Vijay Kumar Sharma and Others vs State of Rajasthan and Others

Mohammad Rafiq, J.—Petitioners have filed this writ petition for quashment of order dt; 14.02.2008 (Annexure-12) to the extent of applying the notifications of 2006 (Annexure-14 and 15) to the petitioners, with further prayer for a direction to respondents to hold them entitled to draw their pay in the pay scale of Rs. 4500-7000 along-with all allowances admissible under the Rules as well as annual grade increments, selection'' scale and benefit of leaves, which are admissible and extended to similarly situated persons. Further prayer is also made for declaring that the notifications of 2006 (Annexure-14 and 15) are not applicable to the petitioners. Pursuant to advertisement No. 1/96, the petitioners applied for the post of Teacher Gr. III in the pay scale of 9-A i.e. Rs. 4500-7000.

The State Government in its circular dt. 05.05.1996 did not make any mention about the condition that marks obtained in original examination will only be taken into consideration for preparation of merit. Another circular dt. 24.07.1996 came to be issued specifying that marks obtained in original examination of secondary school certificate, will only be considered, on the contrary, this circular in its para 7(b) states that if a candidate produces marks-sheet of secondary school examination taken for improvement of division/marks before the last date of submission of application form, the same shall be taken into consideration while determining the merit.

Petitioners passed their secondary school examination and then improved their marks in subsequent secondary school examination from the Board of secondary Education, Rajasthan.

The respondents issued another circular dt. 20.07.1996, which provides that if a candidate produces a marks-sheet for the purpose of improvement of division/marks before the last date of application or before the process of determination of merit starts, it shall be considered while determining merit. This clearly indicated that the marks obtained at the subsequent examination for improvement of division/marks were to be considered for determining merit.

Because of the circular dt. 20.07.1996, the revised marks of the petitioners and other similarly situated persons were not taken into consideration denying them the appointments.

On 19.11.1996, an order was passed by the respondents amending the circular dt. 20.07.1996 to the effect that improved marks obtained in the subsequent examination would not be taken into consideration for determination of merit.

Aggrieved thereby, similarly situated persons filed writ petitions before this Court, which were dismissed by the Single Bench. They preferred Special Appeals (Writ) No. 596/1997 and 825/1997, which came to be allowed by a Division Bench of this Court vide judgment dt. 30.08.2001 with a direction to the respondents to take into consideration the marks obtained by writ petitioners in subsequent examination taken by them for improvement of marks/division and then prepare a merit list on that basis and if they are found eligible, then to appoint them as per their merit within three months. In compliance thereof, the similarly situated persons were given appointment on 07.02.2002/05.03.2002 on the post of Teacher Gr. III. The respondents are giving the pay scale of Rs. 4500-125-7000 to the similarly situated persons, who were appointed pursuant to advertisement No. 1/96 issued by the Zila Parishad, Sikar.

The petitioners, despite their completing all formalities, were denied the appointment. They filed writ Petition No. 5117/2001, which was allowed vide judgment dt. 28.09.2005 with a direction to the respondents to take into consideration the marks obtained by them in subsequent examination taken by them for improvement of their marks, for the purpose of preparing merit and if they are found eligible for appointment, accord them the same on the basis of their merit within three months.

The respondents did not comply with that order of this Court. Petitioners then filed contempt petition and only thereafter, the respondent No. 4 passed the order dt. 14.02.2008 giving them the appointment on the post of Teacher Gr. III, but instead of giving all services benefits of advertisement of 1996, the respondents have applied the subsequent circulars/notifications upon the petitioners, which are in fact not applicable to them because they applied for appointment on the said post in pursuance of the advertisement issued in the year 1996.

The respondents cannot discriminate with the petitioners by applying two different standards. On the one hand the respondents have given regular pay scale and all service benefits to similarly situated persons as per the old existing Service/Pay Rules of 2003, while they are applying the new Rules/notifications/circulars of 2004, 2005 and 2006 upon the petitioners by giving them fix pay without any other service benefits, which have been given to similarly situated persons. The petitioners were placed on probation vide order dt. 14.02.2008, whereas they should be deemed to be on probation from the date the candidates immediately below them in merit were appointed and accordingly their seniority ought to have been fixed.

While deciding two writ petitions, being S.B. Civil Writ Petitions No. 451/2004 and 1578/2002 (Smt. Shobha Sharma v. State of Rajasthan & Ors.), this Court, vide its judgment dt. 13.02.2009, directed the respondents to treat the petitioner to have been appointed with effect from 07.02.1992 immediately above all the candidates who were lesser meritorious than the petitioner. Petitioner however was held entitled to notional benefits for the intervening period for the purpose of pay, annual grade increments, revision of pay scales revised from time to time and selection scale as also seniority deeming as if she was appointed on 7.02.1992.

Similar controversy was also raised in Writ Petition No. 2515/2002 Sita Ram Saini v. State & Ors., which was decided by this Court vide its judgment dt. 01.12.2008. In that case also, after prolonged litigation up to the Supreme Court, the respondents gave appointment to the petitioner therein but treated his appointment and granted him benefit of seniority from the date of appointment only. He filed said writ petition claiming seniority at appropriate place on the basis of his placement in the merit. This Court allowed the writ petition and directed the respondents to treat him to have been appointed with effect from the date the candidate immediately below him in merit was appointed, and assign him seniority as per his placement in the merit list, with all consequential benefits of seniority. However, he was held entitled only to notional benefits.

This Court in Suman Bai & Anr. v. State & Ors., 2009 (1) WLC (Raj.) 381, held that candidates in lower order of merit cannot become senior merely because they had approached the Court earlier. Petitioners had a fresh cause of action for approaching in such a situation and their writ petition was not treated as barred either by res judicata or otherwise improperly constituted. This Court directed the respondents to treat petitioners senior to respondents, who were in lower order of merit.

In view of above, the writ petition succeeds and is allowed. Their appointments would relate back to the date the candidates below to them in order of merit, were appointed, and they would be entitled to draw their pay in the scale of Rs. 4500-7000 along-with all usual admissible allowances under the Rules. They shall also be entitled for annual grade increments, selection scale and benefit of leaves etc., from that date. The petitioners would, however, be entitled to notional benefits for earlier period, although that they would be entitled to actual benefits of the regular pay scale from the date they were appointed on probation and accordingly their pay fixation shall be made for the subsequent period. Compliance be made within a period of three months from the date of copy of this order is placed before the respondents. This also disposes of stay application.