1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
:::
JUDGMENT
:::
D.B. Civil Special Appeal (Writ) No.89/2005
Rajasthan Public Service Commission.
vs.
Dr.Mahendra Kumar Aseri & Anr.
Date : 23rd July, 2010
HON'BLE JUSTICE SHRI PRAKASH TATIA
HON'BLE JUSTICE SHRI KAILASH CHANDRA JOSHI
Mr.Tarun Joshi, for the appellant.
Mr.MS Singhvi ) for the respondents.
Mr.GR Punia, AAG )
- - - - -
BY THE COURT (PER HON'BLE TATIA, J.) :
Heard learned counsel for the parties.
This special appeal is against the judgment
dated 27.2.2004 passed by the learned Single Judge
in SBCWP No.4275/1997 whereby the learned Single
Judge allowed the writ petition and quashed the
order Annex.6 and directed the appellant RPSC to
modify the select list in the light of the
observations made in the judgment and provide
appointment to the writ petitioner on the post of
Assistant Professor if he is otherwise eligible
for the same.
2
The learned Single Judge principally was of
the view that the RPSC itself in earlier round of
litigation admitted the fact that the writ
petitioner is a member of Scheduled Caste and his
result was kept in the sealed cover and after
opening the sealed cover, it was found that his
name is in the merit list of the candidates
belonging to the Scheduled Caste for appointment
on the post of Lecturer/Assistant Professor in
Orthopedics. The learned Single Judge issued
specific directions to RPSC that it should declare
the result of the writ petitioner and include his
name in the select list as per the merit and
forward the same to the State Government for
making appointment in accordance with law. The
said decision of this Court in petitioner’s
earlier writ petition no.3101/1995 dated 30.1.1996
was challenged before the Division Bench of this
Court in DB Civil Special Appeal No.253/1996 which
was dismissed vide order dated 17.5.1996 and
thereafter, the decisions were challenged before
the Hon’ble Supreme Court in Special Leave to
Appeal (Civil) No.12599/96, the Hon’ble Supreme
Court held as under :-
“Having regard to the fact that the
respondents have already been considered
and selected for appointment on the post
of Assistant Professor in respective
specialities and they have also been
appointed, we do not consider it a fit
3case to go into the question that has
been raised by the petitioner in these
special leave petitions. We, however,
clarify that the direction contained in
order dated June 5, 1995 in Civil Appeals
arising out of special leave petitions
Nos.12740-41/95 were given in the facts
and circumstances of those cases only and
the said directions cannot be treated as
laying down the law regarding selection
for appointment by the Rajasthan Public
Service Commission which has to be made
in accordance with the relevant rules.
The special leave petitions are disposed
of accordingly.”
In view of the above decision, RPSC cannot
dispute the factual position and cannot deny
appointment to the petitioner.
The learned Single Judge also held that
Dr.Ratan Lal Dayama, a SC candidate, was eligible
for appointment in general category and inclusion
of his name in general category candidate was
wrong and, therefore, also, there is one vacancy
which was available for the petitioner. On these
grounds, the writ petition was allowed. Hence,
this special appeal by RPSC.
During the pendency of this appeal, some
orders were passed and in pursuance of those
orders, affidavits were filed by the RPSC and
State and counter was filed by the writ petitioner
and supplementary affidavit was filed by the
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State. However, the State has not challenged the
impugned judgment whereby directions were issued
to the RPSC to forward the name of the writ
petitioner to the State Government for making
appointment to the post.
Learned counsel Mr.Tarun Joshi for RPSC
vehemently submitted that in the year 1996, when
SBCWP No.3101/1995 was decided, in total the
result of 3 SC candidates was kept in sealed cover
and, therefore, the RPSC stated before the High
Court admitting the inclusion of the name of the
writ petitioner in the merit list on the basis of
facts which were available with RPSC and,
therefore, the RPSC has not committed any mistake
as admission was made in ignorance of the fact
that the other candidates whose names have been
kept in sealed cover, will stand where. It is also
submitted that the last candidate given
appointment in general category secured 55 marks
whereas the writ petitioner secured only 51 marks.
It is also submitted that Ratan Lal Dayama was not
having marks more than any of the candidate who
has been put in merit list of the selected
candidates and, therefore, he was not eligible to
get appointment in general category and,
therefore, there was no vacancy in reserved
category wherein only the petitioner could have
been given appointment.
Learned counsel for the RPSC further submitted
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that not only that the writ petitioner in the
above circumstances could not have got appointment
but one Arun Kumar, who was kept in the reserve
list, secured more marks than Ratan Lal Dayama
and, therefore, had there been any vacancy due to
shifting of Ratan Lal Dayama to general category
candidate, the seat could have been given to Arun
Kumar but the writ petitioner could not have got
the seat.
Learned counsel for appellant RPSC has
provided the photostat copy of the record to
justify the action of RPSC.
Learned counsel Mr.MS Singhvi appearing for
respondent no.1 vehemently submitted that whatever
has been argued was not the case of RPSC before
the learned Single Judge when SBCWP No.3101/1995
was decided nor it was a case of the RPSC before
the Division Bench where the judgment of this
Court dated 30.1.1996 was challenged nor it was
the case of RPSC before the Hon’ble Apex Court
where the special leave to appeal was dismissed as
late as on 17.8.1998. It is also submitted that
the writ petitioner is appointee of the year 1991.
He sought relief from the Court that he may not be
subjected to screening for the post of Lecturer
and he be called for interview straightaway by the
RPSC for consideration of his case on merit for
appointment to the post concerned. The writ
petitioner was granted full relief by High Court
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and judgment dated 30.1.1996 attained finality and
the writ petitioner is in service obviously from
1991 and after judgment of Hon’ble Supreme Court
dated 17.8.1998, the petitioner’s entitlement to
appointment cannot be questioned as the issue is
barred by principle of res judicata. Looking to
the dates on which DB Special Appeal by the High
Court and Leave to Appeal by the Hon’ble Supreme
Court were decided, it is clear that the writ
petitioner could not have even applied for the
post afresh or again in view of the judgment of
this Court and, therefore, it does not lie in the
mouth of RPSC now to say that there was any error
of fact. It is also submitted that not only the
RPSC want to resile from its own admission but it
is in appeal seeking relief which may be just
contrary to the final judgment of the highest
court of the land.
Learned counsel for writ petitioner also drew
our attention to the merit list submitted along
with one application and affidavit filed by the
writ petitioner in this appeal to show that the
last person given appointment in general category
after Shyoji Lal Sharma has been placed in
seniority list at S.No.29 whereas Babu Lal Khajoti
has been placed at S.No.26 and Babu Lal Khajoti
and Shyoji Lal Sharma both had equal marks i.e. 53
and that also falsifies the facts which now the
appellant RPSC wants to show to this Court.
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Learned AAG Mr.GR Punia stated that the State
has not given appointment to the writ petitioner
because of the reason that his name was not
recommended by the RPSC for appointment.
We considered the submissions of learned
counsel for the parties and perused the record of
writ petition as well as Commission shown to us.
The petitioner was already in service
obviously as ad hoc appointee. He was eligible to
be appointed for the post of Lecturer/Assistant
Professor in Orthopedics. He was asked to face the
screening test and that decision was challenged by
the petitioner by filing SBCWP No.3101/95. In
pursuance of the directions of this Court, the
petitioner’s sealed cover was opened and
considering the facts of the case, this Court very
specifically directed by judgment dated 31.1.1996
as under :-
“As a result of the aforesaid discussion,
the instant writ petition is allowed with
a direction to respondent No.2-Commission
to declare the result of the petitioner
on the post of Assistant Professor in
Orthopedics and include his name in the
select list as per merit and forward the
same to the State Government for making
appointment in accordance with law. Costs
easy.”
8
The said judgment dated 30.1.96 was challenged
before the Division Bench and the Division Bench
approved the findings of the learned Single Judge.
Thereafter, the above judgments were challenged in
SLP No.12599/96 with connected SLPs before the
Hon’ble Apex Court.
It is clear from the above facts that the
Hon’ble Apex Court decided SLP on 7.8.98. Till
7.8.98, the fact position before the Court as we
can notice from the order of Hon’ble Apex Court
was that even the Hon’ble Apex Court noticed that
the respondent along with others have already been
considered and selected for the post of Assistant
Professor in respective specialities and he has
also been given appointment. As late as till
7.8.98, the appellant did not question the issue
about the eligibility of the writ petitioner for
the said post on the basis of merits. Therefore,
the appellant at this belated stage cannot take
help of any mistake if it was committed by it
after such a long period which certainly denied
the writ petitioner opportunity to seek
appointment subsequently. The appellant cannot say
that it had no knowledge of the fact which now it
want to place before this Court when the Hon’ble
Apex Court dismissed the SLP of the appellant in
the year 1998. It is not a case of estopple
simplicitor as estopple binds the parties only and
not to the Court but resjudicata binds the Court
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and in the facts of the case, we do not find any
justification for passing any order in appellate
jurisdiction so as to render the final judgment
upheld upto the Hon’ble Apex Court to become
ineffective and inoperative and deny the
appointment to a person who is in service since
1991 and was found validly selected by the
Commission for appointment to the post.
In view of the above discussion, there is no
merit in this appeal and the same is hereby
dismissed.
[KAILASH CHANDRA JOSHI], J. [PRAKASH TATIA], J.
S.Phophaliya