The appointment should be based on eligibility criteria and merit ranking, and any errors in the appointment process should be rectified to ensure the rightful candidate is selected.

JUDGMENT

Rekha Borana, J. - The matter comes up on an application under Article 226(3) of the Constitution of India for vacation of the order dated 11.12.2019.

2. With the consent of counsel for the parties, the matter has been heard finally.

3. Brief facts of the case are as under:

Vide order dated 14.06.2019, the applications were invited by the respondent-Department for the purpose of appointment of Teachers in Mahatma Gandhi Govt. School (English Medium). In pursuance to the said order, the petitioner also applied and after the result been declared, the interview for the said post was held on 27.06.2019. On the same date, result was declared and the petitioner was granted appointment vide order dated 02.07.2019 (Annexure-5). The petitioner was posted at Mahatma Gandhi Government School (English Medium), Station Road, Barmer.

4. After the said appointment, a representation was moved to the Department by one Mahendra Singh Rathore (respondent No. 5) alleging that although he stood at serial No. 1 in the merit list, he was not afforded appointment whereas the petitioner-Mukana Ram who stood at serial No. 12 in the merit list was appointed. On the said representation of respondent No. 5, an inquiry was called for by officer concerned.

5. On an inquiry being made, it was found that earlier inadvertently, respondent No. 5 Mahendra Singh Rathore was not afforded posting as it did not come into the knowledge of the respondent-authorities that the set up change of Mahendra Singh from Panchayati Raj Department to Education Department has already been made. In view of the mistake committed by the Department, the order of appointment of Mukana Ram was cancelled vide order darted 06.12.2019 and on the same date Mahendra Singh was appointed on the said post.

6. Against the cancellation order dated 06.12.2019, petitioner -Mukana Ram preferred the present writ petition before this Court in which an interim order dated 11.12.2019 was passed and the effect and operation of the order dated 06.12.2019 was stayed. Consequently, the petitioner -Mukana Ram continued to work on the said post and respondent No. 5 Mahendra Singh Rathore, who joined in pursuance to the order dated 06.12.2019 passed in his favour, also continued to work.

7. In the said circumstances, the present application under Article 226(3) of the Constitution of India has been filed by respondent No. 5 Mahendra Singh Rathore.

8. It has been argued by the counsel for the petitioner that the selection and the posting of the petitioner on the said post was totally valid. So far as respondent No. 5 is concerned, his set up change from Panchayati Raj Department to Secondary Education has never been made and therefore, in terms of the condition of the present recruitment process, respondent No. 5 was even otherwise not eligible. Counsel referred to the condition for appointment in the Mahatma Gandhi Govt. School (English Medium) which reads as under:

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9. Counsel argued that by perusal of the documents placed on record, it is clear that respondent No. 5 is working with the Panchayati Raj Department till date and the salary is also being paid by the same, therefore, it cannot be presumed that the set up of respondent No. 5 has ever been changed.

10. The second contention raised by the counsel for the petitioner is that his order of cancellation was passed during the currency of the session whereas his appointment was for the complete session. Thirdly, counsel argued that no opportunity of hearing was given to him before passing of the cancellation order dated 06.12.2019.

11. Per contra, counsel for respondent No. 5 submitted that his set up from Panchayati Raj Department to Education Department has already taken place vide order dated 16.06.2015. The copy has been placed on record as Annexure-R/4