Rajasthan High Court - Jaipur
Narendra Kumar Sharma vs State Of Raj And Ors on 19 July, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Special Appeal Writ No. 1295 / 2016
Dharmendra Kumar Biyala S/o Shri Shankar Lal Sharma, Aged
About 40 Years, VPO Godiya Bada, Tehsil Fatehpur Shekhawati,
Dist. Sikar, Rajasthan
----Appellant
Versus
1. The State of Rajasthan Represented Through Principal
Secretary School Education, Government of Rajasthan,
Government Secretariat, Jaipur
2. The Director, Elementary Education, Government of Rajasthan,
Directorate of Education, Bikaner
3. The Rajasthan Public Service Commission Represented Through
Secretary, R P S C, Ajmer
----Respondents
Connected With D.B. Special Appeal Writ No. 1160 / 2016 Narendra Kumar Sharma S/o Shri Kailash Chandra Sharma, Kakrala Bhawan, Lamba Pada, Lalsot, Distt. Dausa, Aged About 35 Years, Presently Working As Teacher Grade - III At Govt. Upper Primary School, Sukhchainpura, Lalsot Distt. Dausa, Rajasthan
----Appellant Versus
1. State of Rajasthan Through Principal Secretary, Education Department, Govt. of Rajasthan, Secretariat, Jaipur
2. Rajasthan Public Service Commission Through Its Secretary, Ajmer, Rajasthan
3. Director (Primary Education) Education Department, Bikaner, Rajasthan
4. District Education Officer Cum Additional Chief Executive Officer (Primary Education), Zila Parishad Dausa, Rajasthan
----Respondents D.B. Special Appeal Writ No. 1166 / 2016 Ashok Kumar Joshi And Ors
----Appellant (2 of 12) [ SAW-1295/2016] Versus State (Education Department)Ors
----Respondent D.B. Special Appeal Writ No. 1167 / 2016 Dilip Kumar
----Appellant Versus State Of Raj And Ors
----Respondent D.B. Special Appeal Writ No. 1168 / 2016 Vikas Kumar Agrawal
----Appellant Versus State Of Raj And Ors
----Respondent D.B. Special Appeal Writ No. 1169 / 2016 Chandresh Rawal And Anr
----Appellant Versus State Of Raj And Ors
----Respondent D.B. Special Appeal Writ No. 1170 / 2016 Gopesh Kumar Sharma
----Appellant Versus State Of Raj And Ors
----Respondent (3 of 12) [ SAW-1295/2016] D.B. Special Appeal Writ No. 1171 / 2016 Yogesh Kumar Gutam &Ors
----Appellant Versus State (Education Department)Ors
----Respondent D.B. Special Appeal Writ No. 1172 / 2016 Bhagwan Sahai Gupta&Ors
----Appellant Versus State (Education Department)Ors
----Respondent D.B. Special Appeal Writ No. 1173 / 2016 Mukesh Kumar Sharma&Ors
----Appellant Versus State (Education Department)Ors
----Respondent D.B. Special Appeal Writ No. 1188 / 2016 Om Prakash And Ors
----Appellant Versus State (Education Department)Ors
----Respondent D.B. Special Appeal Writ No. 1189 / 2016 Babulal Sharma And Ors
----Appellant (4 of 12) [ SAW-1295/2016] Versus State Of Raj And Ors
----Respondent D.B. Special Appeal Writ No. 1280 / 2016
1. Ranjit Singh Chauhan S/o Abhay Singh Chauhan, Aged About 34 Years, Villae Bhadsora, Tehsil Bhadesar, District Chittorgarh, Rajasthan
2. Kamlesh Kumar Sharma S/o Bhura Mal Sharma, Aged About 34 Years, Mishra Bhawan, Naya Bazar, Village & Post Achrol, Tehsil Amber, District Jaipur
----Appellants Versus
1. The State of Rajasthan Through Its Secretary, Education Department, Govt. Secretariat Rajasthan,jaipur, Rajasthan
2. Rajasthan Public Service Commission, Ajmer Through Its Secretary
3. The Director, Primary Education, Department, Bikaner,rajasthan
----Respondents D.B. Special Appeal Writ No. 1281 / 2016 Sunil Kumar Sharma S/o Shri Suresh Chandra Sharma, Aged About 42 Years, Near Nandan Pathology Hospital, Hindaun City District Karauli At Present Posted At Government Upper Primary School Aagari. P.S. Karauli (Raj.)
----Appellant Versus
1. State of Rajasthan Through Its Secretary, Education Department, Goverment of Rajasthan, Government Secretariat, Jaipur
2. Principal Secretary, Finance,government of Rajasthan, Government Secretariat, Jaipur
3. Secretary, Department of Personnel, Government of Rajasthan, Government Secretariat, Jaipur
4. Director, Primary Education, Bikaner (5 of 12) [ SAW-1295/2016]
5. Rajasthan Public Service Commission, Through Its Secretary, Ajmer
6. Babulal Sharma S/o Shri Ram Kumar Sharma, Aged About 46 Years, Behind Baradari Mela Maidan,vikas Colony, Dausa, At Present Posted At Govt. Upper Primary School, Dabar Dhani (Sikandara), Panchayat Sikrai,disttdausa
7. Rajendra Kumar Sharma S/o Shri Ramkrishna Sharma, Badawala Mohalla, Gram Post Raini, Tehsil Raini, District Alwar (Raj.), Aged About 37 Years, At Present Posted At Government Upper Primary School, Govindpura, Panchayat Samiti Rajgarh, District Alwar (Raj.)
8. Rakesh Sharma S/o Shri Jagdish Sharma, Plot No. 2, Janta Colony, Behind Gaur Factory, Dausa, District Dausa, Aged About 45 Years, At Present Posted At Govt. Upper Primary School, Rahuwas, Block Lalsot, Panchayat Samiti Lalsot, District Dausa (Raj.)
9. Shivshankar Sharma S/o Shri Satyanarain Sharma, Subhash Colony, Dausa, District Dausa, Aged About 43 Years, At Present Posted At Government Upper Primary School, Basda (Kailai) Panchayat Samiti Sikrai, District Dausa (Raj.)
10. Nop Singh Rathore S/o Shri Mangej Singh Rathore, Aged About 32 Years, VPO Birania, Via Fatehpur, District Sikar (Raj.) At Present Posted At Government Upper Primary School, Girbadi, Dhod, Sikar (Raj.)
11. Chandra Prakash Sharma S/o Shri Mahadev Prasad Sharma, Aged About 42 Years, New Janta Colony, Piprali Road, Sikar (Raj.) At Present Posted At Govt. Upper Primary School, Jodkya Jhoda, Chandpura, Sikar (Raj.)
12. Ajeet Singh Shekhawat S/o Shri Ugam Singh, Village and Post Sutot, Via Phagawala Tehsil Laxmangarh, District Sikar (Raj.), Aged About 38 Years, At Present Posted At Government Upper Primary School, Dhani, Chudoli, Panchayat Samiti Dhod, District Sikar (Raj.)
13. Mukesh Kumar Sharma S/o Shri Vishnu Prasad Sharma, Ravindra Colony, Behind Thana, Ward No. 171, Nainwa, Bundi (Raj.), Aged About 35 Years, At Present Posted At Government Upper Primary School, Bhimganj, Panchayat Samiti Nainwa, District Bundi (Raj.)
14. Bajrang Lal Sharma S/o Shri Jagdish Prasad Sharma, Near Dholia Well, Ward No. -5, Post Sardar Sahar, District Churu, Rajasthan, Aged About 38 Years, At Present Posted At Government Upper Primary School, Dhani Suhana, Sardarsahar (Raj.) (6 of 12) [ SAW-1295/2016]
15. Pramod Kumar Sharma S/o Shri Avdesh Dutt Gaur, Ghadsisar, Sardarsahar (Raj.), Aged About 43 Years, At Present Posted At Government Upper Primary School, Ghadisisar, Sardarsahar (Raj.)
16. Sandeep Kumar Sharma S/o Shri Sitaram Sharma, Ludunda, Via Pilani, Tehsil Surajgarh, District Jhunjhunu (Raj.), Aged About 32 Years, At Present Posted At Government Upper Primary School, Bhainshali, Churu (Raj.)
17. Mukesh Kumar Sharma S/o Shri Govind Narain Sharma, Village Sirana, Tehsil Piplu, District Tonk., Aged About 46 Years, At Present Posted At Government Upper Primary School, Beejwar
18. Gopesh Kumar Sharma S/o Shri Gajadhar Prasad Sharma, Vichpuri Patti, Weir, District Bharatpur, Aged About 39 Years, At Present Posted At Government Upper Primary School, Bhodagaon, District Bharatpur (Raj.)
----Respondents D.B. Special Appeal Writ No. 1287 / 2016 Karni Dan Vyas S/o Sh. Shiv Kumar Vyas, Aged About 42 Years, Outside Nathusar, Opposite Dhamaniya Ki Panchayat Ki Bagichi, Bikaner, Rajasthan
----Appellant Versus
1. The State of Rajasthan Represented Through Principal Secretary, School Education, Government of Rajasthan, Government Secretariat, Jaipur
2. The Director, Elementary Education, Government of Rajasthan, Directorate of Education, Bikaner
3. The Rajasthan Public Service Commission, Represented Through Secretary, RPSC Ajmer
----Respondents D.B. Special Appeal Writ No. 1288 / 2016
1. Narendra Kumar Vijay S/o Sh. Bhanwar, Aged About 45 Years, 2-A-33, Mahaveer Nagar Ext., Kota,rajasthan
2. Yashwant Kumar Mathur S/o Sh. Ramesh Chand Mathur, Aged About 37 Years, Ram Sadan, Prem Nagar, Sendra Road, Dist. Ajmer
3. Omkar Singh Rathore S/o Sh. Kishore Singh Rathore, Aged About 42 Years, Village Post Chitwa, Dist. Nagaur, Rajasthan (7 of 12) [ SAW-1295/2016]
4. Keshav Chanran Pareek S/o Sh. Om Prakash Pareek, Aged About 42 Years, Vpo Chandawal, the Sojat, Dist. Pali, Rajasthan
----Appellants Versus
1. The State of Rajasthan Through Secretary, Education Department, Govt. of Rajasthan, Govt. Secretariat, Jaipur
2. Principal Secretary, Finance, Government of Rajasthan, Government Secretariat, Jaipur, Rajasthan.
3. Secretary, Department of Personnel, Government of Rajasthan, Government Secretariat, Jaipur, Rajasthan.
4. Director, Primary Education, Bikaner
5. The Rajasthan Public Service Commission , Through Its Secretary
----Respondents D.B. Special Appeal Writ No. 1289 / 2016
1. Chandra Pr. Gupta Son of Bheem Sahan Gupta, Aged About 30 Years, 266/165, Pratap Nagar, Sanganer, Jaipur Raj.
2. Krishan Bihari Sharma Son of Sh. Mohan Lal , Aged About 43 Years, Vilage Post Dosoud, Tehsil Behror, Dist Alwar, Raj.
3. Brijesh Kumar S/o Shri Ghanshyam Sharma, Aged About 40 Years, Village & Post Ghatri, Tehsil Weir, District Bharatpur, Raj.
4. Prem Prakash Sharma S/o Shri Kailash Narayan, Aged About 42 Years, Village Goth, Post Surer, Tehsil Rajgarh, Dist. Alwar, Raj.
5. Bharat Singh S/o Sh. Raghuveer Singh, Village & Post Berla, Tehsil Lamangarh, Dist. Alwar Rajasthan. (roll No. 132742)
6. Hari Shankar Sharma S/o Sh. Rambharosi Lal Sharma, Village & Post Chandoli, Tehsil Roopbas, Dist. Bharatpur, Rajasthan. (roll No. 179060)
7. Nawal Kishore Pareek S/o Shri Satya Narayan Pareek, Aged About 30 Years, Deoli Gaon,s Tehsil Deoli, Dist. Tonk, Raj.
----Appellants Versus
1. The State of Rajasthan Represented Through Principal Secretary, School Education, Government of Rajasthan, Government Secretariat, Jaipur.
(8 of 12) [ SAW-1295/2016]
2. The Director, Elementary Education,government of Rajasthan, Directorate of Education, Bikaner.
3. The Rajasthan Public Servi Ce Commission, Represented Through Secretary, RPSC Ajmer
----Respondents _____________________________________________________ For Appellant(s) : Mr. C. P. Sharma Mr. Shobhit Tiwari Mr. Mahendra Shah Mr. Ashwini Jaiman Mr. Ram Pratap Saini Mr. Himanshu Jain Mr. Vikash Kabra For Respondent(s) : Mr. S.K. Gupta AAG Mr. Nitin Jain Mr. Tarun Jain _____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 19/07/2017 In D.B. Civil Miscellaneous Application No. 13413/2017 in D.B. Civil Special Appeal (Writ) No. 1188/2016 Heard.
For the reasons mentioned in the application the same is allowed and respondent No.13 and 14 are transposed as appellants.
In D.B.Civil Special Appeal (W) Nos.1295/2016, 1160/2016, 1166/2016, 1167/2016, 1168/2016, 1169/2016, 1170/2016, 1171/2016, 1172/2016, 1173/2016, 1188/2016, 1189/2016, 1280/2016, (9 of 12) [ SAW-1295/2016] 1281/2016, 1287/2016, 1288/2016 & 1289/2016 :
1. Heard learned counsel for the parties.
2. Since after setting aside the impugned order dated July, 19 2016 we are remanding the matter for adjudication afresh by the learned Single Judge we would be noting relevant facts which warrant a remand.
3. On October 30th 2006, RPSC issued an advertisement inviting applications to appoint Teacher Grade III in different subjects. The number of vacancies notified were 18760. In the advertisement subject wise distribution of the posts was mentioned. It was indicated that posts would be reserved for OBC,SC,ST and female candidates.
4. After the selection process was over, for the unreserved category cut off declared was 106.67 marks. It was then detected that 686 female candidates were given appointment in excess, wrongly applying the principle of vertical and horizontal reservation. Writ petitions were filed in this Court by male general category candidates pointing out as above.
5. Vide decision dated September, 20 2011, the writ petitions were disposed of. Lead matter being S. B. Civil Writ Petition No. 3414/2009; Naresh Kumar Sharma & Ors. Versus State of Rajasthan & Anr. The learned Single Judge found that wrongly applying the principles of vertical and horizontal reservation, 686 female candidates were given appointment in excess of the permissible quota which could be reserved for female candidates.
(10 of 12) [ SAW-1295/2016] However, taking note of the law declared by the Supreme Court in the decision reported as (2007) 8 SCC 785, Rajesh Kumar Daria Versus Rajasthan Public Service Commission & Ors. wherein, in the absence of impleadment of candidates to whom wrongful appointments were given and as a result thereof had continued to serve, the learned Single Judge held that the appointment of 686 excessively appointed female candidates would not be disturbed but qua the category candidates direction issued was to offer appointment to 686 male candidates in order of merit. The decision by the learned Single Judge was upheld by a Division Bench vide order dated August, 21 2013 in DB Special Appeal (Writ) No.1213/2012. Petition seeking special leave to appeal was rejected by the Supreme Court on January 24, 2014.
6. Issue having attained finality, RPSC issued a revised cut off list as per which the general category male candidates who had obtained 102.67 marks became eligible to be offered letters of appointment. This obviously was to give effect to decision in Naresh Kumar Sharma's case. In terms of the revised merit list where the cut off was 102.67 marks some candidates were issued letters of appointment and we illustratively highlight that one Dalip Kumar who is the appellant in SAW No1167/2016 having obtained 102.67 marks was issued a letter of appointment.
7. Thereafter RPSC issued another revised list wherein the cut off prescribed was 106 marks. The result was an action contemplated by the RPSC to withdraw the letter of appointment to male candidates who had obtained more than 102.67 marks (11 of 12) [ SAW-1295/2016] and simultaneously not to offer letters of appointment to those who were shown in the merit list having cut off 102.67 marks. Those who were not offered appointments and had obtained more than 102.67 marks prayed for appointment to be offered and to who letters of issued appointment were issued and were sought to be withdrawn prayed for quashing of the orders withdrawing letters of appointment.
8. The pleadings in the writ petition are concededly vague, but expanded in the rejoinder affidavits. The pleadings shown that the grievance of the writ petitioners was that RPSC treated 1078 candidates which were earlier treated to be ineligible as now been eligible and the entry of their names in the cut off list raised the cut off from 102.67 marks to 106.67 marks. The learned Single Judge has not decided this controversy which emerges from the pleadings.
9. There would be yet another problem. As and when cut off marks is increased or decreased, it impacts the reservation given to the reserved category candidates. For example, if a cut off prescribed in the general merit list is 110 marks, a reserved category candidate having 110 or more marks would be adjusted in the general category. But if the cut off is increased to 115, the reserved category candidate who in the earlier list was included in the general merit would be entitled to be considered for appointment in the reserved category, depending upon the cut off in the reserved category. Meaning thereby this exercise would have a rippling effect on the cut off marks for the reserved (12 of 12) [ SAW-1295/2016] category candidates as well. This aspect has also not been noted and hence not looked in to by the learned Single Judge. There was yet another controversy. Some candidates who had obtained more than 106.67 marks when the original merit list was notified, being offered appointments, did not join. In the third revised list with cut off 106 marks even name of said candidates were entered. Whether this was permissible or not had to be decided. If it was not permissible to do so, whether these candidates not having joined pursuant to letters offering appointments would result in the vacancy still remaining to be filled up from the reserved list candidates needed adjudication.
10. Since these aspects with reference to the factual details has been overlooked by the learned Single Judge, we dispose of the writ appeals setting aside the impugned judgment dated July, 19 2016 and we restore all the writ petitions which were decided by the learned Single Judge vide said order. The writ petitions would be decided afresh after noting the relevant facts in light of the controversy which emerges and has been highlighted by us in the present order. Till the writ petitions are decided, said persons who are petitioners before the Court and who were offered letters of appointments with reference to the cut off 102.67 marks and had joined and were working when the writ petitions were filed shall be allowed to continue to work.
11. No costs.
(VIJAY KUMAR VYAS),J. (PRADEEP NANDRAJOG),C.J. N.Gandhi/Gourav13-29