Rajasthan High Court - Jaipur
State Of Raj And Anr vs Rajesh Kumar Sharma And Anr on 9 May, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. Civil Special Appeal (Writ) No.1847/2011 State of Rajasthan & Ors. vs. Laxmi Narain Sharma D.B. Civil Special Appeal (Writ) No.1547/2011 State of Rajasthan & Anr. vs. Suresh Singh Shekhawat D.B. Civil Special Appeal (Writ) No.1843/2011 State of Rajasthan & Anr. vs. Kundan Singh D.B. Civil Special Appeal (Writ) No.1844/2011 State of Rajasthan & Anr. vs. Ram Narayan Sharma & Anr. D.B. Civil Special Appeal (Writ) No.1845/2011 State of Rajasthan & Anr. vs. Rajesh Kumar Sharma & Anr. D.B. Civil Special Appeal (Writ) No.1846/2011 State of Rajasthan & Ors. vs. Mukesh Kumar Sharma Date of Judgment : 09.05.2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. Dinesh Yadav, AAG ] Mr. M. Faisal Baig, Dy. G.C. ] for State. Mr. C.P. Sharma ] Mr. Rakesh Kumar Sharma ] Mr. Prahlad Sharma ] for respondents.
There is delay in filing the intra-court appeals.
For the reasons stated in the applications under Section 5 of the Limitation Act duly supported by affidavits, delay is condoned. Applications are disposed of.
Heard on the question of admission.
These intra-court appeals have been preferred questioning legality of the orders dated 25.04.2008 in CWP-529/1999, dated 06.07.2011 in CWP-13330/2008 and dated 10.05.2011 CWP-4595/2007, 8506/2007, 6780/2006 & 9188/2007 passed by Single Bench whereby the writ petitions filed by the petitioners have been allowed.
The respondents-writ petitioners were appointed as Junior Compounder-cum-Nurse on 15.07.1996 pursuant to the regular selection made after issuance of Advertisement No.23793 dated 01.05.1996 in the pay scale of 1200-2050. Though, the nature of appointment was temporary one for the period of six months. Certain candidates approached this Court by way of filing CWP-2931/1996 & 2993/1996 challenging the selection process with the prayer that Scheduled Castes & Scheduled Tribes candidates in merit list, who has secured higher marks than last general category candidates be given appointment under the general category posts. On 18.11.1997, this Court directed that the reserved category candidates, whose merit came in the merit of the general category, should not have been appointed against the reserved quota posts and thus, the Court has ordered to prepare the revised merit list accordingly. Resultantly, certain candidates were lowered down in the merit list, however, their names still found place in the merit list. The services of 31 candidates including the writ petitioners and respondents No.6 to 10 were terminated vide order dated 26.08.1998. They were again appointed after break of five days and it was a formal break; in fact, they continued to serve in the department. The services of the respondents-writ petitioners and other candidates were continued. Respondents No.6 to 10 approached this Court by way of filing CWP-3958/1998 & 76/1999 with the prayer that they should be treated in service with effect from the date of initial appointment i.e. 15.07.1996 and also prayed for setting aside the order dated 26.08.1998 whereby their services had been terminated by way of giving artificial break in service. This Court decided the writ petition vide order dated 06.09.2001 and directed the respondents to consider the grievance of the petitioners. The Director, Ayurved Department passed order No.16159-73 dated 21.05.2002 whereby artificial break five days in service with respect to respondents No.6 to 10 was ordered to be condoned and allowed them all consequential benefits by treating them in service with effect from the date of initial appointment i.e. 15.07.1996. The petitioners in the writ petition were similarly situated. Since they were not given same benefits, they filed writ petitions before the Single Bench. CWP-529/1999 was allowed by the Single Bench vide order dated 25.04.2008 wherein the Single Bench has held that in the order which was passed by this Court to revise the merit list, there was no order of termination of services of the incumbents who were ultimately to be placed in the merit list. The State Government pursuant to order passed in the CWP-2931/1996 and 2993/1996 has granted relaxation and condoned the artificial break of five days in service. The termination order dated 26.08.1998, for all practical purposes, was not given effect to and it was artificial break which was condoned by the Government in case of similarly situated employees. Thus, this Court held that such incumbents, whose services had been continued, were entitled for seniority from the date of initial appointment as they were regularly selected candidates. Against the order passed by Single Bench review petition was filed, which was dismissed. Against the said order, Special Appeal (Writ) No.1547/2011 has been preferred. In other matters, the aforesaid order has been followed by Single Bench. Hence, the intra-court appeals have been preferred, which have been heard and being decided by the common order.
Mr. Dinesh Yadav, Additional Advocate General and Mr. M. Faisal Baig, Deputy Government Counsel appearing on behalf of State has submitted that since this Court has directed preparation of the fresh merit list which was accordingly prepared, impugned order could not have been passed by this Court. The Single Bench of this Court has directed the respondents to treat the incumbents having been appointed from the date of initial appointment prior to preparation of the revised merit list.
Learned counsel appearing on behalf of respondents have supported the order passed by Single Bench. They have contended that the Government itself has condoned the artificial break in service of respondents No.6 to 10, thus, they were bound to accord similar treatment to the writ petitioners. Even otherwise, services had been continued and merely by revising the merit list and the placement could not make incumbents lose the benefit of the service with effect from the date of initial appointment. It has rightly been accorded by the Single Bench. Hence, no interference is required in the order passed by the Single Bench.
After hearing learned counsel for the parties, we are of the opinion that the order passed by Single Bench is appropriate. It is not disputed at bar that selection was regularly made. This Court has directed for preparation of fresh merit list. This Court has ordered preparation of the revised merit list by placing such Scheduled Caste and Scheduled Tribe candidates who get selected on the basis of their merit in general category to appoint them in General Category post. Thus, merit list was revised. There was no direction to terminate the services of the incumbents, whose services were to be continued after revision of merit list in the aforesaid manner. The services of the petitioners were continued with change in merit placement and they were given only artificial break. However pursuant to direction issued by this Court in CWP-2931/1996 and 2993/1996, the case of respondents No.6 to 10 was considered and artificial break in service was condoned by State Government itself by treating the services with effect from the date of initial appointment i.e. 15.07.1996. The same treatment was required to be meted out to the other similarly situated incumbents, however, it was not accorded to them. Only fresh merit list was prepared by the Government, however, petitioners got selected in revised list also. In the facts of instant case, as the selection was regular and the State Government has prepared the revised merit list and condoned the artificial break, other similarly situated incumbents could not have been made to suffer. Thus, the order passed by the Single Bench is appropriate and in accordance with law.
Resultantly, the intra-court appeals being devoid of merit are hereby dismissed. Stay applications are also dismissed.
(NARENDRA KUMAR JAIN-I),J. (ARUN MISHRA),C.J. Mohit S/1-6
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Mohit Tak, Jr. P.A.