CW/5352/2003 of PRAKASH CHANDRA SONI Vs STATE and ORS on 22 December 2006

O R D E R

(1) S.B. CIVIL WRIT PETITION NO.4068/2003(Ashok Kumar & Ors. Vs. The State of Rajasthan & Ors.)

(2) S.B. CIVIL WRIT PETITION NO.5649/2003(Abhay Singh Chouhan Vs. The State of Rajasthan & Ors.)

(3) S.B. CIVIL WRIT PETITION NO.5650/2003(Hitesh Bhavsar Vs. The State of Rajasthan & Ors.)

(4) S.B. CIVIL WRIT PETITION NO.4309/2003(Rajneesh Vyas Vs. The State of Rajasthan & Ors.)

(5) S.B. CIVIL WRIT PETITION NO.4307/2003(Dilip Singh Gehlot Vs. The State of Rajasthan & Ors.)

(6) S.B. CIVIL WRIT PETITION NO.5351/2003(Mukesh Shah & Ors. Vs. The State of Rajasthan & Ors.)

(7) S.B. CIVIL WRIT PETITION NO.5304/2003(Davendra Kumar Jain Vs. The State of Rajasthan & Ors.)

(8) S.B. CIVIL WRIT PETITION NO.4308/2003(Kalpesh Kumar Vs. The State of Rajasthan & Ors.)

(9) S.B. CIVIL WRIT PETITION NO.5340/2003(Rita Joshi Vs. The State of Rajasthan & Ors.)

(10) S.B. CIVIL WRIT PETITION NO.4068/2003(Ashok Kumar & Ors. Vs. The State of Rajasthan & Ors.)

(11) S.B. CIVIL WRIT PETITION NO.5341/2003(Anil Vyas Vs. The State of Rajasthan & Ors.)

(12) S.B. CIVIL WRIT PETITION NO.4310/2003(Prakash Chandra Patidar & Anr. Vs. The State of Rajasthan & Ors.)

(13) S.B. CIVIL WRIT PETITION NO.1992/2004(Anant Kumar Dixit Vs. The State of Rajasthan & Ors.)

(14) S.B. CIVIL WRIT PETITION NO.6285/2003(Gulab Chandra Sevak Vs. The State of Rajasthan & Ors.)

(15) S.B. CIVIL WRIT PETITION NO.7317/2006(Ajay Sharma Vs. The State of Rajasthan & Anr.)

(16) S.B. CIVIL WRIT PETITION NO.6501/2005(Deepak Kumar Shrimali & Anr. Vs. The State of Rajasthan & Ors.)

(17) S.B. CIVIL WRIT PETITION NO.6329/2005(Rajesh Kumar Pandya Vs. The State of Rajasthan & Ors.)

(18) S.B. CIVIL WRIT PETITION NO.6208/2003(Kalpana Vyas Vs. The State of Rajasthan & Ors.)

(19) S.B. CIVIL WRIT PETITION NO.4067/2003(Nitin Kumar Bhatt & Ors. Vs. The State of Rajasthan & Ors.)

(20) S.B. CIVIL WRIT PETITION NO.4069/2003(Manoj Shukla & Ors. Vs. The State of Rajasthan & Ors.)

(21) S.B. CIVIL WRIT PETITION NO.5310/2003(Akling Kumar Gairy Vs. The State of Rajasthan & Ors.)

(22) S.B. CIVIL WRIT PETITION NO.5308/2003(Jamna Lal Lohar Vs. The State of Rajasthan & Ors.)

(23) S.B. CIVIL WRIT PETITION NO.4300/2003(Jeevan Lal Patidar & Ors. Vs. The State of Rajasthan & Ors.)

(24) S.B. CIVIL WRIT PETITION NO.5352/2003(Prakash Chandra Soni Vs. The State of Rajasthan & Ors.)

(25) S.B. CIVIL WRIT PETITION NO.5312/2003(Aashutosh Joshi Vs. The State of Rajasthan & Ors.)

(26) S.B. CIVIL WRIT PETITION NO.4299/2003(Shanti Lal Patidar & Ors. Vs. The State of Rajasthan & Ors.)

(27) S.B. CIVIL WRIT PETITION NO.6282/2003(KailashKumari Ranawat Vs. The State of Rajasthan & Ors.)

(28) S.B. CIVIL WRIT PETITION NO.6251/2003(Jagdish Singh Vs. The State of Rajasthan & Ors.)

(29) S.B. CIVIL WRIT PETITION NO.6275/2003(Kuldeep Pandya Vs. The State of Rajasthan & Ors.)

(30) S.B. CIVIL WRIT PETITION NO.6283/2003(Mangal Lal Vs. The State of Rajasthan & Ors.)

(31) S.B. CIVIL WRIT PETITION NO.6236/2003(Yogesh Chandra Suthat Vs. The State of Rajasthan & Ors.)

REPORTABLE

(32) S.B. CIVIL WRIT PETITION NO.5919/2003(Daulat Ram Vs. The State of Rajasthan & Ors.)

WRIT PETITONS UNDER ARTICLE 226OF THE CONSTITUTION OF INDIA.

DATE OF ORDER

:: 22[nd] December, 2006

PRESENT

HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ

Mr.P.R. Mehta, Advocate for the petitioners.Mr.N.M. Lodha, Additional Advocate General }Mr.Rameshwar Dave, Dy. Govt. Advocate } for the State.

BY THE COURT

All the aforesaid 32 writ petitions have been filed with asimilar prayer that the notification dated 14[th] July, 2003 issuedby the respondents thereby amending Rule 226 of theRajasthan Panchayat Raj Rules, 1996 and the advertisementdated 27[th] July, 2003 inviting applications for appointment onthe post of Teacher Gr.III be declared illegal andunconstitutional and quashed and further prayer that the

respondents be directed to operate and give effect to thenotification/order dated 01[st] July, 2003 whereby thegovernment decided to give appointment to all those who hadappeared in the select panel prepared pursuant to therecruitment process initiated in the year 1998.

The impugned notification and the advertisement are infact off-shoot of the judgment of Hon'ble Supreme Court inKailash Chandra Sharma vs. State of Rajasthan & Ors.,reported in 2002 (6) SCC 562 wherein their Lordships whileupholding the judgment of this Court held that the provisionmade by the State Government in its circular dated 10[th] June,1998 providing for ten bonus marks on the ground of domicilein the State of Rajasthan, ten bonus marks for residents of thedistrict concerned and five bonus marks to the residents ofrural area of that district was illegal, discriminatory andunconstitutional. Full Bench of this Court in Deepak KumarSuthar & Anr. Vs. State of Rajasthan & Ors. vide its judgmentdated 21[st] October, 1999 reported in (1999) 2 RLR 692 whiledealing with the cases of appointment of Teachers Gr.II and Gr.III held that any kind of weightage/advantage in publicemployment is not permissible on the ground of place of birthor residence and the provision contained in the relevantGovernment Circular providing for bonus marks was declaredto be illegal and void ab initio. Another Full Bench of this Courtin D.B. Civil Writ Petition NO.3928/1998 vide its judgmentdated 18[th] November, 1999 reiterated the same view regardingprocess of selection for appointment of Primary SchoolTeachers with various Zila Parishads of the State. A Co-ordinateBench of this Court by judgment dated 26[th] February, 2001 in abunch of writ petitions directed preparation of fresh merit list inrespect of candidates who were not appointed on or before 21[st]October, 1999 without awarding any bonus marks. The DivisionBench upheld the said judgment by its decision rendered on13[th] April, 2001. The State of Rajasthan and certain affectedemployees filed SLPs against the said decision. The Hon'bleSupreme Court although upheld the judgment of the DivisionBench as also of the Full Bench. While taking note of the factthat in almost all the writ petitions that the candidatesappointed pursuant to the aforesaid selection were not

impleaded parties to the litigation before the Hon'ble HighCourt, Hon'ble Supreme Court however confined the relief toonly such candidates who had moved the High Court aspetitioners and by invoking the doctrine of prospectiveoverruling held that aforesaid judgment would apply to onlysuch appointment which were made on or after 18[th] November,1999. In other words, the appointments made up to 17[th]November, 1999 were saved and directed not to be reopened.In the special circumstances of the case however the Hon'bleSupreme Court while invoking the Article 142 of theConstitution moulded the relief accordingly. What is howeverrelevant to be noted for the present purpose is that reliefgranted by the Hon'ble Supreme Court was confined to onlythose petitioners who had moved the High Court and theappointments made on or after 18[th] November, 1999 wereliable to be undone. Those writ petitioners and those who werein the select list were not appointed if are found to be superiorin merit by exclusion of the bonus marks were required to beconsidered for appointment by replacing the candidatesappointment on or after 18[th] November, 1999.

First 16 writ petitions out of the aforesaid 32 petitions,the candidates are claiming appointment with the Zila Parishad,Banswara and in the remaining, appointments are beingclaimed with Zila Parishads of various other districts. Althoughthe issues raised in all the writ petitions are substantiallycovered by judgment of a Co-ordinate Bench of this Courtdated 10[th] September, 2003 in Madhu Soni vs. State ofRajasthan & Ors. S.B. Civil Writ Petition No.3512/2003 andconnected matters vide which a batch of 843 writ petitionswere dismissed. Learned counsel for the petitioners however inthe present case has insisted on making fresh argumentsbecause according to him these petitions raise certainadditional grounds not urged before the learned Single Judgein Madhu Soni (supra). Although instantly it may be noted thatthe very same learned counsel who represent the petitioners inthis batch of petitions was also appearing for some of thepetitioners in those cases too. Even though the writ petitionscould have been decided on the basis of judgment rendered inMadhu Soni (supra), yet however I have heard the learned counsel for the parties on those additional arguments which Ishall deal with shortly hereafter.

In so far as first 16 of the above writ petitions pertaining to district Banswar are concerned, learned counsel Shri P.R.Mehta raised two fold contentions, firstly it has been urged thateven though the Hon'ble Supreme Court had directed therespondents to confine the consequential appointment to onlythose who had moved the High Court as writ petitioners byreplacing the candidates appointed on or after 18[th] November,1999 yet the respondents have given appointment torespondent No.4 Shri Ishwar Bharti and respondent No.5 ShriBhura Lal who did not fall in that category. Contention oflearned counsel for the petitioner is that neither Ishwar Bhartinor Bhura Lal had ever filed any writ petition. Yet, they havebeen appointed. The petitioners appeared at a much higherplace than them in the merit having secured more marks. Sucha contention has been pointedly raised in para 11 and ground Iof the writ petition NO.4068/2003 filed by Ashok Kumar Pathakand 22 others candidates and also in other petitions relating to district Banswara.

The respondents in reply to para 11 although admittedthat the respondents No.4 and 5 were less meritorious than thepetitioners but defended their appointment on the ground thatwhile the petitioner did not approach the Court at the time ofrelevant selection process whereas the respondents No.4 and 5approached the Court. They have however not given anyspecific details of the writ petition which any of them filedeither individually or jointly with some other petitioners.

The petitioners in rejoinder to the reply however asserted

Conclusion

the same fact again and contended that no particulars ordetails of the writ petitions allegedly filled by the respondentsNo.4 and 5 have been given and proof to this effect that theyever filed any writ petitions prior to the judgment of theHon'ble Supreme Court in Kailash Chandra (supra) has notbeen furnished. He referred to the judgment of a Co-ordinateBench of this Court in Deepak Vaishnav & Ors. vs. The State ofRajasthan & Ors. in S.B. Civil Writ Petition No.4586/2004

decided on 29[th] September, 2005 in which case respondentsNO.4 and 5 were impleaded as party respondents and upon therespondents admitting the fact that the petitioners No.1, 9, 10,11 and 12 had secured more marks than the respondents No.4and 5, a direction was given to the respondents to offerappointment to them.

Another argument raised by the learned counsel for thepetitioners, which is common to all the writ petitions, is thatthe Government itself has issued a circular and order on 01[st]July, 2003 wherein it decided that such candidate whoappeared in the revised panel prepared pursuant to thejudgment of Hon'ble Supreme Court by exclusion of the bonusmarks and have not yet been appointed are required to beappointed if the candidates lower in merit than them havesecured appointment. Their appointments would be madeagainst clear vacant post with the concerned Zila Parishad andif the posts are not available, sanction was accorded forcreating additional post up to the required extent. This hasbeen contested by the respondents whose stand is that oder dated 01[st] July, 2003 was withdrawn by order dated 25[th] July,2003 and this withdrawal order has not been challenged by thepetitioner. In fact the copy of a circular issued by the EducationDepartment of the State dated 24[th] February, 2003 has beenplaced on record with the rejoinder whereby the respondentsin order to carry out the mandate of the Hon'ble SupremeCourt in Kailash Chandra (supra) directed review of all suchappointments which were made pursuant to the judgments ofthe Courts in which decision was taken not to appeal againstthem, so as to find out whether the candidates in such caseshave secured the appointment on the basis of bonus marksand if so, their merit should be revised by exclusion of thebonus marks as per the direction of the Hon'ble Supreme Courtand consequential action taken.

Adverting at the out set to the first argument regarding appointment given to the respondents N0.4 and 5, it should beevident from pleadings of para 11 supra that their meritposition is respectively 59.64% and 59.50% which fact hasbeen asserted by the petitioners in para 11 of their petition with the additional fact that all the petitioners in first 16 writpetitions of the above 32 petitions have secured more marksthan the respondents No.4 and 5. Further more, the petitionershave asserted that when the respondents No.4 and 5, inspiteof the fact that they did not file any writ petition prior tojudgment rendered by the Full Bench in Kailash Chandra(supra), have been appointed, their appointment give rise to afresh cause of action in favour of the petitioners and on thatbasis they contend that the writ petitions deserve to be allowedon the ground of discrimination inasmuch as violation of Article14 and 16 of the Constitution of India.

The averments of the State in reply to para 11 of the writ

petition are quite vague, unspecific and ambiguous. Though ithas been asserted that while the petitioners did not approachthe Court at the relevant time, the respondents No.4 and 5 didapproach. Moreover, it has been submitted in additionalsubmission filed in one of the writ petitions being S.B. Civil WritPetition No.4068/2003 that the names of respondents No.4 and5 appear in the select list at serial No.65 and 69 but none of the petitioners figure in the select list. But then, this is again no direct answer to the arguments raised by the petitioners thatexcluding bonus marks of the respondents No.4 and 5 placethem below the petitioners in the merit.

The petitioners in their rejoinder again asserted that the respondents No.4 and 5 did not file any writ petition before thisCourt challenging validity of the bonus marks and not an iota ofevidence or proof has been produced before this Court tosubstantiate the fact regarding their having filed any such writpetition prior to the judgment rendered by the Full Bench inKailash Chandra (supra). Inspite of being specifically asked togive the particulars of any such writ petition filed by therespondents No.4 and 5, the learned counsel for the State asalso the learned counsel representing respondent No.4 and 5failed to give any such details. In fact, respondents No.4 and 5have been impleaded as party respondents to these writpetitions on the ground of discrimination and they are dulyrepresented by their learned counsel. Yet however therespondents No.4 and 5 have chosen not to rebut the assertion made in the writ petition by filing reply thereto. In thesecircumstances, I have no option but to accept the contention ofthe petitioners that the respondents No.4 and 5 did not file anywrit petition prior to passing of the judgment by the Full Benchin Kailash Chandra (supra) and yet they were appointed inbreach of the direction given by the Hon'ble Supreme Court.

Coming now to the judgment in Deepak Vaishnav reliedupon by the learned counsel for the petitioner, a bare perusalof the said judgment would reveal that though the Court takingnote of the assertion made by the petitioner that therespondents No.4 and 5 herein, who were also respondents inthe said writ petitions, were having lesser marks in merit thanthe petitioners No.1, 9, 10, 11 and 12 in the said writ petitiondirected the respondents to offer appointment to those the fivepetitioners. Reading of the judgment however does not showwhether the Court was made aware of the fact that either theaforesaid petitioners or the respondents No.4 and 5 did not fileany writ petition prior to the judgment of the Full Bench inKailash Chandra (supra). This judgment, with great respect,

cannot be taken as a precedent on the facts of the presentcase where it has come to be specifically asserted by therespondents that neither of the petitioners filed writ petitions.A question would therefore arise whether a mandamus can beissued requiring the respondents to consider the case of thepetitioners for appointment contrary to the specific directionsissued by the Hon'ble Supreme Court in Kailash Chandra(supra) which requires the respondents not to consider anysuch candidate for appointment who did not file writ petitionquestioning the award of bonus marks prior to the delivery ofthe judgment by the Full Bench. In my considered view, therelief as has been prayed for cannot be granted to thepetitioners as that would tentamount to overreaching thespecific directives contained in the judgment of the Hon'bleSupreme Court.

Coming now to the argument that if the respondents have wrongly appointed the respondents No.4 and 5 eventhough they, like the petitioner, also did not file any writpetition prior to the judgment in Kailash Chandra (supra) and that this has violated the petitioners' right to equality enshrined in Article 14 and 16 of the Constitution resulting intodiscrimination against them, it should be noted that equality isa positive concept which cannot be enforced in negativity. Ifany functionary of the Government has passed any wrongorder contrary to any provision of law or against any bindingjudgment of the Supreme Court, that can hardly afford anybasis for an argument of discrimination and praying for a writof mandamus seeking perpetuation of such illegality. Anarguments based on such factual foundation would beabsolutely fallacious.

It is indeed of matter of great concern that the respondents have shown such a scant regard for compliance ofthe judgment of the highest court of the land. Entire approachto the issue has been callous and lackadaisical inasmuch astheir such action has given rise to several such unfoundedclaims like the petitioners in the present case and others aswell. In the case of Deepak Vaishnav (supra) also although it isnot appearing from the text of the judgment cited whether all

the petitioners with respect to whom the direction was givenfor offering them appointment also had filed writ petitions priorto the judgment in Kailash Chandra (supra). If the respondentsNo.4 and 5 and those others have ended up securingappointment even though on strict implementation of thejudgment of Hon'ble Supreme Court in Kailash Chandra Sharma(supra), they were not entitled to such appointment, it is reallya said commentary on the working of the respondentdepartment. In fact the circular issued by the respondents on24[th] February, 2006 clearly indicates that the government wascognizant of such cases where the appointments made in thepast if are found to be contrary to the directions issued by theHon'ble Supreme Court in Kailash Chandra (supra) on the basisof revised merit list, such appointments are liable to bereviewed. It would be now for the respondents to hold aninquiry to find out if the respondents No.4 and 5 and like themany other candidates have secured appointments even thoughon correct interpretation of the judgment of the Hon'bleSupreme Court in Kailash Chandra (supra) they having not filedwrit petition prior to delivery of the said judgment were not entitled to such appointment and take steps to dispense withtheir services. And here, I must take note of the statementmade by Mr.N.M. Lodha, learned Additional Advocate Generalappearing for the respondent State that while respondent No.4Shri Ishwar Bharti has expired and the government shall takesteps to make amends in the case of respondent No.5 BhuraLal and take appropriate steps.

Coming now to the circular dated 01[st] July, 2003 onwhich much reliance has been placed by the petitioners',besides the fact that the respondents have withdrawn thiscircular by their subsequent order dated 25[th] July, 2003, anindependent and careful reading of this circular dated 01[st] July,2003 would clearly shows that this circular has been issued byway of guidelines for implementation of the said judgment.What was said in Clause-1 thereof was that if upon revision ofthe merit list after exclusion of the bonus marks certaincandidates are found to have secured more marks than thosewho were already appointed, steps should be taken to appointsuch more meritorious candidates and if no vacant post wasavailable, sanction was accorded to create requisite number of AKC

post to the extent required. In the drafting of the order however a deviation appears to have been made in so far asreference of the appointees with whom comparison of thosenot appointed was to be made, by referring to them as theonce appointed 'after' 18[th] November, 1999 whereas it shouldhave been for those appointed 'before' 18[th] November, 1999.Soon upon realizing this mistake, the respondents by theirorder dated 25[th] July, 2003 withdraw a circular dated 01[st] July,2003.

Upshot of the above discussion is that there is no merit inthese writ petitions. The writ petitions are therefore dismissedwith no order as to costs.

[MOHAMMAD RAFIQ],J.