ASHOK KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ALL the aforesaid 32 writ petitions have been filed with a similar prayer that the notification dated 14th July, 2003 issued by the respondents thereby amending Rule 226 of the Rajasthan Panchayat Raj Rules, 1996 and the advertisement dated 27th July, 2003 inviting applications for appointment on the post of Teacher Gr. III be declared illegal and unconstitutional and quashed and further prayer that the respondents be directed to operate and give effect to the notification/order dated 01st July, 2003 whereby the government decided to give appointment to all those who had appeared in the select panel prepared pursuant to the recruitment process initiated in the year 1998.

(2.) THE impugned notification and the advertisement are in fact off-shoot of the judgment of Hon'ble Supreme Court in Kailash Chandra Sharma vs. State of Rajasthan & Ors. , reported in 2002 (6) SCC 562 wherein their Lordships while upholding the judgment of this Court held that the provision made by the State Government in its circular dated 10th June, 1998 providing for ten bonus marks on the ground of domicile in the State of Rajasthan, ten bonus marks for residents of the district concerned and five bonus marks to the residents of rural area of that district was illegal, discriminatory and unconstitutional. Full Bench of this Court in Deepak Kumar Suthar & Anr. vs. State of Rajasthan & Ors. vide its judgment dated 21st October, 1999 reported in (1999) 2 RLR 692 while dealing with the cases of appointment of Teachers Gr. II and Gr. III held that any kind of weightage/advantage in public employment is not permissible on the ground of place of birth or residence and the provision contained in the relevant Government Circular providing for bonus marks was declared to be illegal and void ab initio. Another Full Bench of this Court in D. B. Civil Writ Petition NO. 3928/1998 vide its judgment dated 18th November, 1999 reiterated the same view regarding process of selection for appointment of Primary School Teachers with various Zila Parishads of the State. A Co-ordinate Bench of this Court by judgment dated 26th February, 2001 in a bunch of writ petitions directed preparation of fresh merit list in respect of candidates who were not appointed on or before 21st October, 1999 without awarding any bonus marks. THE Division Bench upheld the said judgment by its decision rendered on 13th April, 2001. THE State of Rajasthan and certain affected employees filed SLPs against the said decision. THE Hon'ble Supreme Court although upheld the judgment of the Division Bench as also of the Full Bench. While taking note of the fact that in almost all the writ petitions that the candidates appointed pursuant to the aforesaid selection were not impleaded parties to the litigation before the Hon'ble High Court, Hon'ble Supreme Court however confined the relief to only such candidates who had moved the High Court as petitioners and by invoking the doctrine of prospective overruling held that aforesaid judgment would apply to only such appointment which were made on or after 18th November, 1999. In other words, the appointments made up to 17th November, 1999 were saved and directed not to be reopened. In the special circumstances of the case however the Hon'ble Supreme Court while invoking the Article 142 of the Constitution moulded the relief accordingly. What is however relevant to be noted for the present purpose is that relief granted by the Hon'ble Supreme Court was confined to only those petitioners who had moved the High Court and the appointments made on or after 18th November, 1999 were liable to be undone. Those writ petitioners and those who were in the select list were not appointed if are found to be superior in merit by exclusion of the bonus marks were required to be considered for appointment by replacing the candidates appointment on or after 18th November, 1999.

(3.) ANOTHER argument raised by the learned counsel for the petitioners, which is common to all the writ petitions, is that the Government itself has issued a circular and order on 01st July, 2003 wherein it decided that such candidate who appeared in the revised panel prepared pursuant to the judgment of Hon'ble Supreme Court by exclusion of the bonus marks and have not yet been appointed are required to be appointed if the candidates lower in merit than them have secured appointment. Their appointments would be made against clear vacant post with the concerned Zila Parishad and if the posts are not available, sanction was accorded for creating additional post up to the required extent. This has been contested by the respondents whose stand is that order dated 01st July, 2003 was withdrawn by order dated 25th July, 2003 and this withdrawal order has not been challenged by the petitioner. In fact the copy of a circular issued by the Education Department of the State dated 24th February, 2003 has been placed on record with the rejoinder whereby the respondents in order to carry out the mandate of the Hon'ble Supreme Court in Kailash Chandra (supra) directed review of all such appointments which were made pursuant to the judgments of the Courts in which decision was taken not to appeal against them, so as to find out whether the candidates in such cases have secured the appointment on the basis of bonus marks and if so, their merit should be revised by exclusion of the bonus marks as per the direction of the Hon'ble Supreme Court and consequential action taken.