Ravindra Kumar Poswal And Ors. @APPELLANT@Hash State Of Rajasthan

Learned counsel for the petitioner, at the very outset, submits that the controversy raised in the instant writ application stands resolved in view of the

adjudication made by a Coordinate Bench of this Court in the case of Lokendra Singh v. State of Rajasthan & Ors., decided on 30th November, 2017,

observing thus:

“This Court finds that the Division Bench had considered the similar issue which is involved in the present batch of writ petitions. The petitioner in

that case had also participated for the post of Accountant/Junior Accounts/Tehsil Revenue Accountants (TRA) against a direct recruitment quota by

the recruitment process held by RPSC as per the Rajasthan Subordinate Accounts Service Rules, 1963, however, the parent department of the

petitioner where he was working as LDC, did not grant him a certificate that he was substantively appointed. The plea raised by the petitioner was

that his appointment was substantive and cancelling of appointment of petitioner was illegal. The Division Bench had held that an employee should be

treated as holding a post in substantive capacity and if a person is appointed after due selection even on temporary post, it was to be taken that he is

holding the post in substantive capacity.

The Apex Court in the judgment cited by learned counsel for the respondents, Mr. Rajendra Prasad, in AIR 1989 Supreme Court p. 38 (Municipal

Corporation of Delhi Vs. Gurnam Kaur), has dealt with the issue where casual expressions are made and how the judgments are treated as

pronouncement of law and which are not part of ratio decidendi and are treated as obiter dicta and are not authoritative.

In the opinion of the Court, the case cited by the learned counsel for the respondents has no application and the Division Bench of this Court has dealt

with the similar issue and it has recorded its finding after considering the entire submissions of both the parties. The Division Bench also relied upon a

DB Judgment of this court in the case of Rajasthan High Court Private Secretaries and Stenographers’ Association Vs. The State of Rajasthan &

ors. (D.B.Civil Writ Petition No.2705/1988), decided on 12.12.1988. The counsel for the respondent-RPSC has relied upon the judgment of Punjab &

Haryana High Court in the case of Smt. Sunita Devi Vs. State of Punjab & Anr., (S.B.Civil Writ Petition No.9694/2009), decided on 05.02.2014.

The Court in the said case was concerned with the date on which the eligibility of the candidate, who was applicant for a post, was to be considered.

The said case cited by the learned counsel for the respondent does not cover the controversy which the present Court is required to decide about

status of the petitioners whether they were holding the post substantively or not.

In the opinion of the Court, the action of the respondents in treating the petitioners not holding a post on substantive basis is wrong and petitioners have

illegally been deprived from consideration of their cases for appointment against 12.5% posts of Junior Accountant to be filled by direct recruitment

from the Ministerial Staff of the Department of Government. The Condition of the respondents that since the petitioners were not confirmed and they

were not holding lien on the post, on which they were appointed, is the wrong interpretation of the rules and as such, the petitioners have illegally been

deprived from their fair right of consideration for appointment.

The Court finds that the persons who have undergone the method of making direct recruitment by way of due selection by recruiting agency against

substantive vacancies, cannot be treated as not substantively appointed and merely, if no confirmation order was issued, at the time of filing

applications, such candidates cannot be rendered ineligible for participating against direct recruitment quota for the post of Junior Accountant to be

filled by Ministerial Staff of the department of government.

In the result, the writ petitions succeed and the respondents are directed to treat the petitioners eligible against 12.5% posts of Junior Accountant in

direct recruitment quota as a Ministerial Staff of the department of government holding a post in the cadre substantively and if the petitioners are

found in the merit and are otherwise suitable, their case may be considered for appointment. The said exercise shall be undertake by the State

Government within a period of one month from the receipt of the copy of this order.

 The writ petitions are, accordingly, allowed.â€​

 Counsel for the petitioner further urged that instant writ application be also disposed off in terms of the adjudication in the case of Lokendra Singh

(supra), which has also been relied upon for the purpose of adjudication in the case of Balram v. State of Rajasthan & Ors.: S.B. Civil Writ Petition

Number 14132/2017, decided on 11th January, 2018, after affording opportunity of hearing to the State-respondents, who did not dispute the factual

matrix aforesaid.

In view of the above, instant writ application stands disposed off in terms of the order in the case of Lokendra Singh (supra).