- (1.) HEARD learned counsel for the parties. The writ petitions are being heard by us in view of the order dated 02.04.2012 passed by Hon'ble Supreme Court in Suresh Chandra Sharma vs. State of Rajasthan & Ors. [Petition for Special Leave to Appeal (Civil) No.21377/2009] and subsequent order dated 30.08.2012, in which, it was submitted that in view of decision of Hon'ble Supreme Court in Kailash Chand Sharma etc. etc. vs. State of Rajasthan and Ors. [(2002) 6 SCC 562], several persons have obtained appointment upon the misrepresentation of facts; the State Government had terminated services of fifty persons, who have obtained appointment by misrepresentation of facts. The orders of termination have been questioned by way of writ petitions before this Court at Principal Seat, Jodhpur and Jaipur Bench; the same are still pending consideration. This Court has passed various orders staying operation of termination of services of the petitioners. Thus, the Hon'ble Supreme Court has directed that the bunch of writ petitions filed by the effected employees be placed before the Division Bench for an early disposal of the matter. Consequently, the bunch of writ petitions have been listed today before us in compliance of the order passed by Hon'ble Supreme Court in Suresh Chandra Sharma's case.
(2.) THE question pertains to appointment of Teacher Grade-III for which advertisement was issued in the year 1998. The dispute arose with respect to assigning of the bonus marks. The matter was referred to full Bench of this Court in Deepak Kumar Suthar and Anr. vs. State of Rajasthan and Ors. [1999 (2) RLR 692 (FB)] and the Full Bench has held the provision of providing bonus marks to candidates belonging to same district for which posts are advertised to be unconstitutional. The matter travelled to the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Kailash Chand Sharma (supra) while considering the considering the competing claims in light of the acceptance of prospective overruling in principle, confined the relief only the petitioners who moved this Court and to make appointments on or after 18.11.1999. Relief was confined only to the petitioners who approached to the Hon'ble Supreme Court. The Hon'ble Supreme Court in Kailash Chand Sharma (supra) has laid down thus: "46. Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court and to make appointments made on or after 18.11.1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct : 1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis a vis the candidates appointed on or after 18.11.1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18.11.1999. 2. The appointments made upto 17.11.1999 need not be reopened and re-considered in the light of the law laid down in this judgment. 3. Writ Petition No. 542/2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time. " The Apex Court has further directed that appointment made up to 17.11.1999 need not be reopened and reconsidered. The Apex Court has dismissed the Writ Petition No.542/2000 filed under Article 32 of the Constitution of India as it was filed nearly one year after the judgment of this Court and the petitioner in the said petition was not given the relief. After decision in the case of Kailash Chand Sharma (supra), the Apex Court has also considered the same question in Girdhar Kumar Dadhich & Anr. vs. State of Rajasthan & Ors. [(2009) 2 SCC 706], wherein the Apex Court has observed that the criteria of weightage given on the basis of place of residence in preparation of select list was declared invalid. The implication of prospective overruling resorted to saving appointments already made up to Full Bench decision dated 18.11.1999 of this Court. The Apex Court has also considered the question whether other candidates who were not petitioners before Full Bench could claim appointment on the strength of rulings of Apex Court and this Court. It has been further held that the select list would ordinarily remain valid for one year, extension cannot be presumed. The Apex Court has held that the candidates who had filed writ petitions in this Court after the said Full Bench decision, their claim was belated and this Court has rightly dismissed the writ petitions. In Girdhar Kumar Dadhich (supra), following discussion has been made: "13. The select list was prepared in the year 1998. In our opinion it would be difficult to issue any direction for appointment of the appellants herein at this stage. Select list was prepared keeping in view the rules as they existed. The said Rules might have been declared ultra vires but as indicated hereinbefore this Court in exercise of its jurisdiction under Article 142 of the Constitution of India though it fit to give a prospective effect thereto. It did so inter alia for the purpose of protecting the services of those teachers who had already been appointed and had been in service for a few years. Out of ten posts, eights teachers were appointed on or before 18th November, 1999 which was the cut off date. 14. Indisputably the merit list was modified in terms of the dicta laid down by this Court in Kailash Chand Sharma (supra). The question as to whether the fresh appointees who are, having regard to the said modification, required to be appointed on the premise that they are placed higher in the select list than the appellants or not, in our opinion, cannot be gone into by us for the first time since such a contention had never been raised before the High Court. The entire record of the matter, furthermore, are not before us. 15.............. 16. Furthermore the select list would ordinarily remain valid for one year. We fail to understand on what basis appointments were made in 2003 or subsequently. Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us. " In the instant case, petitioners earlier approached this Court in the year 2001; the case was lying in defect and the same was registered in the year 2002 as Civil Writ Petition No.572/2002. The matter has been considered earlier by Division Bench of this Court in State of Rajasthan and Ors. vs. Nemi Singh and Ors. [Civil Special Appeal (Writ) No.06730/2010 vide judgment dated 06.09.2011] wherein following decision has been rendered: "In the instant case, initially the writ application was preferred in the year 2002. The petitioners cannot be granted relief in view of the decision of the Apex Court in Kailash Chand Sharma (supra) particularly in view of the decision rendered by the Apex Court in para 46(3) in which in the petition of the year 2000 relief claimed was not granted on the ground that there was delay of one year in filing of the petition before the Apex Court and no reason whatsoever was shown by the petitioners for not approaching the High Court earlier under Article 226. Thus, delay of even a year in such matter was held to be enough to disentitle the petitioners to claim the relief as granted to the other petitioners. Decision was confined to the other petitioners. Thus relying upon the decision of the Apex Court of Kailash Chand Sharma(supra), no direction could have been issued by the Single Bench for consideration of the case as their cases were clearly ousted from the purview of consideration as per law laid down by their Lordships of the Apex Court in Kailash Chand Sharma (supra). Ms. Naina Saraf appearing on behalf of the respondents has relied on the decision of the Division Bench of this Court rendered in The State of Rajasthan Vs. Shri Nemi Chand Mahela(D.B. Civil Special Appeal (Writ) No.02319/2007 decided on 24.5.2007), in which the Division Bench of this court has observed that the Hon'ble Supreme Court has not fixed any cut off date in implementing the directions issued by the High Court prior to the judgment of the Hon'ble Supreme Court in any of the matters which were decided by the High Court and had not been challenged. Nor there is any such direction that modified relief in terms of Kailash Chand's case is confined to writ petition filed prior to 18.11.1999. Counsel has also relied upon the decision rendered by Division Bench of this Court in Anil Kumar Sharma Vs. Director, Gramin Vikas and Panchayat Raj and Anr.(D.B. Civil Special Appeal (Writ) No.448/2005 decided on 9.1.2009) and the decision of Single Bench of this Court in Neeraj Saxena Vs. State of Rajasthan and Ors.(S.B. Civil Writ Petition No.6829/2006 decided on 23.1.2009). In our considered opinion in the instant case, question is not of fixing of the cut-off date. Question is that when once the Apex Court has confined the relief to the petitioners whether it is open to this Court to extend the benefit to the other incumbents, who approached this Court by way of filing the writ petitions belatedly in the year 2002, 2003 or later on. We are of the considered opinion that delay alone is enough to throw away cases of petitioners. If the petitioners were serious, they should have approached this court earlier and not in the years 2002, 2003 and later on. Thus, the petitioners are not entitled for any relief in view of the dictum of the Apex Court in Kailash Chand Sharma (supra). We are not at all impressed by the submission raised by Ms.Naina Saraf, counsel appearing on behalf of the respondents. It is not open to this Court to violate the dictum of the Apex Court under the guise of implementation of the decision. The decisions relied upon by counsel appearing on behalf of the respondents are of no help to the respondents as they do not cover the aforesaid aspect. " The appeal preferred by the State of Rajasthan was allowed and the decision of the Single Bench granting of the relief was set aside. Another Single Bench of this Court at Principal Seat, Jodhpur has taken the same view which was taken by the Division Bench in bunch of writ petitions in Ashok Kumar and Ors. vs. The State of Rajasthan and Ors. [S.B. Civil Writ Petition No.4068/2003] decided alongwith 31 other writ petitions vide order dated 22.12.2006, wherein the aforesaid decisions of the Hon'ble Supreme Court have been taken into consideration and writ petitions have been dismissed. The Single Bench is discussed the matter thus: "The petitioners in their rejoinder again asserted that the respondents No. 4 and 5 did not file any writ petition before this Court challenging validity of the bonus marks and not an iota of evidence or proof has been produced before this Court to substantiate the fact regarding their having, filed any such writ petition prior to the judgment rendered by the Full Bench in Kailash Chand (supra). Inspite of being specifically asked to give the particulars of any such writ petition filed by the respondents No. 4 and 5, the learned Counsel for the State as also the learned Counsel representing respondent No. 4 and 5 failed to give any such details. In fact, respondents No. 4 and 5 have been impleaded as party respondents to these writ petitions on the ground of discrimination and they are duly represented by their learned Counsel. Yet however the respondents No. 4 and 5 have chosen not to rebut the assertion made in the writ petition by filing reply thereto. In these circumstances, I have no option but to accept the contention of the petitioners that the respondents No. 4 and 5 did not file any writ petition prior to passing of the judgment by the Full Bench in Kailash Chand (supra) and yet they were appointed in breach of the direction given by the Hon'ble Supreme Court. Coming now to the judgment in Deepak Vaishnav relied upon by the learned Counsel for the petitioner, a bare perusal of the said judgment would reveal that though the Court taking note of the assertion made by the petitioner that the respondents No. 4 and 5 herein, who were also respondents in the said writ petitions, were having lesser marks in merit than the petitioners No. 1, 9, 10, 11 and 12 in the said writ petition directed the respondents to offer appointment to those the five petitioners. Reading of the judgment however does not show whether the Court was made aware of the fact that either the aforesaid petitioners or the respondents No. 4 and 5 did not file any writ petition prior to the judgment of the Full Bench in Kailash Chand (supra). This judgment, with great respect, cannot be taken as a precedent on the facts of the present case where it has come to be specifically asserted by the respondents that neither of the petitioners filed writ petitions. A question would therefore arise whether a mandamus can be issued requiring the respondents to consider the case of the petitioners for appointment contrary to the specific directions issued by the Hon'ble Supreme Court in Kailash Chand (supra) which requires the respondents not to consider any such candidate for appointment who did not file writ petition questioning the award of bonus marks prior to the delivery of the judgment by the Full Bench. In my considered view, the relief as has been prayed for cannot be granted to the petitioners as that would tentamount to overreaching the specific directives contained in the judgment of the Hon'ble Supreme Court. Coming now to the argument that if the respondents have wrongly appointed the respondents No. 4 and 5 even though they, like the petitioner, also did not file any writ petition prior to the judgment in Kailash Chand (supra) and that this has violated the petitioners' right to equality enshrined in Article 14 and 16 of the Constitution resulting into discrimination against them, it should be noted that equality is a positive concept which cannot be enforced in negativity. If any functionary of the Government has passed any wrong order contrary to any provision of law or against any binding judgment of the Supreme Court, that can hardly afford any basis for an argument of discrimination and praying for a writ of mandamus seeking perpetuation of such illegality. An arguments based on such factual foundation would be absolutely fallacious. It is indeed of matter of great concern that the respondents have shown such a scant regard for compliance of the judgment of the highest court of the land. Entire approach to the issue has been callous and lackadaisical inasmuch as their such action has given rise to several such unfounded claims like the petitioners in the present case and others as well. In the case of Deepak Vaishnav (supra) also although it is not appearing from the text of the judgment cited whether all the petitioners with respect to whom the direction was given for offering them appointment also had filed writ petitions prior to the judgment in Kailash Chand (supra). If the respondents No. 4 and 5 and those others have ended up securing appointment even though on strict implementation of the judgment of Hon'ble Supreme Court in Kailash Chand Sharma (supra), they were not entitled to such appointment, it is really a said commentary on the working of the respondent department. In fact the circular issued by the respondents on 24th February, 2006 clearly indicates that the government was cognizant of such cases where the appointments made in the past if are found to be contrary to the directions issued by the Hon'ble Supreme Court in Kailash Chand (supra) on the basis of revised merit list, such appointments are liable to be reviewed. It would be now for the respondents to hold an inquiry to find out if the respondents No. 4 and 5 and like them any other candidates have secured appointments even though on correct interpretation of the judgment of the Hon'ble Supreme Court in Kailash Chand (supra) they having not filed writ petition prior to delivery of the said judgment were not entitled to such appointment and take steps to dispense with their services. And here, I must take note of the statement made by Mr. N.M. Lodha, learned Additional Advocate General appearing for the respondent State that while respondent No. 4 Shri Ishwar Bharti has expired and the government shall take steps to make amends in the case of respondent No. 5 Bhura Lal and take appropriate steps. Coming now to the circular dated 01st July, 2003 on which much reliance has been placed by the petitioners', besides the fact that the respondents have withdrawn this circular by their subsequent order dated 25th July, 2003, an independent and careful reading of this circular dated 01st July, 2003 would clearly shows that this circular has been issued by way of guidelines for implementation of the said judgment. What was said in Clause-1 thereof was that if upon revision of the merit list after exclusion of the bonus marks certain candidates are found to have secured more marks than those who were already appointed, steps should be taken to appoint such more meritorious candidates and if no vacant post was available, sanction was accorded to create requisite number of post to the extent required. In the drafting of the order however a deviation appears to have been made in so far as reference of the appointees with whom comparison of those not appointed was to be made, by referring to them as the once appointed 'after' 18th November, 1999 whereas it should have been for those appointed 'before' 18th November, 1999. Soon upon realizing this mistake, the respondents by their order dated 25th July, 2003 withdraw a circular dated 01st July, 2003. " In the instant case, we find another disturbing feature that the petitioners obtained appointments by misrepresentation of facts before the State Government that they were petitioners before the Supreme Court in the case of Kailash Chand Sharma (supra), whereas, they were not party in the said decision rendered by the Hon'ble Supreme Court; in fact, they have filed application to become interveners which were dismissed by Hon'ble Supreme Court. Suppressing the aforesaid fact, the appointment had been obtained by the petitioners. It is mentioned in the appointment order that appointment was being offered to the petitioners by virtue of being the petitioners before the Hon'ble Supreme Court. Show cause notice, which has been issued, mentions the facts that the petitioners had misrepresented the aforesaid fact and obtained appointment by playing fraud and misrepresentation of facts. When the petitioners were not petitioners before the Hon'ble Supreme Court and application for intervention stood rejected, it is apparent that by playing serious kind of fraud and misrepresentation of facts, petitioners have obtained appointment. Thus, their appointments were null and void. Show cause notices were rightly issued to the petitioners for termination of their services. The interim order dated 15.07.2005 is hereby vacated. Let the State Government take the decision on the show cause notices within fifteen days from today. However, the petitioners have no right to work as the appointments have been obtained by playing fraud and misrepresentation of facts; they are not entitled to get any kind of relief and have no right to work by playing fraud. Accordingly, the writ petitions are dismissed. Stay applications are also dismissed. However, we find that some serious kind of fraud has been played and there is misrepresentation of facts, let the State Government consider to initiate proceedings for criminal prosecution of the petitioners who committed fraud and misrepresentation of facts in accordance with law. A copy of this order be placed in all the files. ;