1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: D.B. Civil Special Appeal (Writ) No.89/2005 Rajasthan Public Service Commission. vs. Dr.Mahendra Kumar Aseri & Anr. Date : 23rd July, 2010 HON'BLE JUSTICE SHRI PRAKASH TATIA HON'BLE JUSTICE SHRI KAILASH CHANDRA JOSHI Mr.Tarun Joshi, for the appellant. Mr.MS Singhvi ) for the respondents. Mr.GR Punia, AAG ) - - - - - BY THE COURT (PER HON'BLE TATIA, J.) : Heard learned counsel for the parties. This special appeal is against the judgment dated 27.2.2004 passed by the learned Single Judge in SBCWP No.4275/1997 whereby the learned Single Judge allowed the writ petition and quashed the order Annex.6 and directed the appellant RPSC to modify the select list in the light of the observations made in the judgment and provide appointment to the writ petitioner on the post of Assistant Professor if he is otherwise eligible for the same. 2 The learned Single Judge principally was of the view that the RPSC itself in earlier round of litigation admitted the fact that the writ petitioner is a member of Scheduled Caste and his result was kept in the sealed cover and after opening the sealed cover, it was found that his name is in the merit list of the candidates belonging to the Scheduled Caste for appointment on the post of Lecturer/Assistant Professor in Orthopedics. The learned Single Judge issued specific directions to RPSC that it should declare the result of the writ petitioner and include his name in the select list as per the merit and forward the same to the State Government for making appointment in accordance with law. The said decision of this Court in petitioner's earlier writ petition no.3101/1995 dated 30.1.1996 was challenged before the Division Bench of this Court in DB Civil Special Appeal No.253/1996 which was dismissed vide order dated 17.5.1996 and thereafter, the decisions were challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.12599/96, the Hon'ble Supreme Court held as under :- “Having regard to the fact that the respondents have already been considered and selected for appointment on the post of Assistant Professor in respective specialities and they have also been appointed, we do not consider it a fit 3 case to go into the question that has been raised by the petitioner in these special leave petitions. We, however, clarify that the direction contained in order dated June 5, 1995 in Civil Appeals arising out of special leave petitions Nos.12740-41/95 were given in the facts and circumstances of those cases only and the said directions cannot be treated as laying down the law regarding selection for appointment by the Rajasthan Public Service Commission which has to be made in accordance with the relevant rules. The special leave petitions are disposed of accordingly.” In view of the above decision, RPSC cannot dispute the factual position and cannot deny appointment to the petitioner. The learned Single Judge also held that Dr.Ratan Lal Dayama, a SC candidate, was eligible for appointment in general category and inclusion of his name in general category candidate was wrong and, therefore, also, there is one vacancy which was available for the petitioner. On these grounds, the writ petition was allowed. Hence, this special appeal by RPSC. During the pendency of this appeal, some orders were passed and in pursuance of those orders, affidavits were filed by the RPSC and State and counter was filed by the writ petitioner and supplementary affidavit was filed by the 4 State. However, the State has not challenged the impugned judgment whereby directions were issued to the RPSC to forward the name of the writ petitioner to the State Government for making appointment to the post. Learned counsel Mr.Tarun Joshi for RPSC vehemently submitted that in the year 1996, when SBCWP No.3101/1995 was decided, in total the result of 3 SC candidates was kept in sealed cover and, therefore, the RPSC stated before the High Court admitting the inclusion of the name of the writ petitioner in the merit list on the basis of facts which were available with RPSC and, therefore, the RPSC has not committed any mistake as admission was made in ignorance of the fact that the other candidates whose names have been kept in sealed cover, will stand where. It is also submitted that the last candidate given appointment in general category secured 55 marks whereas the writ petitioner secured only 51 marks. It is also submitted that Ratan Lal Dayama was not having marks more than any of the candidate who has been put in merit list of the selected candidates and, therefore, he was not eligible to get appointment in general category and, therefore, there was no vacancy in reserved category wherein only the petitioner could have been given appointment. Learned counsel for the RPSC further submitted 5 that not only that the writ petitioner in the above circumstances could not have got appointment but one Arun Kumar, who was kept in the reserve list, secured more marks than Ratan Lal Dayama and, therefore, had there been any vacancy due to shifting of Ratan Lal Dayama to general category candidate, the seat could have been given to Arun Kumar but the writ petitioner could not have got the seat. Learned counsel for appellant RPSC has provided the photostat copy of the record to justify the action of RPSC. Learned counsel Mr.MS Singhvi appearing for respondent no.1 vehemently submitted that whatever has been argued was not the case of RPSC before the learned Single Judge when SBCWP No.3101/1995 was decided nor it was a case of the RPSC before the Division Bench where the judgment of this Court dated 30.1.1996 was challenged nor it was the case of RPSC before the Hon'ble Apex Court where the special leave to appeal was dismissed as late as on 17.8.1998. It is also submitted that the writ petitioner is appointee of the year 1991. He sought relief from the Court that he may not be subjected to screening for the post of Lecturer and he be called for interview straightaway by the RPSC for consideration of his case on merit for appointment to the post concerned. The writ petitioner was granted full relief by High Court 6 and judgment dated 30.1.1996 attained finality and the writ petitioner is in service obviously from 1991 and after judgment of Hon'ble Supreme Court dated 17.8.1998, the petitioner's entitlement to appointment cannot be questioned as the issue is barred by principle of res judicata. Looking to the dates on which DB Special Appeal by the High Court and Leave to Appeal by the Hon'ble Supreme Court were decided, it is clear that the writ petitioner could not have even applied for the post afresh or again in view of the judgment of this Court and, therefore, it does not lie in the mouth of RPSC now to say that there was any error of fact. It is also submitted that not only the RPSC want to resile from its own admission but it is in appeal seeking relief which may be just contrary to the final judgment of the highest court of the land. Learned counsel for writ petitioner also drew our attention to the merit list submitted along with one application and affidavit filed by the writ petitioner in this appeal to show that the last person given appointment in general category after Shyoji Lal Sharma has been placed in seniority list at S.No.29 whereas Babu Lal Khajoti has been placed at S.No.26 and Babu Lal Khajoti and Shyoji Lal Sharma both had equal marks i.e. 53 and that also falsifies the facts which now the appellant RPSC wants to show to this Court. 7 Learned AAG Mr.GR Punia stated that the State has not given appointment to the writ petitioner because of the reason that his name was not recommended by the RPSC for appointment. We considered the submissions of learned counsel for the parties and perused the record of writ petition as well as Commission shown to us. The petitioner was already in service obviously as ad hoc appointee. He was eligible to be appointed for the post of Lecturer/Assistant Professor in Orthopedics. He was asked to face the screening test and that decision was challenged by the petitioner by filing SBCWP No.3101/95. In pursuance of the directions of this Court, the petitioner's sealed cover was opened and considering the facts of the case, this Court very specifically directed by judgment dated 31.1.1996 as under :- “As a result of the aforesaid discussion, the instant writ petition is allowed with a direction to respondent No.2-Commission to declare the result of the petitioner on the post of Assistant Professor in Orthopedics and include his name in the select list as per merit and forward the same to the State Government for making appointment in accordance with law. Costs easy.” 8 The said judgment dated 30.1.96 was challenged before the Division Bench and the Division Bench approved the findings of the learned Single Judge. Thereafter, the above judgments were challenged in SLP No.12599/96 with connected SLPs before the Hon'ble Apex Court. It is clear from the above facts that the Hon'ble Apex Court decided SLP on 7.8.98. Till 7.8.98, the fact position before the Court as we can notice from the order of Hon'ble Apex Court was that even the Hon'ble Apex Court noticed that the respondent along with others have already been considered and selected for the post of Assistant Professor in respective specialities and he has also been given appointment. As late as till 7.8.98, the appellant did not question the issue about the eligibility of the writ petitioner for the said post on the basis of merits. Therefore, the appellant at this belated stage cannot take help of any mistake if it was committed by it after such a long period which certainly denied the writ petitioner opportunity to seek appointment subsequently. The appellant cannot say that it had no knowledge of the fact which now it want to place before this Court when the Hon'ble Apex Court dismissed the SLP of the appellant in the year 1998. It is not a case of estopple simplicitor as estopple binds the parties only and not to the Court but resjudicata binds the Court 9 and in the facts of the case, we do not find any justification for passing any order in appellate jurisdiction so as to render the final judgment upheld upto the Hon'ble Apex Court to become ineffective and inoperative and deny the appointment to a person who is in service since 1991 and was found validly selected by the Commission for appointment to the post. In view of the above discussion, there is no merit in this appeal and the same is hereby dismissed. [KAILASH CHANDRA JOSHI], J. [PRAKASH TATIA], J. S.Phophaliya