CW 6829/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.6829/2006 Neeraj Saxena Versus State & Ors. Date of Order ::: 23/01/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Ashish Saxena, for petitioner Mr. JK Agrawal, Addl.Govt. Counsel, for respondent-State Instant petition has been filed with the grievance that despite being higher in merit, still petitioner was deprived of appointment to the post of Primary School Teacher while appointments were finalised in the year 2003 pursuant to advertisement dt.13/06/98 (Ann.1). Posts of Primary School Teacher were notified vide notification No.1/98 dt.13/06/98 (Ann.1) by respondents for appointment in Zila Parishad, Chhitorgarh – in pursuance whereof, petitioner also applied for and at relevant point of time, merit list was prepared by respondents in terms of Circular dt.10/06/98 issued by State Government (Department of Rural Development & Panchayati Raj), which dealt with determination of merit duly amended ad infra: I. Marks for educational Qualification. Sl.No. Qualification Weight-age 1.Secondary Examination 50% 2.Senior Secondary Examination 20% 3.STC/BED 30% CW 6829/06 //2// II. Fixation of bonus marks for domiciles Domiciles of Rajasthan 10 Marks Resident of district 10 Marks Resident of Rural Area of district 5 marks” It is pertinent to mention that there was no written examination and the interview was of formal nature as there was no assessment of comparative merit therein; and merit list was to be prepared based on academic qualification in addition to bonus marks for being awarded based on domicile of applicants as fixed vide Circular dt.10/06/98 (supra). However, validity of bonus marks fixed and based on domiciles (supra) particularly of resident of district & of rural area of district was challenged and ultimately the Apex Court in Kailash Chand Sharma Vs. State (2002(6) SCC 571) observed that the award of bonus marks to the residents of district and residents of rural areas of the district amounts to impermissible discrimination and there is no rational basis for such preferential treatment on the material available on record; and finally bonus marks (supra) were declared unconstitutional and the State Government was directed to re-determine the merit of petitioners who moved the High Court and to make appointments made on or after 18/11/99 in any of the districts subject to the CW 6829/06 //3// claims of petitioners. “33. The above discussion leads us to the conclusion that the award of bonus marks to the residents of the district and the residents of the rural areas of the district amounts to impermissible discrimination. There is no rational basis for such preferential treatment on the material available before us. The ostensible reasons put forward to distinguish the citizens residing in the State are either non-existent or irrelevant and they have no nexus with the object sought to be achieved, namely, spread of education at primary level. The offending part of Circular has the effect of diluting merit, without in any way promoting the objective. The impugned circular dated 10.6.1998 in so far as the award of bonus marks is concerned, has been rightly declared to be illegal and unconstitutional by the High Court.” In the light of judgment (supra) the State Government revised merit list of candidates without awarding 10 bonus marks for resident of district and 5 for resident of rural area of district; and considered to make appointment as per revised merit list, as has been averred in para 7 of the reply to instant petition. It is relevant to mention that without taking note of bonus marks being declared unconstitutional by Apex Court (supra), petitioner's final merit was assessed at 61.44% and indisputably persons being lower in merit were considered for appointment in course of CW 6829/06 //4// preparation of select revised list prepared in pursuance to Apex Court's decision (supra), and one Alka Bhatnagar who secured 61.23% approached this Court at principal seat Jodhpur by way of CWP-863/01, which was finally allowed vide order dt.16/07/02, pursuant to which she was considered for appointment vide order dt. 09/10/03 (Ann.7). Grievance of petitioner herein is that when merit stood revised and available vacancies were to be filled up in respective districts in accordance with revised merit in terms of judgment of Apex Court in Kailash Chand Sharma Vs. State (supra), there was no justification for respondents to deny appointment particularly when he was indisputably higher in merit atleast vis-a-vis Alka Bhatnagar who was considered for appointment vide order dt.09/10/03 (Ann.7); as such action of respondents in deny appointment to petitioner is violative of Art.14 of the Constitution of India. In their reply, respondents have inter- alia averred that merit percentage of petitioner was 61.44% and merit list of all eligible candidates was revised without awarding bonus marks as per Circular dt.10/06/98 to the residents of district and residents of rural CW 6829/06 //5// areas of the district, in compliance of decision of Apex Court in Kailash Chand Sharma Vs. State (supra), appointment orders were also issued to all eligible candidates as per revised merit list. Although respondents admitted that petitioner was higher in merit vis-a-vis Alka Bhatnagar who was appointed as Primary School Teacher vide order (Ann.7) but Government Counsel contended that Alka Bhatnagar was given appointment only in compliance of order dt. 16/07/02 of this Court passed in her CWP-863/01 and there is no vacant post available in pursuance of advertisement dt.13/06/98 (Ann.1), against which candidature of petitioner can be considered for appointment. I have considered rival contentions of Counsel for parties and with their assistance, pondered over material on record. The Apex Court in Kailash Chand Sharma Vs. State (supra), held the Award of bonus marks to residents of district and residents of rural area of the district pursuant to Circular dt.10/06/98 being unconstitutional and finally directed ad infra: “46. .... 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 CW 6829/06 //6// 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. Candidatures of petitioners therein were to be considered afresh vis-a-vis candidates appointed on or after 18/11/99 & those in select list who were yet to be appointed in the light of directions stated in para 46 of decision in Kailash Chand Sharma Vs. State (supra) – in compliance whereof, respondents revised merit list of remaining applicants – as a consequence whereof, merit of petitioner having secured 61.44% marks and at the same time, those having been appointed by respondent after 18/11/99 in terms of decision (supra) as is evident from order 09/10/03 (Ann.7), such applicants having secured 59.61% marks were considered for appointment and it appears to be the reason for CW 6829/06 //7// which Alka Bhatnagar having secured 61.23% marks was appointed vide order dt.09/10/03 (Ann.7). Indisputably, petitioner was higher in merit vis-a-vis Alka Bhatnagar. Apex Court in Purushottam Vs. Chairman MSEB (1999(6) SCC 49), has examined the issue as to whether duly selected person can be deprived of his appointment on the pretext that the select panel has meanwhile elapsed and posts have been filled up by somebody else; and answered aforesaid issue ad infra : “4. ... The right of the appellant to be appointed against the post to which he has been selected cannot be taken aware on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant but on the erroneous decision of the employer himself. In that view of the matter, the appellant's right to be appointed to the post has been illegally taken away by the employer.” In instant case, indisputably petitioner being higher in merit and despite being selected could not have been considered for appointment on the pretext that Alka Bhatnagar who was lower in merit was appointed under orders of this Court or there was no vacancy against which petitioner could be considered, in the opinion of this Court, petitioners' merit could not be CW 6829/06 //8// scarificed particularly when he was otherwise eligible and higher in merit securing 61.44% in comparison to Alka Bhatnagar who secured 61.23% marks and was appointed vide order dt.09/10/03 (Ann.7) and certainly there was no justification for respondents to deprive him of his right of fair consideration on the premise that there is no vacancy for consideration of his appointment, particularly when he was not at fault. Consequently, writ petition succeeds and is hereby allowed. Respondents are directed to consider the petitioner for appointment to the post of Primary School Teacher pursuant to advertisement dt.13/06/98 (Ann.1) from the date, Alka Bhantagar was appointed vide order dt. 09/10/03(Ann.7) alongwith consequential benefits including notional fixation of pay and seniority etc. except pecuniary benefits for intervening period during which he had actually not worked. Compliance be made within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.8/6829CW06-Rsr23Jn.doc