1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B.CIVIL WRIT PETITION No.4808/2001. : : Suman Bai & Anr. Vs. State & Ors. : : Date of Order 3.7.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.M.S.Yadav for the petitioner. Mr.Sandeep Saxena ] Mr.D.K.Garg for the respondents. Ms.Parinitoo Jain, Dy.Govt.Counsel, for the State. Reportable BY THE COURT : This writ petition has been filed by the petitioners namely; Smt. Suman Bai and Smt. Ved Kaur, who were appointed on the post of Physical Teacher Grade-II vide order of the Deputy Director (Secondary), Jaipur Division dated 16.8.2003 in compliance of the order dated 8.12.2000. The petitioners are aggrieved by their placement in the seniority below respondents No.4 to 8. According to them, they all participated in a common selection pursuant to which both set of employees were appointed, but the respondents were placed lower in merit than them. 2 This Court while allowing the writ petition No.5230/1998 on the basis of Division Bench's judgment in State of Rajasthan & Ors. Vs. Hari Ram & Ors. reported in WLC 2000 (1) (Raj.) Page 124 directed the respondents to consider the case of the petitioners and give them appointment after satisfying about the prescribed qualification in the light of aforesaid Division Bench judgment. The respondents though appointed the petitioners but did not give them seniority according to their placement in the merit above the private respondents No.4 to 8. The petitioners then filed contempt petition which was dismissed by the Court observing that sufficient compliance has already been made. According to the petitioner, the Court orally observed that if the petitioner felt aggrieved by non- providing appropriate seniority to them, they are free to file fresh writ petition. Hence, this writ petition. Shri M.S.Yadav, the learned counsel for the petitioners argued that when the Division Bench in the judgment of Hariram (supra) categorically held that those possessing qualification of Bachelor of Physical Education from Nagpur University would be eligible for appointment and directed the respondents to consider their case and give the 3 appointment, if they otherwise satisfy the qualification prescribed, it obviously meant that the appointment to them was to be given according to the merit list not only qua one another who were claiming appointment on the strength of Bachelor of Physical Education from Nagpur University but also other candidates who were already otherwise appointed. Infact, the respondent-State approached Division Bench of this Court again seeking clarification on this aspect contending that since sufficient number of candidates who had approached this Court up till the Division Bench rendered the judgment have already been given appointment and now new appointments could not be made because of non- availability of the vacancies. The Division Bench declined to interfere holding that there was no infirmity in the order. New batch of candidates, who approached the Court subsequently, therefore, could not possibly be offered appointment from a later date since the Division Bench declined to accept their plea that there was no infirmity in the order. Learned counsel argued this would have important bearing, not only on the question of appointment but also on seniority. He in this connection relied on Division Bench judgment of this Court in Niyaz Mohd.Khan Vs. State of Rajasthan in which petitioner, whose name was originally not 4 recommended by Rajasthan Public Service Commission due to mistake was was later sent to the Government for appointment and he was appointed. When he was not granted seniority as per his placement in merit, the Division Bench directed the State Government to provide him seniority above those who were below him in the merit list as appointments were made on the basis of merit list prepared in common selection. Ms.Parinitoo Jain, learned Deputy Govt. Counsel and Mr.D.K.Garg learned counsel for the respondent Nos.4 to 8 opposed the submissions and argued that when the learned Single Judge did not specifically direct that the petitioner should be assigned seniority above those who had already been appointed prior to their appointment, no new writ petition can be entertained for that relief. It was argued that now the petitioners have also been appointed due to later judgment of this Court and the case of the respondents No.4 to 8 are decided prior in point of time, and as per the directions they have been given appointment, therefore, the petitioners cannot claim higher seniority than them. It was further argued that the petitioners in the writ petition have merely prayed for giving effect to the judgment and with the 5 appointment given to the petitioners, judgment has already been implemented, therefore, the writ petition deserves to be dismissed. Upon consideration of the arguments aforesaid and the judgment of the Division Bench in Hari Ram and the subsequent order dated 21.7.2001 whereby clarification application of the State Government was dismissed, I find that the entitlement of the petitioner for appointment on the basis of originally prepared merit list cannot be denied. If admittedly the candidates, who are lower in merit, have been granted appointment, those who are above them in the merit cannot be denied such right of appointment. Seniority as per the rules in the case of direct recruitment on the post in question is required to be assigned on the basis of placement of candidates in the select list and when the selection is common and the merit list on the basis of which appointments were made is also common, right to secure appointment to both the set of employees thus flows from their selection which in turn is based on merit. Regard being had to all these facts, merely because one batch of employee approached this Court later and another earlier, and both of them having been appointed, the candidates who appeared 6 lower in merit cannot certainly be placed at a higher place in seniority. It was on this legal analogy that Division Bench of this Court in Niyaz Mohd.Khan (supra) held that the petitioner therein entitled to be placed in seniority in order of merit of common selection amongst persons appointed in pursuance of the same selection with effect from the date person lower in order of merit than the petitioner was appointed with consequential benefits. I am not inclined to accept the argument of the learned counsel for the respondents No.4 to 8 that the judgment of the learned Single Judge should be so read so as to infer therefrom that though the petitioners would be entitled to claim appointment but not seniority above the candidates who are already appointed even though they admittedly are above them in the merit list. Infact, the judgment of the learned Single Judge merely reiterated the direction of the Division Bench in Hari Ram (supra) in favour of the petitioners. But construction of that judgment in the manner in which the respondents want this Court to do, would negat the mandate of the Rules 20 and 21 of the Rajasthan Education Subordinate Service Rules, 1971, which requires seniority to be assigned as per the inter-se merit of 7 the candidates in the merit list based on common selection. Even otherwise, no such intention of the Court is discernible from reading of that judgment. Mere appointment of the petitioner was a sufficient compliance of the judgment and not total compliance was the view taken by this Court also when contempt petition filed by the petitioners was dismissed. Question with regard to correct and wrong assignment of seniority having arisen subsequent to appointment of the petitioners would obviously give rise to a afresh cause of action. The writ petition filed by the petitioners, therefore, cannot be thrown either barred by res- judicata or otherwise improperly constituted. In the result, this writ petition is allowed and the respondents are directed to treat the petitioners senior to respondents No.4 to 8 as per their placement in the merit list. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.32.