Om Kanwar vs State of Rajasthan through Secretary & ORS

Civil Misc. Application No.602/2014:

For the reasons stated in the application delay in filing the appeal is condoned.

Special Appeal (Writ) No.1380/2014:

The writ petition filed by the appellant has been dismissed by the learned Single Judge noting that the controversy concerning 60% marks at

RTET was pending before the Supreme Court and thus no direction could be issued to give appointment to the appellant.

Unfortunately, the learned Single Judge has overlooked the fact that no such issue arose for consideration for the writ petition filed by the

appellant. No issue of the appellant not having 60% marks at RTET was involved. The grievance of the appellant pertained to candidates having

lesser marks than him being retained in service as Teacher Grade-III (Level-II).

It would be of no use to remit the matter to the learned Single Judge for the reason on 24th February, 2012 an advertisement was issued inviting

applications from eligible candidates to fill up notified posts of Teacher Grade-III (Level-I and Level-II) in different Zila Parishads. As per the

applicable rules merit list was prepared giving 20% weightage to the marks obtained by the applicants in the Rajasthan Teacher Eligibility Test (for

short, ''RTET'') and 80% weightage at the written examination conducted by the department. As per the applicable rules minimum marks for

eligibility was 60% at RTET examination.

After the results were declared writ petitions were filed questioning the correctness of options indicated to some questions at the examination

conducted by the department as also the examination conducted by RTET. Not only were the marks at RTET revised but even the marks obtained

at the departmental examination were revised due to corrections made qua some questions. This affected large number of persons, who on the

basis of the marks obtained at the RTET and the department initially, were ousted from the select list upon revision in the marks.

These persons filed writ petitions. The writ petitions were decided by a learned Single Judge vide order dated 19th December, 2013, lead

matter being S.B. Civil Writ Petition No.15788/2013, Hemendra Kumar Jangid & Ors. vs. State of Rajasthan & Ors.

Noting that the eligibility condition was 60% marks obtained at RTET, the learned Single Judge held that those who had obtained less than 60%

marks at RTET, post revision, would be disqualifying for being appointed as a Teacher. Those who retained more than 60% marks in the RTET,

with reference to their revised marks after RTET corrected the result as also the new marks assigned by the department and would be not included

in the revised merit list were directed to be considered for retention in service if they were earlier serving in the State Government and had resigned

to join the post of Teacher Grade- III.

To put it simply, the learned Single Judge directed that the appointments would be in order of merit as per the revised marks obtained, but qua

those who were in service and had resigned, they would be considered for retention in service.

The decision of the learned Single Judge was not interdicted by the Division Bench evidenced vide order dated 2nd December, 2014 in D.B.

Special Appeal (Writ) No.1484/2013.

When the department proceeded to enforce the revised result another round of litigation ensued. Large number of writ petitions were filed. They

were decided by the learned Single Judge on 18th November, 2014, lead matter being S.B. Civil Writ Petition No.10622/2014, Ramdhan

Kumawat vs. State of Rajasthan & Ors.

In view of the fact that by the time the learned Single Judge decided the matter, Teachers were appointed in the year 2013 and had continued,

but ouster from service stared them in their face on account of their merit position being lowered, the learned Single Judge issued direction No.viii

as under:

(viii) Such of the candidates who are already appointed but who do not figure in the revised merit list, may not be ousted from the service, if there

is noting adverse against them on record and if there are sufficient vacant posts in the respective Zila Parishads for the concerned subject, and as

far as possible they shall be accommodated against such vacancies by placing them at the bottom of the revised merit list of the selected

candidates.

Suffice it to highlight that as per direction No.viii the learned Single Judge directed that the candidates already appointed but who do not figure

in the revised merit list, may not be ousted from service if there is nothing adverse against them on record and if there are sufficient vacant posts in

the respective Zila Parishads. Meaning thereby, the right of the appointed candidates who were under threat of ouster from service on account of

revised merit list was not conferred as an absolute right. It was subject to availability of sufficient posts, and this could only be if the candidates in

the merit list being offered appointments did not join.

Simply following the decision dated 18th November, 2014, another learned Single Judges decided a few other writ petitions, which decision

dated 3rd January, 2014 came up for consideration before a Division Bench in D.B. Special Appeal (Writ) No.35/2014 and connected appeals.

Needless to state the Division Bench had to consider the legality of the decision dated 18th November, 2014 in Ramdhan Kumawat''s case

(supra).

Noting direction No.viii issued by the learned Single Judge, in respect whereof the candidates who were offered appointments and were

working and faced a threat of ouster from service, the Division Bench passed directions in para 16 of its decision dated 8th December, 2014 as

under:

We do not find any error of law and agree with the reasoning given by learned Single Judge in Ramdhan Kumawat V/s The State of Rajasthan

& anr. (supra), pursuant to which the results have to be revised after fresh evaluation of answers. The revision of select list is thus not complete and

the process is still open. In the circumstances, in order to allay any apprehension and to protect the interest of the appellants-petitioners, 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. We direct that at this stage, they will not be ousted from service. The

termination orders passed, if any, consequent to the orders dated 30.8.2013, are set aside. The directions given by learned Single Judge in

Ramdhan Kumawat V/s The State of Rajasthan & anr. (supra), namely, that the Expert Committee will issue model answer keys afresh and that

the results will be revised in accordance with such keys, will be given effect to, leaving the question of its correctness open. The State Government

will be at liberty to pass fresh orders, after revising the results and adjusting equities protecting the interest of the appellants-petitioners, 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.

The Division Bench directed that at this stage Teachers who were already appointed would not be ousted from service. The termination orders

dated 30th August, 2013 were set aside. Adjusting equities the Division Bench held that these candidates i.e. the ones who were given

appointment but as a result of the revision in the marks would be liable to be ousted from service would be retained in service and would be placed

at the bottom of the revised merit list.

The decision of the Division Bench has attained finality.

The next round of litigation commenced when orders terminating the service of some Teachers who were already appointed and some who

faced the threat of termination approached this Court. Vide order dated 19th May, 2017 the learned Single Judge disposed of the writ petitions by

putting a cat amongst the pigeons by highlighting that the expression: ""at this stage"" in para 16 of the decision of the Division Bench would mean till

the process of filling up of the vacancies was over. It was held: ''Mr. Ladrecha invited attention of this court towards para No.14 of the judgment

of Division Bench and conteded that the Division bench while protecting petitioners'' right had consciously used the expression ''at this stage''.

According to him, such expression should be read to mean, ''till the process of filling up the vacancies pursuant to Ramdhan Kumawat''s case is

over''.

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 appellants-petitioners, 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.

The appellant who came up in the merit list post revision of the answers thus cannot make any grievance that persons who have obtained lesser

marks than him in the revised merit list are continuing in employment on the strength of the original merit list, for the reason these persons had their

employment saved in view of the earlier decisions noted hereinabove. This is the view taken by the learned Single Judge in the decision which have

been impugned in this appeal.

The appeal is dismissed.