Delay in appointment due to pending litigation does not justify denying service benefits to the petitioner from the date when lower merit candidates were appointed.

JUDGMENT

Kuldeep Mathur, J. - The petitioner applied for the post of Physical Education Teacher Grade-II pursuant to the Advertisement dated 27.08.1998. In the final merit list published by the respondents, the name of the petitioner was shown at serial No. 2. However, the petitioner was not appointed on the count that the qualification possessed by the petitioner from Nagpur University is not equivalent to Bachelor degree in Physical Education. The petitioner being aggrieved by the denial of appointment preferred writ petition before this Court being S.B.C.W. No. 1133/1999 (Lala Ram v. State of Rajasthan & Ors.).

2. This Court was pleased to allow the writ petition vide order dated 22.09.2005 holding that the qualification of B.P.Ed. obtained by the petitioner from Nagpur University is a valid qualification for appointment on the advertised post. The operative portion of the judgment dated 22.09.2005 reads as under:

"The writ petition, therefore deserves to be accepted and the same is allowed. The respondents are directed to consider the candidature of the petitioner for the purpose of appointment to the post of Physical Training Teacher Gr. 11 in pursuant to the selection proceedings taken place under the advertisement dated 27.8.98. In the event, petitioner is found suitable and if any person having marks less than the petitioner is given appointment, then the appointment shall also be accorded to him. The respondents are directed to complete the process of consideration as above within a period of three months from the date, the petitioner submits a certified copy of this order to the respondent Deputy Director (Secondary), Department of Education, Jodhpur."

3. The respondent in compliance of the order dated 22.09.2005 passed by co-ordinate Bench of this Court, issued an order of appointment dated 26.11.2007 in favour of the petitioner. The petitioner thereupon joined duties with the respondent-department w.e.f. 29.11.2007. After joining duties, the petitioner submitted representation to the respondent-department requesting service benefits including seniority and pay fixation with effect from the date when candidates lower in merit to him were given appointment. It was categorically mentioned in the representation that persons lower in merit from him were given appointment w.e.f. 11.03.1999, therefore his services in the department should be counted from the said date.

4. Learned counsel for the petitioner submitted that appointment was accorded to him consequent to the selection process initiated pursuant to the Advertisement dated 27.08.1998, therefore, his case cannot be distinguished from the case of the persons who are employed vide order dated 11.03.1999. It was argued that the delay in appointment is not attributable to the petitioner and if benefit of seniority and pay fixation are not allowed to the petitioner from the date, persons lower in merit to him were appointed to the post of Physical Education Teacher Grade-II, then the same shall be highly discriminatory.

5. Per contra, learned counsel for the respondents submitted that the delay in providing appointment was not due to inaction on part of the department. However, the same had taken place due to the pending litigation.

6. Heard learned counsel for the parties.

7. The Division Bench of this Court while considering a similar controversy in D.B. Civil Special Appeal No. 1375/2014 (Har Karan Ram Bugalia v. State & Ors.) held as under:-

"We do not find any merit with the stand taken by the respondents. It is not in dispute that the appointment was given to the petitioner as a consequence to the process of selection initiated under the notification dated 30.10.2006. The respondents considered his candidature and find him eligible to be recruited as Teacher Grade-III. An appointment too was given by them after getting the documents verified. True it is the delay occurred is not solely due to the respondents, but the relief as claimed by the petitioner, if not given then