Smt. Narmda Devi & Ors. @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:-

“(i)The entire selection process undertaken in pursuance of the advertisement (Annex-1) by Municipal Board, Khudala, Falna may kindly be

quashed and set aside.

(ii)The appointment orders for the post of Safai Karamchari of respondent no.4 to 12, which names are shown in select list dated 05.02.2015 (Annex-

8) may kindly be quashed and set aside.

(iii)The respondents be directed to consider the candidature of the petitioners for the post of Safai Karamchari pursuant to the advertisement (Annex-

1).

(iv)Any other appropriate order or direction which this Hon’ble Court deems fit and proper may kindly be passed in the favour of the petitioners.

(v)Cost of the writ petition may kindly be awarded to the petitioners.

The brief facts as noticed by this Court are that the respondents had invited applications for the post of Safai Karamchari and the recruitment in

question was in Khudala Falna where 22 posts were advertised in the advertisement dated 25.5.2012. The guidelines for the recruitment were also

issued. The selection process was initiated in which there were 106 candidates who were declared as eligible, out of which 22 persons in the first

phase and 12 persons in the second phase were declared successful. The proceeding was re-initiated on account of the same having not been

approved by the Chairman and Vice Chairman and, thus, the fresh process of selection was initiated vide advertisement dated 20.10.2014 whereby the

lottery of the eligible candidates was decided to be held on 29.10.2014. The lottery could not be held on the stipulated date on 29.10.2014 and it was

undertaken on 5.2.2015 whereby 39 persons were selected out of which 22 persons have been given appointment.

Shri Rajesh Parihar, counsel for the petitioners has pointed out specific irregularities in the process which are as follows:-

“* In the first instance, one of the favoured persons of the respondent authorities, namely Sanjay Kumar S/o Baksoor Ram, respondent no.12 in the

present writ petition, who has neither filled the application form in pursuance of the advertisement (Annex-1), nor he has given any interview before

first phase of the selection process, but surprisingly, when the appointment list which is too by lottery system, his name figured at serial no.24 and he

has been given appointment.

* The another example is of Smt. Leela Devi W/o Manoharlalwho is respondent no.5, which application form was rejected in absence of appropriate

experience certificate and reason of her rejection is specifically stated in the list prepared by the respondent Municipal Board at serial no.34, despite

that her name is surprisingly appeared in the select list at serial no.17.

* Similarly, one Badaram S/o Dungaram Choudhary(respondent no.6) whose name is mentioned at serial no.36 in the list of 103 persons and his

candidature was rejected on the ground that he is not having the registered marriage certificate and he didn’t have any experience of Safai Work,

but surprisingly his name was also appeared at serial no.10 of the select list. Besides that, as per the guidelines issued by the State Government,

Badaram belongs to Other Backward Class and as such, he cannot be appointed in the first phase on the post of Safai Karamchari while ignoring the

available candidates from the downtrodden community like the petitioners.

* Further, Smt. Meena Devi, Smt. Manju Devi, Bablu, Smt.Sushila Devi and Smt. Sonu Devi (being respondent No.7 to 11), their names mentioned at

serial no.38, 53, 56, 61 and 103 in the list of 103 persons and their application forms were also rejected on one ground or another by the respondent

authorities. But surprisingly, their names were also mentioned in the select list at serial no.15, 12, 8, 13, 23 in the select list and granted appointment to

the post of Safai Karamchari.â€​

Counsel for the petitioners has further shown that there was lot of dispute regarding experience certificates issued to the candidates in question and

also in other conditions like disqualification pertaining to the third child and other eligibility criteria as prescribed in the advertisement. Counsel for the

petitioners has also stated that the respondent have basically gone wrong in allowing the persons who were disqualified for participation in the lottery

and such disqualified persons are holding the appointments devoid of rules and, thus, cannot be permitted to continue with the respondents. Counsel for

the petitioners has shown the interim orders passed by this Court which read as follows:-

“(1) 09.09.2015

In the meantime, the respondents are restrained from issuing any appointment orders regarding 12 vacant posts of Safai Karamchari in Municipal

Board, Khudala Falna.

(2) 01.06.2016

The present second stay application has been filed on the ground that the authorities concerned are proposing to confirm the private respondents on

the post of Safai Karamchari even though they are ineligible candidates. The writ petition was filed on 07.09.2015 and by an interim order dated

09.09.2015, the respondents were restrained from issuing any appointment order regarding 12 vacant posts of Safai Karamchari of Municipal Board,

Khudala Falnba.

Counsel for the private respondents submits that he would be filing reply to the application. A request has also been made on behalf of the counsel for

the respondents Nos.1 to 3.

Let replies to the second stay application be filed. List the matter on 04.07.2016.

In the meantime, no further orders be passed regarding confirmation of employees till the next date of hearing.

(3) 10.10.2017

IA No.5135/2017.

By way of the present application, private respondents No.4 to 1, who are selected candidates have prayed that their services may be regularized and

the respondents be directed to confirm them.

The applicants have indicated that on account of the interim order passed by this Court, they are facing great financial losses inasmuch, as they are

getting fixed sum of Rs.6,000/as against the approximate amount of Rs.19,000/-, which they would get, if their services are regularized.

After hearing learned counsel for the parties, it is deemed appropriate and hence ordered that the Municipal Board, Khudala, Falna shall deposit the

aforesaid deferential amount for the period beginning with the completion of probation till today, payable to the respondent No.4 to 12 in a separate

bank account, earmarked in this regard and would further continue to deposit the monthly deferential amount payable to these respondents (4 to 12).

The adjudication in relation to rights of the respondents No.4 to 12 in relation to the amount so deposited shall be made at the time of final decision of

the writ petition.â€​

Counsel for the respondents have stated that the disputed questions of facts have been raised by the petitioners regarding documents of the selected

candidates and this Court may not like to conduct an inquiry in the whole selection process as it would be virtually impossible to scrutinize each and

every documents of 103 candidates and also the other propositions as narrated by the petitioners which are disputed by counsel for the respondents.

Counsel for the respondents have further pointed out that the process of lottery was to include 103 candidates out of which only 58 candidates were

found eligible for participation and, therefore, lottery was conducted from among these candidates.. Out of 58 candidates 39 were selected by the

lottery. Counsel for the respondents have further pointed out that out of the list of 103 candidates 58 were found eligible. Counsel for the respondents

have submitted that some of the candidates have removed the defects pointed out in the application forms and after removing such defects such

candidates were treated to be eligible for the purpose of lottery. Learned counsel have further pointed out that the individual cases as mentioned by

counsel for the petitioners were considered and at appropriate level the decision was taken to allow them on the satisfaction of the authority

concerned.

After hearing counsel for the parties this Court is of the opinion that the recruitment for the post of Safai Karamchari arising out of the advertisement

dated 25.5.2012 has been completed by the respondents after conducting lottery on 5.2.2015, in which 39 persons stood selected. This Court also finds

that out of 39 candidates only 22 persons were given appointments. The appointments in question are subject to the interim orders which were passed

by this Court on three occasions. This Court finds that the scrutiny of the complete selection process at the instance of the petitioners who themselves

participated in the selection process is not feasible in writ jurisdiction and individual affidavits/experience certificates/ information furnished by the

candidates cannot be adjudicated in the writ jurisdiction. This Court also finds the persons who have been recruited and upon rights having been

accrued to them, they are before this Court as respondents in the present writ petition, defending challenge to their ouster, which is sought to be made,

without there being any fault on their part at this stage of employment.

In such circumstances, this Court, without passing any order regarding legality or illegality of complete exercise of employment in light of the disputed

questions of facts raised by the parties, deem it appropriate to dispose of this writ petition with a direction to the respondents to constitute a committee

consisting of two persons viz. (1) Deputy Director (Regional), Jodhpur and (2) The Legal Officer for redressal of the disputes. These two persons

holding the said posts have been suggested by Dr. Pratistha Dave, learned government counsel. The persons who have been already appointed shall

also have a right to go before the authority envisaged to go into the details of the irregularities raised by the petitioners. The petitioners shall make a

fresh representation consolidating all issues within a period of four weeks from today and the same shall be placed before the aforementioned

authorities who shall require to pass reasoned order on each and every issue strictly in accordance with law within a period of eight weeks from

receiving representation. Since the private respondents have already been appointed, therefore, at this stage of employment this Court do not wish to

disturb their employment and direct that the committee constituted may consider all aspects of the matter but the employees already appointed shall

not be ousted. However, in case the claim of the petitioners is found to be lawful and meritorious as they have already participated in the lottery, then

they shall be considered for appointment on the posts already lying vacant or to be created by the respondents strictly in accordance with law. The

rights of already selected candidates shall be protected in light of the fact that they have already completed their probation period and Safai

Karamchari is a post which is at the last pedestal of public employment. The protection of this order shall be only for the 39 candidates who were

selected in the lottery process and are in continuous service. All consequential benefits to the employees already serving shall be given by the

respondents. The committee shall give its final outcome within a period of 12 weeks from today. The outcome of the committee constituted shall be

utilized by the State Government to take action against the officers concerned who have conducted the recruitment process, if anything is found to be

wrong in the process by the committee constituted by this Court. The committee shall also consider entitlement of the petitioners for appointment on

the said post.

The writ petition stands disposed of accordingly.