BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE appellant-petitioner, who is a widow, had applied for being appointed against the posts advertised vide Advertisement No. 2 of 1996 issued by District Establishment Committee of Jila Parishad, Udaipur for Teacher Gr. III in the Primary Schools. The petitioner-appellant had passed Secondary Examination. However, she was not offered appointment in pursuance of the said advertisement though she was called for interview. The petitioner filed the writ petition on the ground that she, being a widow, was not required to come within the merit list of the candidates to be appointed on the post and her case was required to be considered if otherwise found eligible to be appointed in terms of Annexure-1, the General Guidelines issued by Government of Rajasthan dated 23. 06. 1993 and she may be given appointment. She has not claimed to declare the process of selection committee otherwise to be invalid or that appointment given to anyone in pursuance of the said selection be quashed or set aside. The learned Single Judge without examining the merit has dismissed the writ petition on the ground that since the selection list which was issued in 1997 has expired, no relief can be granted to the petitioner and that the successful candidates have not been impleaded in the petition and therefore the petition is not maintainable though he found that the contentions raised in the petition are full of substance. We are of the opinion that so far as the rejection of writ petition on the ground of non-maintainability or laches is concerned, it cannot be sustained. Firstly, the date on which the petitioner is presented is the point of time with which the question of lathes is related and the petition comes before the court for hearing is not the material date to consider the case of laches or delay which may affect the grant of relief. The fact that the matter has come up before the Court for consideration on 23. 03. 1997 cannot affect the validity of claim on merit if the petition has been filed without any delay merely because time has taken in the proceedings before the same was taken up for hearing. We find from the record that the selection list has been issued and appointments have been offered in pursuance thereof somewhere between May, 1997 a. 09. 1997. This inference can well be drawn from the fact that the letter of interview was issued by the Selection Committee only on 1. 5. 97 and the representation has been made as early as on 23rd Sept. , 1997 pointing out that her name has not been included in the merit list and that it is not required for a widow to find her place in the order of merit for being considered and appointed. Soon after making representation writ petition has been filed on 29th Sept. , 1997 itself. Select list had not expired till then. Therefore, in our opinion, no delay or negligence on the part of the petitioner can be inferred which could disentitle her to relief on the ground that select list has expired. If merely the expiry of select list during the pendency of the writ petition is to be considered a ground to non-suite the petitioner, it would be negating fundamental rights of the petitioner about equal protection of law if one is treated arbitrarily by any State action. To seek remedy and get remedy for a breach of fundamental right of the Constitution is itself a fundamental right and that cannot be denied solely because of the delay which has caused in the Court after an aggrieved has knocked at the doors at the earliest possible time. Likewise, where the petitioner does not challenge the selection process and does not make party to the selected candidates in the selection made by the selection body but merely claims her right on a different set of rules, the principle of joining the affected parties would not arise inasmuch as by relief granted to the petitioner if she is otherwise found to be entitled is not likely to affect anyone except the authority to whom a direction need to be issued, such authorities are to be impleaded parties thereto and such authorities in the present case have been impleaded as parties.
(3.) WE are of the opinion that the decision relied on by the learned Single Judge do not warrant any straight jacket rule which appears to have been applied by the learned Single Judge. The fact that after adverting to the contention raised by the petitioner about her exclusion from the service, in the facts and circumstances, the Supreme Court has not found it necessary to give benefit to the petitioner, cannot be read as laying down a principle that even if the petitioner comes in time and the matter is decided, relief should be refused without considering it on merit. The other case to which reference is made by the learned Single Judge is Miss Sushma Suri vs. Govt. of National Capital Territory of Delhi (1 ). It was a case in which the selection process itself was challenged as unfair on the ground that the petitioners were excluded from competing at the selection and were denied equality of opportunity in the matter of employment by not treating the applicants to be advocates within the meaning of Article 233 (2) of the Constitution of India for the purpose of recruiting to the Judicial Service. When the selection process itself was challenged during the course of proceedings, the selection has been completed and the appointment have been given. Obviously if any relief was to be granted to the petitioner it would have resulted in quashing the selection process and setting aside the appointment given in pursuance thereof. In the aforesaid circumstances, the Supreme Court has said after holding in favour of the petitioners that it is not possible to give any relief to the appellant because when she commenced the litigation recruitment process was still going on but now the process is complete, selected candidates have already been appointed, they have reported for duty at different places and they are also not impleaded as parties in the proceedings. It may be noticed that for not granting relief non- impleadment of the parties was not the only ground but in the totality of circumstances, keeping the larger interest, the Supreme Court has not thought it fit to grant relief in that particular case without laying down any principle that in all such cases in no circumstances if without impairing the selection a relief can be granted to the petitioner still such petitioner be non-suited. ;