Girdhar Kumar Dadhich & Anr vs State Of Rajasthan & Ors

Girdhar Kumar Dadhich and another .... Appellants

Versus

State of Rajasthan and others .... Respondents

JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. Interpretation of a decision of this Court in Kailash Chand Sharma v.

State of Rajasthan and others, [ (2002) 6 SCC 562 ] is in question in this

appeal which arises out of a judgment and order dated 14th February, 2006

passed by the High Court of Judicature of Rajasthan. Jaipur Bench, Jaipur in

D.B. Civil Special Appeal (W) No. 147 of 2006.

3. Indisputably an advertisement was issued on 9th August, 1998 for

filling up 10 posts of Physical Education Teacher Grade-III. 10 Bonus

marks were to be granted for candidates who were resident of a particular

district, while 5 bonus marks to the candidates belonging to rural areas.

4. Validity and/or legality of the said provision for grant of bonus marks

was questioned before the said High Court by filing writ petition in the year

1999. The question was referred to a Full Bench. A Full Bench of the said

Court by a judgment and order dated 18th November, 1999 held the said

provision to be unconstitutional.

5. Upon declaration of the said law by the Full Bench of the High Court,

appellants herein filed two writ petitions being No. 1818/2001 and

1802/2001 before the said High Court inter alia contending that in view of

the said Full Bench decision, their position would be at serial Nos. 6 and 9

in the merit list. The said writ petitions remained pending.

6. This Court in Kailash Chand Sharma (supra) while upholding the

decision of the Full Bench to the effect that grant of such bonus marks was

unconstitutional, in exercise of its jurisdiction under Article 142 of the

2 Constitution of India, thought it fit and proper to invoke the doctrine of

prospective over-ruling, stating :

" The appointments made up to 17.11.1999 need not be reopened and reconsidered in the light of the law laid down in this judgment".

7. Allegedly the State of Rajasthan appointed Bhanwar Lal Gosar

(Mothsar) by an order dated 12th June, 2003. Two writ petitions were filed

by the appellants. However, in the meanwhile one Duli Chand had filed a

writ application being S.B. Civil Writ Petition No.1401 of 2003 before the

High Court. A learned Single Judge of the High Court dismissed the said

writ petition on 17th February, 2003 opining that the same was barred by

delay and latches. Following Duli Chand (supra) the appellants' writ

applications (Civil Writ Petition Nos. 5510/2003; 1818/2001 and

1802/2002) were also dismissed by the same learned Judge by an order

dated 5th December, 2003.

8. Aggrieved by and dissatisfied therewith, the appellants filed an intra-

court appeal being D.B. Special Appeal (W) No. 103 of 2004 which was

disposed of by a Division Bench of the High Court giving liberty to the

appellants to make a representation to the concerned authority within ten

3 days with a direction to the authority to dispose of the same within three

months thereafter.

9. Appellants submitted their representations on 10th July, 2005 which

were rejected by the respondents by an order dated 30th September, 2005.

10. Appellants challenged the said order before the High Court by filing

yet another writ application being S.B. Civil Writ Petition No.9253 of 2005,

which was dismissed by a learned Single Judge of the said Court following

the order passed in Duli Chand (supra).

11. Appellants preferred an intra court appeal thereagainst. A Division

Bench of the High Court, however, by reason of the impugned judgment

and order refused to interfere in the matter on the premise that the issue

stands squarely covered by the decision of this Court in Kailash Chand

Sharma (supra).

12. Mr. M.R. Calla, learned senior counsel appearing on behalf of the

appellants, would submit :-

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(i) The Division Bench of the High Court misread and misinterpreted

the decision of this Court in Kailash Chand Sharma (supra) in so

far as it failed to take into consideration that the same covered the

cases of only those employees who were appointed on or before

18th November, 1999.

(ii) Bhanwar Lal Mothsar having been appointed only in the year 2003

against the vacancy which remained to be filled up, Kailash Chand

Sharma (supra) cannot be said to have any application whatsoever.

(iii) The contention of the respondents that two vacancies filled in the

year 2003 - one against the OBC quota and another against the

general quota by the persons who were placed higher in the select

list than the appellants was valid in law, cannot be accepted as the

respondents had already appointed four persons against the OBC

quota in the year 1999 itself.

(iv) As a vacancy still exists, even without disturbing the existing

appointees, the appellant(s) can be accommodated.

13. Mr. Navin Singh, learned counsel appearing on behalf of the

respondents, on the other hand, would contend:

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(i) Contention raised by the appellants having not been raised before

the High Court, the same should not be allowed to be raised for

the first time before this Court.

(ii) Appellants having not filed any writ petition in the year 1998-

1999 the High Court had rightly dismissed the writ petition as

being barred by delay and latches.

(iii) Appointments having been made on the vacant posts only in

relation to the candidates of the reserved category and/or who had

obtained higher position in the select list, appellants cannot be

directed to be appointed at this stage.

14. Before adverting to the rival contentions raised by the parties we may

notice that according to the appellants even today their exists two vacancies.

The purported chart prepared by the appellants and the records placed

before us show some discrepancy. At this stage, thus, it is not possible for

us to go into the details thereof particularly when the candidates already

appointed are not parties before us.

15. The select list was prepared in the year 1998. In our opinion it would

be difficult to issue any direction for appointment of the appellants herein at

this stage. Select list was prepared keeping in view the rules as they

6 existed. The said Rules might have been declared ultra vires but as

indicated hereinbefore this Court in exercise of its jurisdiction under Article

142 of the Constitution of India though it fit to give a prospective effect

thereto. It did so inter alia for the purpose of protecting the services of those

teachers who had already been appointed and had been in service for a few

years. Out of ten posts, eights teachers were appointed on or before 18th

November, 1999 which was the cut off date.

16. Indisputably the merit list was modified in terms of the dicta laid

down by this Court in Kailash Chand Sharma (supra).

17. The question as to whether the fresh appointees who are, having

regard to the said modification, required to be appointed on the premise that

they are placed higher in the select list than the appellants or not, in our

opinion, cannot be gone into by us for the first time since such a contention

had never been raised before the High Court. The entire record of the

matter, furthermore, are not before us.

18. It is stated that two appointments were made in the year 2003 - one

against OBC quota and another against General quota. It is not possible for

us to go into the question as to whether the entire quota for appointment in

7 the category of OBC was filled up in the year 1998-1999 itself and thus

appointment made against the vacant post from the said quota is illegal or

not. The concerned respondents are not parties before us. We have not

been informed as to whether any other person has been left out from the

original merit list

19. Furthermore the select list would ordinarily remain valid for one year.

We fail to understand on what basis appointments were made in 2003 or

subsequently. Whether the validity of the said select list was extended or

not is not known. Extension of select list must be done in accordance with

law. Apart from a bald statement made in the list of dates that the validity

of the said select list had been extended, no document in support thereof has

been placed before us.

In State of Rajasthan & ors. vs. Jagdish Chopra [(2007) 8 SCC 161],

this Court held:

"9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list 8 prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC 561, this Court opined:

(SCC p.564, para 9) "9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel."

It was further held: (SCC p.565, para 13) "13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period."

xxx xxx xxx

11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47, and Asha Kaul v. State of J&K (1993) 2 SCC 573)"

20. For the reasons aforementioned, we do not find any merit in this

appeal, which is dismissed accordingly. However, in the facts and

circumstances of the case there shall be no order as to costs.

9 ...............................J. [S.B. Sinha]

................................J. [J.M. Panchal] New Delhi;

January 23, 2009

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