners would have been selected as the post of OBC will be filled by the OBC

(Male) category. Reliance was placed on the circular dated 04.03.2014 issued by the Department of Personnel. It is submitted that during pendency of

the said contempt petition, in order to ensure compliance of the order passed and directions issued by the Hon’ble Division Bench in Megha

Shetty’s case (supra) and Hon’ble Single Judge in Mukesh Choudhary’s case (supra), revised result was declared on 05.10.2016 and the

same was placed before the Hon’ble Court of Jaipur Bench on 19.11.2016 in the contempt petition.

After hearing learned counsel for the petitioners as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court

is of the opinion that the petitioners have successfully undergone the selection process and are efficiently serving the respondents State for more than

three years and if their services are terminated on account of revised merit list then it shall create a havoc with their lives and their right to livelihood.

This Court also takes note of the fact that it will be highly unjust and grossly unfair to the petitioners who are innocent appointees of an erroneous

evaluation of the State. It is also seen that the petitioners’ continuance in service would neither give any unfair advantage to the petitioner nor

cause undue prejudice to the candidates selected qua the revised merit list, the same is the purport of the precedent law cited above.

In this view of the matter, the present writ petition is allowed and the impugned order dated 15.09.2017 is hereby quashed and set aside. The

respondents are directed to place the petitioners at their respective place in their seniority list.