Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Raj) 175

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
DINESH MEHTA, J.
Narendra Singh S/o Shri Asoo Singh - Petitioner
Versus
Ajitabh Sharma, I.A.S., The Principal Secretary, Department Of Animal Husbandry Government Of Rajasthan, Secretariat, Jaipur (Raj.)
S.B. Writ Misc Application No. 66/2020, 67/2020, 68/2020, 69/2020, 70/2020
Decided on : 10-08-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mr. S.P. Sharma, Mr. Manoj Bhandari, Mr. Nitin Trivedi
For the Respondent:Mr. A.K. Gaur, AAG with Mr. Salman, Agha, Mr. G.R. Punia, Senior Advocate, assisted by Mr. Mahaveer Bhanwari

Point of Law: If any other vacancy arises on account of non-joining of the candidates or candidates turning out to be ineligible, or on account of the fact that the candidate has already joined in pursuance to any earlier or subsequent order/advertisement, the remaining posts shall be filled in accordance with law.

Headnote:
Rajasthan Animal Husbandry Service Rules, 1963 - Rule 26 - Recruitment of Veterinary - Temporary employment - Working on urgent temporary basis, appointed in terms of Rule 26 ofRajasthan Animal Husbandry Service Rules, 1963 (hereinafter referred to as “the Rules of Court with the grievance that in spite of fact that after completion of process of recruitment of Veterinary Officer 150 posts still remained unfilled - Respondents were going to dispense with their services - Remaining 150 posts of Veterinary Officer shall be filled from remaining candidates of the said select/waiting list in accordance with merit - Needful shall be done within one month from receipt of copy of this order, in case, no stay is operating in any other writ petitions with respect to said selection list -working on contract basis and are still working on said post shall be allowed to continue on the remaining posts beyond 525 –
Finding of the Court:
Court, as the backlog of 149 posts related to period prior cannot be said that the backlog posts have lapsed, as amendment in Rules of 1963 has been brought into effect Petitioners’ contention that these posts have lapsed on completion of three years is thus, untenable, as amendment in rule cannot obliterate already existing rights of SC/ST candidates else it would amount to retrospectively applying a subordinate legislation - emerged out of the pleadings and record, is, that the respondents have shown 14 posts more as backlog posts - It was also pointed out that as a matter of fact only 149 posts were taken as backlog posts and not 150 and even RPSC had taken the backlog posts to be 149. The backlog posts, thus ought to have been 101 - These posts have lapsed on completion of three years is thus, untenable, as amendment in the rule cannot obliterate already existing rights of SC/ST candidates else it would amount to retrospectively applying a subordinate legislation - Needless to observe that if any other vacancy arises on account of non-joining of candidates or candidates turning out to be ineligible, or on account of the fact that candidate has already joined in pursuance to any earlier or subsequent order/advertisement, remaining posts shall be filled in accordance with law –
Result: Applications are allowed

ORDER :

1. Pursuant to order dated 21.01.2020, passed by Hon’ble the Supreme Court in Civil Appeal No.495/2020: Kunji Lal Meena IAS & Anr. Vs. Dr. Mukesh Kumar Mali & Ors. these cases which were earlier registered as Contempt Petitions, have been converted to Civil Misc. Applications. The same are being decided conjointly as they emanate from common judgment and involve common facts.

2. The facts relevant for the present purposes are that various persons working on urgent temporary basis, appointed in terms of Rule 26 of the Rajasthan Animal Husbandry Service Rules, 1963 (hereinafter referred to as “the Rules of 1963”), approached this Court with the grievance that in spite of the fact that after completion of the process of recruitment of Veterinary Officer 150 posts still remained unfilled, the respondents were going to dispense with their services.

3. Those writ petitions (S.B. Civil Writ Petition No.7694/2016 along with connected matters) filed by the petitioners came to be disposed of by this Court, vide order dated 19.01.2017 with the following observations:

"In view of the admitted facts and undisputed legal position, the present petitions are disposed of with the following directions:-

1) The remaining 150 posts of Veterinary Officer shall be filled from the remaining candidates of the said select/waiting list in accordance with merit. The needful shall be done within one month from receipt of the copy of this order, in case, no stay is operating in any other writ petitions with respect to the said selection list.

2) All other persons like the petitioners, who were working on contract basis and are still working on the said post shall be allowed to continue on the remaining posts beyond 525, if the posts are still lying vacant. They shall be allowed to continue till regularly selected candidates are made available.

3) The petitioners shall be paid the salary for the period for which it has been withheld.

At this stage, learned counsel for the petitioners stated that the petitioners working on contractual basis should be given the same pay-scale as is being given to other similarly situated candidates working on the said post since 1998. However, no such prayer has been made in the present writ petitions. Accordingly, the petitioners are at liberty to seek the relief vide separate proceedings, if so advised, in accordance with law. Disposed of in the above terms.”

4. Mr. S.P. Sharma, learned counsel for the petitioners invited Court’s attention towards the consent given by the State’s Counsel, duly recorded in the order dated 19.01.2017 and contended that the State is bound by the consent/assurance given by its counsel.

5. The relevant part recording State’s consent reads thus:

"It is agreed that about 150 posts are still lying vacant. Learned counsel for the respondents has very fairly stated that remaining posts will also be filled from the list of selected candidates/waiting list prepared, as the case may be, in pursuance to the result.”

6. As the State did not fill up those 150 posts, the petitioners herein preferred contempt petitions before this Court.

7. In S.B. Writ Contempt Petition No.804/2017 along with connected matters, a Coordinate Bench of this Court, vide order dated 29.01.2018, took a serious view of the matter and observed that the order dated 19.01.2017 was not complied with and the respondents have been trying to circumvent said order.

8. Feeling aggrieved with the order dated 29.01.2018, the State approached Hon’ble the Supreme Court by filing an SLP being SLP(C) No.5341/2018.

9. An argument was advanced before Hon’ble the Supreme Court that all these 150 posts, which were ordered to be filled in by the writ petitioners and others candidates, could not have been filled, as they belonged to SC/ST category candidates and were required to be carried forward as backlog of SC/ST (SC-68, ST-82) candidates.

10. After hearing rival contentions, Hon’ble the Supreme Court ordered to convert these contempt petitions to Wr

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