- (1.) THE intra-court appeal (SAW No. 301/2004) filed by the applicant-appellant against the order dated 10.03.2004 as passed by a learned Single Judge of this Court in S.B. Civil Writ Petition No. 1067/2004 came to be dismissed for want of prosecution by a co-ordinate Bench on 06.09.2011 when the learned counsel earlier instructed on behalf of the applicant- appellant pleaded no instructions and no other appearance was available on his behalf.
(2.) THE applicant-appellant has filed the restoration application with the submissions that he had taken no objection from his former counsel and had engaged another counsel, who has now filed the Vakalatnama (which is placed on the record of the restoration application). With these submissions, restoration has been prayed for hearing of the appeal on merits. The office has reported that the application for restoration is time barred by 76 days. On 07.05.2012, we granted time to the learned counsel for placing on record a specific affidavit of the applicant in relation to the facts asserted in the application for restoration. Today, the affidavit of the applicant has been filed. Though the grounds as suggested in the application are wanting in material particulars but leaving this aspect aside, we have considered it appropriate to examine the matter on merits; and hence, for the purpose of record, the restoration application stands allowed. The intra-court appeal (SAW No. 301/2004) is restored; and has been taken up for consideration today itself. After having heard the learned counsel for the applicant- appellant and having perused the record, we find absolutely no reason to consider interference in the impugned order dated 10.03.2004 as passed by the learned Single Judge in S.B. Civil Writ Petition No. 1067/2004. Put in a nutshell, the substance of the matter remains that the appellant filed the writ petition with the submissions that he was eligible for being appointed on the post of Physical Training Instructor Gr.III under the Rajasthan Education Subordinate Service Rules, 1971; that the respondents issued a notice inviting application for the said post and he being eligible, applied for the same; and that he was called for interview where he produced all the documents. The appellant further submitted that earlier, the merit list was not published but upon publication thereof, he came to know about the mistake committed by the respondents in awarding of marks; and upon correct awarding and calculation of the marks, he was higher in merit than several of the candidates who had been given appointment. The learned Single examined the record and found that the appointment order to the other referred candidates was issued in compliance of the order dated 10.02.2003 as passed in CWP Nos. 3483/2002 and 4427/2002. The learned Single Judge observed that the advertisement was published way back on 27.08.1998 and the merit list was to survive upto 31.03.1999. The learned Single Judge was, therefore, of the opinion that irrespective of the incorrectness of the merit list, the things could not be reopened at the belated stage. The learned Single Judge also noticed the fact that so far the other persons, given appointment under the order (Annex. 4) were concerned, they had been litigating right from the beginning inasmuch as they filed initially the writ petition/s in the year 1998; and pursuant to the orders passed in intra-court appeal arising from such writ petition/s, they approached the competent authority; and then, filed the contempt petition where they were given liberty to challenge the order of rejection of their candidature by filing a fresh petition. The learned Single Judge, therefore, observed that such candidates were litigating regularly and their appointment did not furnish a ground to the petitioner to claim survival of the select list when for the first time, he woke up by sending a notice only on 01.11.2003.
(3.) THE learned Single Judge also considered the submissions that in the order dated 10.03.2003, this Court issued directions for appointment of the petitioners of these writ petitions on the basis of their merit; and found that the directions of the Court were issued on the finding that the ground of denial of appointment to them was wrong. The learned Single Judge, ultimately, observed that even if those persons were lower in merit, since the list did not survive and the petitioner did not wake up to the issue until the survival of the list, no interference could be made at his instance. The learned Single Judge, inter alia, observed as under:- "It was also contended by the learned counsel for the petitioner, that in the judgment dated 10.2.03, this court has directed, the petitioners therein, to be appointed on the basis of their merit. According to the learned counsel, since the petitioner stands high up in the merit, as compared to the persons appointed vide Annexure 4, he is entitled to be appointed. Suffice it to say, firstly, that the directions given by this court are contained in para 13, which reads as under: "The respondents are, therefore, directed the consider the cases of petitioners for the post of P.T.I. Gr.III on the basis of their merit and they be given appointment because of the fact that only ground for denial of appointment was found to be wrong by the court." (Emphasis supplied) Thus, it is clear, that apart from directing the appointment to be given on the basis of merit, it was further clearly observed, that they be given appointment, because of the fact, that only ground for denial of appointment was found to be wrong by the court. Secondly, may be that those persons may be lower in merit, as compared to the petitioner, but then, since the list does not survive, and the petitioner did not wake up to the issue so far, till the list survived, no interference can be made in favour of the petitioner. The writ petition thus, has no force, and is hereby dismissed summarily." Seeking to assail the order aforesaid, it is argued that the appellant, when standing higher in merit than the persons who had been given appointment, cannot be denied his legal right. ;