Rajasthan High Court - Jaipur
Brijesh Kumar Sharma vs State Of Raj (Rural Development) on 26 September, 2012
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.53/2012 Brijesh Kumar Sharma versus State of Rajasthan & ors 26.9.2012 HON'BLE MR. JUSTICE MN BHANDARI Mr Amit Mathur for petitioner BY THE COURT:
REPORTABLE The writ petition pertains to recruitment to the post of Teacher Gr III held in the year 1998. Earlier a writ petition bearing SB Civil Writ Petition No. 7963/2002 was preferred which was disposed of vide order dated 31.10.2002. The grievance of the petitioner is regarding denial of appointment as candidature of the petitioner has not been considered on the representation made though specific direction was given by this court on the earlier occasion. The prayer is made to direct the respondents to give appointment. Reference of the judgment of this court in the case of Dattesh & ors versus State of Rajasthan & ors, SB Civil Writ Petition No. 4555/2004, decided on 20.1.2011 at Principal Seat, Jodhpur has been given wherein direction in favour of similarly placed candidates were given.
I have considered submissions of learned counsel and perused the record. I find that for the recruitment of the year 1998 this is second round of litigation after 14 years, that too, when first writ petition was decided in the year 2002, hence, if representation was not considered then petitioner was not required to wait for 10 years. No justification of delay and laches exist.
It is otherwise necessary to refer judgment of the Hon'ble Supreme Court in the case of Kailash Chandra Sharma versus State of Rajasthan & ors, reported as (2002) 6 SCC 562 wherein belated petitions before the Hon'ble Supreme Court were not entertained and relief was confined to the petitions which were preferred on or before 18.11.1999. The relevant para of the aforesaid judgment is reproduced hereasunder :-
46.Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court and to make appointments made on or after 18.11.1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct :
1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis a vis the candidates appointed on or after 18.11.99 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18.11.1999.
2. The appointments made upto 17.11.1999 need not be reopened and re-considered in the light of the law laid down in this judgment.
3. Writ Petition No. 542/2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time.
After the aforesaid judgment, respondents had given appointment in violation of the instructions of the government and the judgment. The appointments were then cancelled/ withdrawn which become subject matter of the writ petitions. The Hon'ble Supreme Court has taken a serious view in such matters vide its order dated 2.4.2012 passed in Special Leave to Appeal (Civil) No.21377/2009, Suresh Chandra Sharma versus State of Rajasthan & ors. The Hon'ble Apex Court has observed and directed hereasunder:-
In KAILASH CHAND SHARMA Vs. STATE OF RAJASTHAN & ORS., (2002) 6 SCC 562, this court had confined the grant of relief only to the writ petitioners before the High Court and directed that their claims should be considered afresh in the light of the judgment vis a vis the candidates appointed on or after 18.11.99 or those in the select list who are yet to be appointed. This court had further directed, that upon such consideration, if the writ petitioners are found to have superior merit determined after excluding the bonus marks of 10% and/or 5%, they shall be offered appointments, if necessary, by displacing the candidates appointed on or after 18.11.1999. The appointments made upto 17.11.1999 could not however be reopened and/ or re-considered.
The petitioner's case is that although the relief granted by this court was limited to the writ petition petitioners in the case mentioned above, a large number of persons were appointed as Assistant Teachers, Garde-III, in different districts in schools run by the Zilla Parishad.
In terms of additional documents produced by the petitioner, appointment of two persons, namely, Bishembar Dayal and one Jamuna Lal were shown to have been made, no matter, they were not petitioners in the writ petition referred to in KAILASH CHAND SHARMA (supra). In addition, our attention was drawn to an office order issued by the Collector, Barmer, whereunder 27 persons named in that order are appointed as Asstt. Teachers. A supplementary affidavit filed by the District Education Officer, District Barmer, shows that apart from Bishembar Dayal and Jamuna Lal, appointments of nearly one dozen persons were made, which appointments were later on cancelled because the authorities realized that the same had been made illegally as those appointed were not writ petitioners before the High Court.
Learned counsel appearing for the respondent- State submits that while 12 persons in addition to Bishembar Dayal and Jamuna Lal were appointed, by the respondents, he was unable to state as to whether any inquiry was instituted by the State Government into all such illegal appointment. All that he could say was that those who were illegally appointed were sought to be removed against which action, the aggrieved persons had moved the High Court of Rajasthan and secured some interim orders in their favour.
We regret to say that the picture, as to the total number of persons appointed contrary to the instructions issued by this court, as also the steps that were taken for their removal and the persons responsible for making such appointment is not very clear.
We, accordingly, direct the Secretary to the Government of Rajasthan, Department concerned to hold an inquiry and submit a report as to the number of appointments made contrary to the order of this court in KAILASH CHAND SHARMA (supra) indicating the particulars of all such persons who have been appointed, the steps that have been taken by the Government of Rajasthan for removal of people so appointed as also action, if any, initiated against those who were responsible for making such appointments. Needful shall be done by the Secretary expeditiously but not later than two months from the date a copy of this order is received by him. An affidavit based on the findings recorded in the inquiry held shall be submitted along with relevant record to this court on or before 24.7.2012.
Further, vide order dated 30.8.2012, Hon'ble Apex Court issued a direction to refer the writ petitions to the Division Bench. Relevant portion of the order dated 30.8.2012 is also reproduced hereasunder:-
Dr. Singhvi further submits that the Government had terminated the services of fifty persons, who had according to the State obtained orders of appointment as teachers upon a misrepresentation of the facts. He submits that the said employees have questioned the orders of termination before the High Court of Rajasthan in writ petitions at Jodhpur/Jaipur, which petitions are still pending and in which the High Court has passed various orders staying the operation of their termination. He prays that the High Court be requested to take up the hearing of matters for an expeditious disposal, possibly by a Division Bench of that Court, so that, the entire controversy could be examined by this Court in the light of the said judgment. We see no reason to decline that prayer.
We accordingly request the High Court of Rajasthan to bunch the writ petitions filed by the effected employees and to place the same for hearing before a Division Bench of that Court for an early disposal of the matter. A copy of this order shall be placed before the Hon'ble Chief Justice for constituting a Division Bench.
Counsel appearing for the parties including some of the writ petitioners before the High Court, who have filed applications for intervention in this court assures us that they will co-operate for an early disposal of the matters by the High Court and complete the pleadings if not already completed.
Learned counsel for the petitioner submits that the State of Rajasthan is making further appointments on the analogy of those already made and has drawn our attention to one such order which the petitioner undertakes to place on record with an affidavit with an advance copy to counsel opposite who may take instructions and file his response.
The observations of the Hon'ble Supreme Court is in view of the indulgence granted by this court contrary to the judgment of the Hon'ble Apex Court.
So far as this court is concerned, similar writ petitions have already been dismissed in the case of Bana Lal Gurjar versus State of Rajathan & ors, SB Civil Writ Petition No. 3342/2010, decided on 18.7.2011.
The present writ petition has been filed after the judgment of the coordinate Bench at Principal Seat, Jodhpur in the case of Dattesh (supra), wherein, a direction has been given for completion of enquiry against illegal appointments and if vacancy come then case of the petitioners may be considered strictly as per rules. The petitioner has prayed for application of the judgment aforesaid in the present matter also.
I find that delayed writ petition is not maintainable, more specifically, in view of the judgment of the Hon'ble Supreme Court. A direction for consideration of petitioner's case for appointment cannot be given contrary to the judgment of the Apex Court. The judgment of coordinate Bench at Principal Seat, Jodhpur cannot be applied against the judgment of the Hon'ble Supreme Court, more specifically, in view of serious view taken by the Hon'ble Supreme Court for interference in selection of year 1998 and directions contrary to the said judgment in the case of Kailash Chandra Sharma (supra).
It is apart from the fact that panel prepared by the respondents had limited life thus petitioner cannot seek appointment subsequent to the expiry of panel.
Looking to over all facts of this court, it is not only due to lapse of panel and delay in approaching the High Court, but in the light of the specific directions of the Hon'ble Supreme Court, no petition can be entertained now in regard to the recruitment of the year 1998. The directions in the case of Kailash Chand Sharma (supra) were confined to the petitions preferred before this court prior to the judgment of the Full Bench and even petitions preferred before the Apex Court were dismissed when it were filed with a delay of one year i.e. in the year 2000.
The petitioner has preferred this writ petition now after a lapse of more than 14 years . Similar controversy has already been decided by this court in the case of Bana Lal Gurjar (supra).
In view of the discussion made above, writ petition is found devoid of merit. Hence, it is dismissed.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW