JUDGMENT
Sunil Kumar Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 9.11.1995 with a prayer that the impugned order dated 22.7.1995 (Annex. P. 13) by which the petitioner was not given appointment on the post of Teacher Grade-III on the ground that the select list had expired be quashed and set aside with all consequential benefits and the petitioner may be given appointment on the post of Teacher Grade-III according to his merit.
2. The facts of the case as put forward by the petitioner are as under
(i) That the petitioner passed his B.Ed. examination from Mahirishi Dayanand University, Rohtak (hereinafter referred to as the University, Rohtak) by correspondence course and thus, the petitioner had requisite qualification to be appointed on the post of Teacher Grade-III.
(ii) That in the year 1991, the respondent No. 3 (The Chief Executive Officer and Secretary Dist. Establishment Committee, Zila Parishad, Churu) invited applications for the post of Teacher Grade-III under the Zila Parishad, Churu. The said advertisement (Annex. P. 2) was published in the Rajasthan Patrika dated 24.12.1991. In pursuance that that advertisement (Annex. P. 2), the petitioner applied for the post of Teacher Grade-III on the basis of B.Ed. Degree obtained from University, Rohtak.
(iii) That the respondents prepared a provisional merit list of the suitable candidates calling them for the interview. In that provisional merit list, the name of the petitioner was not included. The petitioner came to know from the respondents that his name was not included because the B.Ed., degree obtained by him from the University, Rohtak was not recognized by the State Government and, therefore, the candidature of the petitioner was not considered and he was not called for the interview which was held on 13.3.1992.
(iv) That when the candidature of the petitioner was not considered by the respondents, he filed a suit before the Munsif, Churu. In that suit temporary injunction was granted by the Court on 7.4.1992 after hearing both the parties directing the respondent No. 3 to consider the candidature of the petitioner for the post of Teacher Grade-III and further direction was given to include his name in the select list according to his merit and give him appointment. A copy of order of temporary injunction dated 7.4.1992 is marked as Annex. P-3.
(v) That after the temporary injunction dated 7.4.1992 (Annex. P. 3) was granted, the petitioner approached the respondent No. 3 to give him appointment on the post of Teacher Grade-III as per Court’s order.
(vi) That some other candidates whose candidature was not considered on the ground that they obtained B.Ed. degree from the University, Rohtak filed writ petition before this Hon’ble Court and this Court vide order dated 21.2.1991 allowed that writ petition holding that the said degree be recognized and even special appeal filed by the State Government against the order dated 21.2.1991 was dismissed and the SLP was also rejected. Thereafter the order dated 30.4.1993 (Annex. P. 6) was issued by the Government of Rajasthan clarifying that the B.Ed. Degree obtained from the University, Rohtak shall be recognized for the purpose of giving appointment on the post of Teacher Grade-III.
(vii) That thereafter the petitioner again moved an application on 11.9.1993 (Annex. P. 7) seeking appointment on the post of Teacher Grade-III.
(viii) That in pursuance of advertisement No. 5/91 (Annex. P-2), final select list was issued on 14.10.1993 and in that select list,/the last candidate was having 47.86% marks whereas as per the merit formula, the petitioner’s total percentage was 48.85% and this fact was also admitted by the respondents while filing reply in the Court of Munsif Magistrate, Churu.
(ix) That after issuance of final select list on 14.10.1993, the petitioner again moved applications dated 3.11.1993 and 11.2.1994 (Annex. P. 8 and P. 9 respectively) for seeking appointment on the post of Teacher Grade-III.
(x) That the further case of the petitioner is that on 31.5.1994, the respondent No. 2 (Director, Gramin Vikas and Panchayati Raj Department, Jaipur) directed respondent No. 3 (Chief Executive Officer) to give appointment to the petitioner in pursuance of advertisement No. 5/91 (Annex. P. 2). A copy of order dated 31.5.1994 is marked as Annex. P. 10, but the respondent No. 3 refused to give appointment to the petitioner. Thereafter Secretary, Gramin Vikas and Panchayati Raj Department, Jaipur passed an order dated 22.7.1995 (Annex. P. 13) stating that it was not possible to give appointment to the petitioner as the period of select list had expired. Hence, this writ petition with the abovementioned prayer.
3. The main contention of the learned Counsel for the petitioner is that the. order dated 22.7.1995 (Annex. P. 13) was passed by the Secretary, Gramin Vikas and Panchayati Raj Department in violation of Articles 14 & 16 of the Constitution of India as when the State Government has recognized the B.Ed. degree of University, Rohtak and thereafter through order dt. 31.5.1994 (Annex. P. 10), the respondent No. 2 directed respondent No. 3 to give appointment to the petitioner on the post of Teacher Grade-III, therefore denial of appointment to the petitioner on the ground that the select list had expired is arbitrary and illegal and the order dated 22.7.1995 should be set-aside.
4. Reply to the writ petition was filed by the respondents and in that reply, they have taken two main objections
(1) Since the petitioner had already availed the remedy of filing civil suit, therefore, the present writ petition is not maintainable and should be dismissed on this ground alone.
(ii) That the petitioner has filed this writ petition after expiry of select list dated 14.10.1993 and, therefore, from this point of view also, the petitioner is not entitled to the relief sought for.
5. I have heard both and perused the record.
6. Before proceeding further, it may be stated here that in the beginning the petitioner was not given appointment on the post of Teacher Grade-Ill on the ground that the B.Ed. degree obtained by the petitioner from the University, Rohtak was not recognized by the State of Rajasthan, but after litigation this Court gave finding that the B.Ed. degree obtained from the University, Rohtak should be recognized and for that the respondents faught upto Hon’ble Supreme Court and the Hon’ble Supreme Court dismissed the SLP filed by the State Government. Thereafter the respondent No. 2 vide order dated 31.5.1994 (Annex. P. 10) directed respondent No. 3 to give appointment to the petitioner on the post of Teacher Grade-III. This is one of the aspects of the matter and for that the petitioner should not be treated at fault.
7. It may be stated here that the respondents finally refused to give appointment on the post of Teacher Grade-III vide order dated 22.7.1995 (Annex. P. 13) on the ground that the select list had expired.
8. In my opinion, passing of order dated 22.7.1995 (Annex. P. 13) is without jurisdiction and illegal as the petitioner from the very beginning was contesting the matter and was basing his claim on the B.Ed. degree obtained by him from the University, Rohtak. Therefore, denial of appointment to him on the post of Teacher Grade-III on the ground, that the select list had expired is not justified. The delay was caused by the respondents themselves as they doubted the genuineness of the B.Ed. degree obtained by the petitioner from the University, Rohtak and when the matter was finally decided by the Hon’ble Supreme Court, the respondent No. 2 vide order dated 31.5.1994 (Annex. P. 10) directed the respondent No. 3 to give appointment to the petitioner in pursuance of Advertisement No. 5/91 (Annex. P. 2) on the post of Teacher Grade-III and later on denied him appointment on the post of Teacher Grade-Ill through order dated 22.7.1995 (Annex. P. 13) on the ground that the select list had expired. Therefore, in these circumstances, it cannot be said that the petitioner was at fault. Hence, the respondents cannot deny appointment to the petitioner on the post of Teacher Grade-III on the ground that the period of select list had expired, for that judgments of this Court in the cases of Idan Singh v. State of Rajasthan reported in RLR 2000 (3) 715 and Anita Chopra v. State of Rajasthan reported in RLR 2001 (2) 580 and the judgment of Hon’ble Supreme Court in the case of Purushottam v. Chairman, M.S.E.B. and Anr. reported in 1999 SCC (L&S) 1050 may be referred to.
9. The Hon’ble Supreme Court in the case of Purushottam, (supra) held that duly selected candidate could not be denied appointment on the pretext that panel’s term had expired and the post had been filed by someone else. Such denial creates discrimination and is arbitrary and cannot be sustained.
10. Hence, it may be concluded that if the select list expires because of no fault of the petitioner and the petitioner was found otherwise suitable to be appointed, then expiry of select list would not come in the way of the petitioner for giving appointment as denial of appointment is violative of fundamental right as enshrined under Articles 14 & 16 of the Constitution of India.
11. So far as first argument is concerned, it is to be rejected merely on the ground that in this writ petition, the order dated 22.7.1995 (Annex. P. 13) has been challenged which was passed by the Secretary, Gramin Vikas and Panchayati Raj Department and, therefore, it has no bearing with the controversy involved in the suit. Hence, the first argument is rejected.
12. For the reasons mentioned above, the order dated 22.7.1995 Annex. P-13 is liable to be quashed and this writ petition is liable to be allowed.
Accordingly, the present writ petition is allowed and the order dated 22.7.1995 (Annex. P. 13) passed by the Secretary, Gramin Vikas and Panchayati Raj Department, Jaipur is quashed and set aside and the respondents are directed to give appointment to the petitioner as teacher Grade-III in pursuance of the advertisement No. 5/91 (Annex. P. 2) within a period of two months subject to other eligibility criterion. On his appointment, the petitioner shall not be entitled for the emoluments of the post for the past, however he will be entitled to claim seniority over the persons who were lower in merit but have been offered appointment prior to him.
Cost made easy.