- (1.) HEARD learned counsel for the parties.
(2.) LEARNED counsel for appellants submitted that matter is covered by the decision of Division Bench of this Court in D.B. Civil Special Appeal No.381/2007- Durgesh Singh Khinchi Vs. State of Rajasthan and Ors., decided on 22.02.2011[RLW 2011(3) Raj.2069], wherein it has been found that more number of persons have been appointed than the vacancies notified. Learned counsel for respondent submitted that decision in the case of Durgesh Singh Khinchi Vs. State of Rajasthan and Ors.(supra), is not applicable in the present case, but he is unable to point out any distinguishable features as to why this appeal is not covered by aforesaid judgment. He is also unable to point out any submission to take contrary view than the view taken in the case of Durgesh Singh Khinchi Vs. State of Rajasthan and Ors.(supra) and to refer the matter to Larger Bench. Learned counsel for respondent further submitted that respondent is working since last four years, therefore, equity goes in his favour and his case may be considered sympathetically. In this regard, it is relevant to mention that present special appeal was filed way back on 07.11.2008; respondent filed Contempt Petition No.550/2008 for disobedience of order of Single Bench dated 30.06.2008 and appellant-State vide Office Order dated 22.05.2009, appointed the respondent on the post of Senior Physical Teacher, subject to decision of present special appeal. We have considered the submissions of learned counsel for the parties and we find that present matter is fully covered by the decision of Division Bench of this Court in the case of Durgesh Singh Khinchi Vs. State of Rajasthan and Ors.(supra), and thereafter number of D.B. Special Appeals including D.B. Civil Special Appeal(Writ) Nos.1387/2007, 390/2007 and 1502/2011, were allowed. Following order was passed on 02.03.2012 in DB Civil Special Appeal(W) No.390/2007-State of Raj. and Anr. Vs. Satya Prakash Soni:- "Heard on the question of admission. The matter is covered by the decision of Division Bench of this Court in DB Civil Special Appeal No.381/07- Durgesh Singh Khinchi Vs. State of Rajasthan & Ors. and other connected matters decided on 22.2.2011. It has been found by this court that more number of persons have been appointed than the vacancies notified. The instant case is covered by the aforesaid decision. We find no ground to take different view. It was submitted that subject to decision of appeal, appointments were made on account of pendency of contempt proceedings. In such circumstances, no right can be said to be accrued in favour of the respondent of continuation in service as the order was complied with subject to decision of the appeal. We find no ground to interfere in the intra-court appeal on the aforesaid count in favour of respondent. Thus, the appeal is allowed. The order dated 30.9.2005 passed by the Single Bench is set aside." In view of above, present special appeal is allowed. Impugned order of the Single Bench dated 30.06.2008 is set aside. ;