The main legal point established is that seniority in the case of direct recruitment should be assigned on the basis of the placement of candidates in the select list, and right of secure appointment flows from the selection based on merit.

1. - 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 16.08.2003 in compliance of the order dated 08.12.2000. 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. v. 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 beyond-providing appropriate seniority to them, they are free to file fresh writ petition. Hence, this writ petition.

3. 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 directed the respondents to consider their case and give the 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. In fact, 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 v. State of Rajasthan in which petitioner, whose name was originally not recommended by Rajasthan Public Service Commission due to mistake 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 of Rajasthan 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.

4. 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 appoint