1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.5823/ 1997 Kailash Chandra Yadav Versus The State of Rajasthan and others DATE OF ORDER --- July 29, 2009 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Dr.P.C.Jain, for the petitioner Mr.Ganesh Meena, Dy.Govt.Counsel Dr.R.K.Sharma, for the respondent REPORTABLE BY THE COURT By this writ petition, the petitioner is seeking an appropriate writ, order or direction for appointment to the post of Teacher Grade-III advertised vide advertisement No.01/ 96 dated 7.1.1997 published in the newspaper dated 8.1.1997 (Anx.1) in the OBC category. Briefly stated, the relevant facts and the order/ judgment passed in the writ petition relating to remand, are that after doing graduation, the petitioner passed B.Ed. Examination in the year 1996 and the mark-sheet was issued on 17.3.1997. On the date of advertisement i.e.8.1.1997, the petitioner could not apply because he had completed 33 years as his date of birth is 1.8.1963. However, the Government relaxed the age by two years in case of OBC candidates and consequently, a Corrigendum (Anx.2) dated 31.3.1997, published in the 2 newspaper on 3.4.1997, was issued giving relaxation of 2 years to the OBC candidates in respect of the selection in question. As per the said Corrigendum, the last date of receipt of application for appointment was 15.4.1997 and the petitioner applied before the said date on the basis of which interview letter was issued on 27.4.1997. Subsequently, the interview was held and the petitioner was kept at Sl.No.111 in the general list. The selection letters were issued to the candidates who obtained 83.05% marks whereas the petitioner secured 83.46% marks and was kept at Sl.No.32 of the merit list of OBC but was not given appointment, therefore, the petitioner filed the present writ petition on the ground that persons lower in merit have been given appointment. In reply, the respondents have submitted that during the course of interview, on verification of the documents, it was found that on the last date of submission of the application form i.e. 25.1.1997, the petitioner was not possessing the basic academic qualification and further, they have also disputed the marks of the last candidate 83.05% being the cut off marks of all categories. The petitioner filed rejoinder in which it was submitted that the petitioner has passed out his B.Ed. Examination prior to 25.1.1997 as would be evident from the mark sheet (Anx.7) itself which is of June, 1996. Otherwise also, as per the Corrigendum, the last date for submission of the application form was 15.4.1997, therefore, for all purposes, 15.4.1997 is the relevant date to decide the issue of petitioner's possessing 3 the academic qualification. The other relevant facts relating to the remand of the case to the Single Bench are that on 15.1.2004, the writ petition was dismissed on the ground that the selection process was over and the appointments have also been given long back. In the appeal filed by the petitioner before the Division Bench, both the parties agreed that the writ petition may be restored for reconsideration of the issue by the Single Judge and the court has accepted the said request. I have gone through record of the writ petition and further considered rival submission of counsel for the parties. Before, proceeding further, it is relevant to reproduce the order dated 15.1.2004 of the Single Bench and 15.5.2007 of the Division Bench. The same are as under: Order dated 15.1.2004 “Petitioner is claiming appointment to the post of Teacher Grade III in pursuance to the advertisement issued way back in the year 1997. Since the whole selection process is over and the appoisntments have also been given long back, in the facts & circumstances of the present case, I find no ground for any further interference of this Court after more than six years. The writ petition is dismissed accordingly as having no merit.” Order dated 15.5.2007 of the Division Bench in DBSAW No.143/ 2004 “We heard the counsel for the appellant, Additional Advocate General for the respondent Nos.1 to 3 and the counsel for the respondent no.4. 2. The counsel and the Additional Advocate General for the parties agree that the writ petition be restored for re-consideration by the Single Judge on all aspects. 3. We, accordingly, set aside the order dated 4 15.1.2004 and restore the writ petition No.5823/ 1997 to the file of the Single Judge for fresh hearing and consideration of the matter. Special appeal is disposed of accordingly. No costs. 4. Since the writ petition is of the year 1997, we request the Single Judge to expedite the hearing of the writ petition as may be possible.” Although the parties had agreed before the Division Bench to restore the writ petition to its original number and the Division Bench had accepted the same but the law is well settled on the issue that the rights of the parties are to be decided on the date of filing of the writ petition and the delay in disposal cannot be a ground for throwing the writ petition on the said ground which is also justified on the principle of law that act of the Court should do no harm to the litigant. Recently, the Supreme Court in P.V.K. Distilleries Ltd. V. Mahendra Ram (2009) 5 SCC 705) has held that delay in proceedings before the Court cannot be a ground to deny relief to the petitioner. Otherwise, it will amount to double jeopardy. Para 25 of the aforesaid judgment is relevant and the same is as under: “25. In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is still pending before the court. These grounds could not be held against him for denying the relief of back wages otherwise he would suffer double jeopardy of losing back wages and delay in getting the reinstatement for no fault of his. Therefore, it would have been more enlightening, had the High Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should pay full back wages to him for nothing in return from him in 5 terms of work, production etc.” (emphasis supplied) As regards merit of the present case is concerned, there was no stipulation in the advertisement that the date of advertisement was relevant for the purpose of possessing the requisite academic qualifications, therefore, the last date of submission of the application i.e. 15.4.1997 as per Corrigendum (Anx.2) is relevant for the purpose of possessing the academic qualification. In the instant case, the last extended date is 15.4.2007 for OBC candidates and on that day, the petitioner possessed all the required academic qualification, therefore, rejection of his application is not proper. Even if the date of advertisement is to be taken into consideration then also, on 7.1.1997, the petitioner being holder of B.Ed. Degree of June, 1996 was entitled for appointment. Thus, from all angles, the candidature of the petitioner has wrongly been rejected. In the result, the writ petition is allowed. In case any candidate lower in merit in OBC category than the petitioner has been appointed in the said category as per merit position, then case of the petitioner shall to be considered for giving appointment and if found suitable, the petitioner shall be given appointment as Teacher Grade-III from September, 1997 with all consequential benefits. (Prem Shanker Asopa) J.