1 S.B. Civil Writ Petition No.4039/2005. (Arun Singh Vs. State of Rajasthan & Another) DATE OF ORDER : August 18, 2008 Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. R.N. Upadhyay for petitioner. Mr. O.P. Boob, Addl. Govt. Counsel. BY THE COURT : In this writ petition, the petitioner has prayed for quashing order Annex.-7 dated 07.05.2005 and Annex.-11 dated 23.04.2005. The petitioner has set out the case in the writ petition that in pursuance of the judgment of the Hon'ble apex Court in Kailash Chand Sharma's case, reported in (2002) 6 SCC 562, the petitioner was directed by the District Education Officer (Elementary), Barmer on 29.03.2003 to submit certain information. In pursuance of that, all the required information was furnished by the petitioner; and, thereafter, he was provided appointment vide Annex.-4 dated 30.08.2003. In the said order of appointment, the name of the petitioner is shown at S.No.9. The petitioner was continuing on the post of Teacher Gr.-III in pursuance of the order of appointment dated 30.08.2003. 2 According to the petitioner, all of a sudden, he received notices Annex.-5 by which he was given show- cause notice observing that he had obtained appointment by fraud and making concealment of the facts and, therefore, why his services should not be terminated. An opportunity to file reply and documents was given to him and it was further observed that if he did not file any documentary evidence or reply to the notice his services will be dispensed with as per order passed by the Government on 23.04.2005. Thus an explanation was sought prior to terminating the services of the petitioner and, for that purpose, show cause notice impugned was given. In view of the above facts and circumstances, it is submitted by learned counsel for the petitioner that even as per judgment of the apex Court in Kailash Chand Sharma' case (supra) the petitioner is still entitled to be retained in service and no illegality or fraud has been committed by him. Upon perusal of the entire record of the case, I am of the opinion that by the impugned notices only explanation was sought for from the petitioner and if the petitioner has any case that no fraud or concealment has been committed by him, then, it is for the respondents to decide 3 the claim of the petitioner. This writ petition is against the show cause notice and against the show-cause notice reply must be filed by the petitioner. The Hon'ble Supreme Court has observed in the judgment referred to above in the case of Kailash Chand Sharma's case as under : “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 petitioner 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 petitioner. Accordingly, we direct : 1. The claims of the writ petitioner should be considered afresh in the light of this judgment vis-a-vis the candidates appointed on or after 18-11-1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioner 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 up to 17- 11-1999 need not be reopened and reconsidered in the light of the law laid down in this judgment. 3. Writ Petition No.542 of 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 4 explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time. Before parting, we must say that we have moulded the relief as above on a consideration of special facts and circumstances of this case acting within the framework of powers vested in this Court under Article 142 of the Constitution. Insofar as the relief has been granted or modified in the manner aforesaid, this judgment may not be treated as a binding precedent in any case that may arise in future. Another parting observation. While we realize the need to generate better employment opportunities to the of rural backward areas and an affirmative action in this regard is not ruled out, any such action should be within the framework of constitutional provisions relating to equality. Equalising unequals by taking note of their handicaps and limitations is not impermissible under the Constitution provided that it seeks to achieve the goal of promoting overall equality. However, measures taken by the State on considerations of localism are not sanctioned by the constitutional mandate of equality. As indicated in the judgment, any attempt at giving weightage to the rural candidates should be backed up by scientific study and considerations germane to constitutional guarantee of equality. The appeals arising out of the SLPs are disposed of accordingly. The impugned judgments of the High Court stand modified to that extent. The writ petition mentioned above is dismissed. There shall be no order as to costs.” Therefore, this writ petition is hereby disposed of with a direction that the claim of the petitioner for 5 continuance in service shall be decided by the Chief Executive Officer, Zila Parishad, Barmer while taking into consideration the directions given by the Hon'ble Supreme Court in Kailash Chand Sharma's case (supra) and, so also, after taking into consideration the factual aspect of the matter submitted by the petitioner by way of reply having provided opportunity of hearing to the petitioner, within a period of two months from the date of production of certified copy of this order. It is further directed that while entertaining this writ petition on 13.07.2005 it was ordered that the petitioner' services shall not be terminated and that order is still in existence, therefore, till the decision of the matter by the respondent Chief Executive Officer is made, the interim stay order shall remain in force. It is also clarified that if the claim of the petitioner happens to be rejected the petitioner will be at liberty to challenge the same, if so advised. (Gopal Krishan Vyas) J. Ojha, a.