SBCWP No. 451/04. SBCWP No.1578/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION No.451/2004. Smt.Shobha Sharma Vs. State of Rajasthan & Ors. 2) S.B. CIVIL WRIT PETITION No.1578/2002. Smt.Shobha Sharma Vs. State of Rajasthan & Ors. Date of Order:- February 13, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri K.N. Gupta for the petitioner. Shri Zakir Hussain, Additional Government Counsel for the State. ****** BY THE COURT: These two writ petitions have been filed by the petitioner with the prayer to direct the respondents to give her benefit of seniority from the date of candidates less meritorious than her were appointed pursuant to the process of selection initiated already in the year 1991 by the Zila SBCWP No. 451/04. SBCWP No.1578/02. 2 Parishad Bharatpur. In that process of selection, candidature of the petitioner was rejected because she did not have Mathematics as one of the subjects in her Higher Secondary qualification. Respondents in rejecting candidature of the petitioner relied on that the Circular of the government dated 26/2/1991. Petitioner filed writ petition being SBCWP No.3007/93. Her writ petition was allowed vide order dated 22/7/1994 and respondents were directed to consider case of the petitioner for appointment and if she is found in merit, give her appointment within a period of three months. Respondents filed appeal being DBSAW No.432/1995 against the aforesaid judgment of the Single Bench which was dismissed by the Division Bench on 8/12/1995. Petitioner filed SBCWP No.1574/02 with the prayer that respondents may be directed to grant her seniority w.e.f. 7/2/1992 immediately above the candidates who were lesser meritorious than her in the aforesaid process of selection. In the second writ petition being SBCWP No.451/2004, she has additionally prayed for a direction that respondents be directed to give effect to the order regarding selection scale of the Finance Department dated 25/1/1992 deeming her to have been initially appointed w.e.f. 7/2/1992 on which date the persons immediately below her were so SBCWP No. 451/04. SBCWP No.1578/02. 3 appointed. 2) Shri Zakir Hussain, learned Additional Government Counsel for the State opposed the writ petitions on the premise that even though SBCWP No.3007/93 was allowed but there was no direction by this Court to grant to the petitioner consequential benefits. 3) It has been contended that mere direction was given for consideration of the candidature and if adjudged suitable, appoint her and accordingly she was appointed vide order dated 15/4/2000 and therefore she would be entitled to claim seniority only from the date of her appointment and not from earlier date. 4) Consideration of the arguments aforesaid and perusal of the material on record as also judgment passed by this court allowing writ petition of the petitioner, clearly show that the action of the respondents in rejecting candidature of the petitioner and treating her ineligible was held to be illegal being contrary to the rules. Obviously therefore petitioner was selected in the same process of selection in which number of other candidates were selected. Some of them were lower than petitioner in merit. But for the rejection of the candidature of the petitioner, she would have SBCWP No. 451/04. SBCWP No.1578/02. 4 been appointed along with all those others on 7/2/1992 and in that event, she would have been entitled to be placed above such of the candidates who secured lesser merit than her. When action of the respondents in rejecting candidature of the petitioner has been held to be illegal, she cannot be deprived of the fruits. In the relevant rules, seniority of all those who were appointed by way of direct recruitment is assigned as per inter-se placement of all the candidates in the merit list and petitioner would have been entitled to such seniority above candidates having lesser merit than her but action of the respondents in rejecting her candidature having been held illegal, she would be entitled to all the consequential benefits may be although, on notional basis. 5) In the result, both the writ petitions are allowed. Respondents are directed to treat the petitioner to have been appointed w.e.f. 7/2/1992 immediately above all the candidates who were lesser meritorious than her. Petitioner would be entitled to notional basis for the intervening period for the purpose of pay, annual grade increments, revision of pay scales revised from time to time and selection scale as also the seniority deeming as if she was appointed on 7/2/1992. SBCWP No. 451/04. SBCWP No.1578/02. 5 Compliance of the judgment shall be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ) J. anil