IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2515/02 Sita Ram Saini vs. State & Ors. Date of order : 1/12/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Bhupendra Pareek for the petitioner. Shri Hemant Gupta, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by the petitioner claiming seniority over the persons who were shown below him in the merit. The writ petition earlier filed before this Court challenging the action of the respondents in not giving appointment on the post of Sanskrit Teacher Gr.III. According to the petitioner, his merit should have been assessed on the basis of average of marks secured by him in Praveshika examination and Shastri examination. The writ petition and special appeal filed by the petitioner were both dismissed. He eventually filed the Special Leave to Petition before Supreme Court. The leave was granted and the appeal of the petitioner was finally allowed vide judgement of the Supreme Court dated 8.12.1997. When the petitioner was appointed, the respondents treated his appointment as having been made with effect from 13.4.1998 and granted him benefit of seniority from the date of appointment only. The effect of this was that the petitioner was rendered junior most in the selection process in question. When he claimed seniority at the appropriate place on the basis of his placement in the merit, that was declined by the respondents on the premise that there was no direction for grant of consequential benefits by the Supreme Court. Shri Bhupendra Pareek, learned counsel for the petitioner has argued that the SLP / appeal filed before the Supreme Court was in continuation of proceeding of the writ petition / special appeal filed before this Court, in both of which the petitioner has claimed his appointment by correctly determining his merit and when the appointment has been directed to be made with reference to the selection process initiated pursuant to the advertisement no.1/92-93 and pursuant thereof appointments were made vide order dated 22.3.1993, the petitioner ought to be granted consequential benefits including with regard to seniority immediately above the candidate who secured lessor merit than him. Learned counsel for the petitioner has pointed out that Shri Mahesh Kumar Mehrishi mentioned at S.No.33 in the appointment order, whereas the name of the petitioner should be mentioned immediately above and below Shri Shankar Lal Sharma. Learned counsel relied on the judgement of Supreme Court in Balwant Singh Narwal & Ors. vs. State of Haryana & Ors.- (2008) 7 SCC 728. Shri Hemant Gupta, learned Additional Government counsel opposed the writ petition and argued that the appointment order of the petitioner would be effective from the date he is appointed i.e. 13.4.1998 and that the petitioner pursuant to such appointment order joined on 20.4.1998. He should get seniority on 20.4.1998 and not from any earlier date. Learned counsel argued that there was no direction of the Supreme Court for granting consequential benefits, the petitioner therefore cannot now claim such benefits. Learned counsel also submitted that persons who are likely to be affected by interpolation of the name of the petitioner in the existing seniority list, have not been joined as party respondents and in their absence, no order which may adversely affect them, can be passed. Consideration of the arguments aforesaid and perusal of the material on record clearly show that even the respondents do not dispute that the judgement of Supreme Court in fact turned on validity of the criteria adopted by the respondents in determining merit of the petitioner which was held to be bad in law. The relevant part of the judgement of Supreme Court is reproduced herein for the facility of reference: “Heard learned counsel for the parties. The appellant was a candidate for appointment to the post of a Teacher, Grade-III (Sanskrit). He has not been selected by the respondents on the ground that the average marks obtained by him in the qualifying examination was less than 52.3% which was the lowest average on the basis of which appointments had been given. It, however, appears that the appellant has passed Praveshika and also Upadhyay Examinations being equivalent to Higher Secondary and he has also passed the Shastri examination being equivalent to B.Ed. Examination. The Note under Clause (b) of Rule 6 of the relevant rules indicates that for calculating the percentage of the marks in case of more than one examinations passed by a candidate, the percentage of the higher marks obtained in the examinations passed by such candidate shall be taken into account. The appellant obtained 36% marks in the Upadhyay examination but in the Praveshika examination he obtained 43.63%. Hence, the marks in Praveshika examination being higher according to the notes under Clause (b) of Rule 6, the said higher marks should be taken into account for calculating the percentage. If such higher marks obtained in Praveshika examination is considered along with the marks obtained in Shastri examination being 61.60%, the appellant must be held to have obtained an average of 52.6% marks. Therefore, if the appointments had been given on the basis of lowest average marks of 52.3%, the appellant was entitled to be appointed having secured higher percentage than 52.3%.” The above referred to Supreme Court judgement clearly shows that not only the criteria adopted by the respondents was held by the Supreme Court not in conformity with law, but the Supreme Court directed that the marks of Praveshika Examination obtained by the petitioner were required to be considered along with his marks in Shastri Examination and thus the petitioner must be held to have obtained an average of 52.3% marks. It was further held that if the appointments have been made on the basis of lower average marks of 52.3%, the writ petitioner would be entitled to appointment having higher percentage than 52.3%. Implicit in the judgement of Supreme Court was therefore the direction that the appointment of the petitioner would be made on the basis of correct determination of merit of the petitioner and also in the same selection process which was subject matter of dispute. The respondents obviously therefore have to appoint the petitioner with reference to selection process in which all those others who were appointed pursuant to order dated 22.3.1993, were assigned respective placement in the seniority list based on their merit in the same selection process of which the petitioner was also a part. In the judgement of Supreme Court in Balwant Singh Narwal, supra relied on by the petitioner, also the same analogy was applied and it was held that those appointed subsequent to decision of the Supreme Court could have no objection to such appointments because the process of their appointment was halted due to intervening litigation and they were eventually appointed when the matter was finally decided by the Supreme Court upholding validity of the entire selection list of 30 candidates out of whom 16 were appointed earlier in the year 1999 and remaining subsequent to the judgement of Supreme Court. In the result, the writ petition is allowed. The respondents are directed to treat the petitioner to have been appointed with effect from the date the candidate immediately below him in merit was appointed namely Shri Mahesh Kumar Mehrishi and appoint him with effect from the date of his appointment order dated 22.3.1993 and assign him seniority immediately below Shri Shankar Lal Sharma and above Shri Mahesh Kumar Mehrishi as per his placement in the merit list with all consequential benefits of seniority. It is made clear that the petitioner shall be entitled only to notional benefits. Compliance of the judgement be made within three months from the date copy of this judgement is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/