IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4258/02 Israil Khan vs. State & Ors. Date of order : 2/7/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Tarun Choudhary for the petitioner. Shri S.L. Meena, Dy. Govt. Counsel for the respondents. ****** Learned counsel for the petitioner at the outset submitted that the controversy raised in this petition is squarely covered by the judgement of this Court in S.B. Civil Writ Petition No.5837/01 Subh Karan Singh Vs. State of Rajasthan & Ors. decided by this Court on 30.6.2008 in which this Court has considered the effect of the appointments made pursuant to judgment of Division Bench of this Court rendered in the case of State of Rajasthan and Ors Vs. Hari Ram and Anr. WLC 2001(1) page 124. In the present case too, while the merit of the petitioner indicates that his total marks as per the formula adopted by the respondent is 115.06%, the respondents have appointed as many as 11 candidates referred to in para 3 of the writ petition who are far less meritorious than the petitioner ranging from 98.70% to 113.51%. Learned counsel therefore submitted that the writ petition be allowed. Shri S.L. Meena, learned Deputy Government Counsel argued that the appointment to the aforesaid persons were initially not granted because their degree of Physical Education was not treated as valid, but appointment letters to the persons referred to in para 3 of the writ petition was issued pursuant to the division bench judgement of this Court in State of Rajasthan and Ors Vs. Hari Ram and Anr. WLC 2001 (1) page 124 decided on 13.9.2000 and that judgement being a judgement in personal, such appointments could not be granted to the petitioner who did not file the writ petition. This Court while deciding the aforesaid writ petition in Subh Karan Singh, supra, dealt with the similar arguments raised therein in the following terms: “After hearing learned counsel for the parties and perusing the relevant record, I find that two basic facts which have not been denied by the respondents are that (i) that Ashok Kumar Sharma is less meritorious than petitioner, who secured 104% marks in merit list as per the formula adopted by the respondents having secured a much higher placement in the merit list. (ii) that the action of the respondents in treating the petitioner alike Ashok Kumar Sharma on the basis of their degree of the B.P. Ed from Nagpur University has been held to be bad in law by the Division Bench of this Court in Hari Ram's case (Supra). After the appointment was given to Ashok Kumar Sharma on 31.11.2001, petitioner served a legal notice on the respondents and then he approached this Court by filing of writ petition on 1.12.2001. Though the process of selection was initiated in 1998, but was completed in 1999 and therefore, subsequently, the petition was filed within 15 days of appointment of Ashok Kumar Sharma. Even if this delay of three years is accepted as an argument in opposition to the relief prayed for by the petitioner, that cannot be such an impediment as to completely deny the rightful claim of the petitioner by this Court. In the peculiar facts of the case, relief although can be moulded and the petitioner can be denied monetary benefits for the intervening period and can be granted only notional benefits. In the result, the writ petition is allowed. In the light of the view taken by the Division Bench of this Court action of the respondent in not appointing the petitioner with the degree of the B.P.Ed. is held to be bad in law and the petitioner is held entitled to appointment on the post of Physical Education Teacher Grate-II w.e.f. the date Ashok Kumar Sharma who secured lesser marks than the petitioner, was appointed. The petitioner would however be entitled to only notional benefits for the intervening period. Compliance of the judgment shall be made within three months of the date of production of certified copy. In view of the aforesaid discussion, the present writ petition is allowed in the like terms with direction to the respondents to consider the case of the petitioner for appointment and if he is found suitable, appoint him with effect from the date the candidate immediately below in merit list namely Jaswant Kumar S/o Yadram Sharma is appointed. The petitioner shall be granted notional benefits from the date of appointment of Jaswant Kumar S/o Yadram Sharma for the intervening period. However, his seniority shall be reckoned from the date of appointment of Jaswant Kumar. Compliance of the judgment be made within three months from the date copy of this judgement is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/