Mukesh Sharma vs State Of Rajasthan And Ors

The petitioner, appointed as Lower Divisional Clerk Grade- II vide order dated 24.3.2017 was working as probationer-trainee in the office of the

District Collector, Churu, when he vied for the direct recruitment for the post of Teacher Grade-III.

The petitioner steer cleared the process and was selected for the post of Teacher Grade-III Level-II (Subject English). By an order dated

5.10.2018 he was asked to join at Government Upper Primary School, Beradi, Panchayat Samiti Bali, District Pali, latest by 17.10.2018.

Having involved in various election related duties/assignments, the petitioner felt that leaving the office in midstream would not be proper and that

too, when the model code of conduct was in force. He thus, wrote a letter dated 12.10.2018 to the Development Officer, Panchayat Samiti, Bali with

a request to allow him to join by 31.3.2019. Petitioner’s said request was duly recommended by none other than the District Election Officer-the

District Collector, Churu.

Neither the petitioner nor the office of the District Collector, Churu heard anything from respondent no.5 in response to above letter dated

12.10.2018.

On 28.03.2019, another communication was sent by the petitioner requesting the respondent no.5 to extend the period of joining till 31.5.2019. This

time, the request was made in wake of impending Lok Sabha Election, 2019; that letter also bore a recommendation of the District Collector, Churu.

No communication, either accepting, rejecting or even requiring the petitioner to join forthwith, was ever issued by the respondent no.5.

The Election Officer- the District Collector, Churu thereafter sent a communication dated 17.5.2019 to respondent no.5 to permit the petitioner to

join on the post of Teacher Grade-III Level-II pursuant to appointment order dated 5.10.2018. This Court deems it apt to reproduce the letter dated

17.5.2019 written by the District Election Officer (Collector), Churu, in extenso:

“ ( )

...............................................................................................................................

- .37(1)() / /2019/9584 : 17.05.2019

,

,

- , 2016( )

- 9245-49 12.10.2018 4764-66 28.03.2019

,

..// .../ - / / /2018

05.10.2018 ,

31.05.2019

, /

/

/-

,

( )

- .37(1)()/ /2019/9585-86 : 17.05.2019 -

-

,

,

/-

,

( ) â€​

The said letter was followed by another communication dated 13.6.2019 issued by the Addl. Collector, Churu to the Chief Executive Officer, Zila

Parishad â€" respondent no.4, literally imploring that the petitioner be allowed to join the duties in furtherance of appointment order dated 5.10.2018.

The letter clearly set out the reasons for delay in relieving him.

In spite of the above noted facts, respondent nos.4 and 5 did not permit him to join the duties under the cloak that the last date of joining had since

passed.

Faced with this situation, the petitioner was constrained to approach this Court invoking Article 226 of the Constitution of India.

In response to the notices issued by this Court, reply to the writ petition has been filed by the respondents, inter alia, raising a ground that the

petitioner was requested to join by the date fixed. It is also stated in the reply that maximum period of six months can be allowed to join as stipulated in

circular dated 17.10.2015, which too can be extended by the Chief Executive Officer.

While iterating the stand taken in the reply, it was also argued that petitioner’s appointment was in District Pali and therefore, communications

sent by the District Collector, Churu or his orders were not binding upon the respondents no.4 and 5, who are in District Pali. The District Collector,

Churu is not having any administrative control over them, was the pretext taken for not permitting the petitioner to join.

Mr. Beniwal, learned AAG vehemently argued that petitioner was selected from open category and if he was at all serious or concerned about his

service as Teacher Grade-III, he ought to have resigned from his earlier services to join at the new assignment as Teacher Grade-III in Government

Upper Primary School, Beradi, Panchayat Samiti Bali, District Pali.

During the course of hearing on 13.2.2020, it was argued that after about 15 months the said post might not be available to be occupied. A

direction was, thus, given to file an affidavit as to whether the post of Teacher Grade-III Level-II, which was offered to the petitioner, vide order

dated 5.10.2018 is lying vacant in Panchayat Samiti Bali, District Pali or not.

Pursuant to the said direction, an additional affidavit has been filed by the respondent no.5, inter alia, indicating that said post has been upgraded to

Head Master and thus, it cannot now be occupied by the petitioner, whose appointment was as Teacher Grade-III Level-II.

In rejoinder, Mr. Bijarnia, learned counsel for the petitioner responding to the additional affidavit filed by the respondent no.5, argued that the order

dated 5.10.2018 was an order of appointment as Teacher Grade-III Level-II (Subject English) and incidentally, it contained a place of posting at

Government Upper Primary School, Beradi, Panchayat Samiti Bali, District Pali and as such, even if it is assumed that the post has been filled, the

petitioner cannot be denied joining as Teacher Grade-III, as his appointment, cannot be made dependent upon the vacancy in a particular school.

He argued that denial of extension to the petitioner in the facts of the present case was illegal and thus the facts of the case call for a direction to

the respondents to provide him another place of posting.

Heard.

Indisputably, the petitioner was working with the District Collector, Churu and was discharging his duties for the work of Elections. The

communications on record sent by the Office of the District Election Officer and the District Election Officer himself leaves no room for doubt that

the petitioner was discharging his duties in the work related to elections. Finding his services to be necessary in wake of impending Vidhan Sabha and

Lok Sabha Elections, the Election Officer, i.e., the District Collector, Churu did not relieve him and at the same time, sent communication after

communications to the respondents nos.4 and 5 to extend the period of joining.

The respondents in their reply have not disputed the position that the District Election officer and his Office has sent communications dated

12.12.2018, 28.3.2018, 17.5.2019 and 13.6.2019.

To the utter surprise of this Court, the respondents No.4 & 5 have not even responded to the above letters â€" they neither extended the period of

joining nor have they refused so to do and kept the petitioner in lurch.

This Court is upset to go through the reply and witness the attitude of respondents no.4 and 5, who in their reply have gone to the extent of stating

that instead of waiting for the relieving order, the petitioner should have resigned to join as teacher at Bali. It will not be out of place to reproduce the

part of the reply, which showcase their callousness:-

“3………..It is respectfully submitted in this regard that first of all mere moving of application for extension of joining time and the same being

recommended by District Election officer, Churu will not create any right in favour of the petitioner for joining on the post of Teacher Grade-III Level

II. Furthermore, the appointment of the petitioner on the post of Teacher Grade III Level II is from open direct recruitment category therefore the

petitioner was not required to be relieved by the District Election officer, Churu and the petitioner could very well join on the post of Teacher Grade

III Level II after tendering the resignation to the competent authority from the post of Lower Division Clerk. It is also worthwhile to submit here that

as per condition no.7 of the appointment order a person can join on the post of Teacher Grade II Level II only after submission of the resignation

which must be accepted by the competent officer in the previous place of working. It is submitted that the petitioner has not placed on record any

such document which reveals that the petitioner has tendered the resignation but the same was not accepted by the District Election Officer, Churu

therefore the petitioner has moved the application for extension of joining time.â€​

This Court records its expression of anguish about the attitude of the respondents nos.4 and 5, who instead of extending the period of joining, have

not even cared to respond to the communications sent by the District Collector, Churu. Their stand that his orders are not binding upon them, as they

were serving in District Pali and not in District Churu, evinces official apathy and levity in the Government Departments.

The stand taken by the respondent â€" State that the Chief Executive officer could extend the period upto six months only is equally arbitrary,

given the fact that on 12.10.2019, when the petitioner with the recommendation of the Collector requested to extend the period followed by another

communication dated 28.3.2019, the period of six months’ purportedly available to Chief Executive Officer, Bali was very much at hands.

Instead of extending the period of joining, the respondents nos.4 and 5 remained tight-lipped and a silent bystander and now they have taken a

stand, rather a ruse that such period cannot now be extended, as maximum period of six months has since lapsed.

The approach of respondents nos.4 and 5 has been totally irresponsible. It is disturbing that they even want a responsible person to leave the

important assignment of election abruptly, without waiting for relieving order and/or by simply resigning. Such cases breed indiscipline in the working

of the State.

They did not even show a courtesy to give a reply â€" even a letter showing their inability to extend the period.

Most importantly, till today petitioner’s appointment has not been cancelled by a competent authority, even under the garb of non-joining.

Non-availability of vacancy in the school where the petitioner was supposed to join cannot be a ground to non-suit the petitioner. His

selection/appointment was to the post of a Teacher Grade-III Level-II and the same was not to particular school; school at Berdi, Panchayat Samiti

was a posting only.

As an upshot of the discussion aforesaid, the present writ petition is allowed with the following directions:

(i) The Chief Executive Officer, Zila Parishad, Pali (respondent no.4 herein) is directed to provide appropriate posting to the petitioner as Teacher

Grade-III Level-II (Subject English) in Pali District within a period of four weeks from today;

(ii) While issuing the order of appointment and sending a copy thereof to the petitioner, he shall provide at least 15 days’ time for joining;

(iii) The petitioner shall be deemed to have joined on 17.1.2018 and his seniority as Teacher Grade-III Level-II shall be reckoned from such date. He

will not be entitled for any monetary benefits for the period between 17.10.2018 and actual date of joining.

(iv) The respondents nos.4 and 5 shall pay cost of Rs.10,000/- each to the petitioner, for undue harassment he had to undergo, because of their

approach of not even responding to the communications sent by the District Election Officer- District Collector, Churu;

(v) Above cost of Rs.10,000/- will be tendered by respondents No.4 and 5 in the form of Demand Draft(s) drawn in the name of the petitioner. The

Demand Drafts be furnished to the Registrar (Judl.), Rajasthan High Court, Jodhpur.

(vi) Registrar (Judl.) shall keep the same in safe custody, until the expiry of limitation for filing appeal; whereafter the same will be handed over to

petitioner/his counsel, subject of course to any order passed by a higher Court in an appeal or otherwise.

The stay application also stands disposed of accordingly.