Girdhar Kumar Dadhich
& ANR. Vs. State of Rajasthan & Ors.  INSC 137 (23 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 388 OF 2009 [Arising out
of SLP (Civil) No. 10570 of 2006] Girdhar Kumar Dadhich and another ....
Appellants Versus State of Rajasthan and others .... Respondents
S.B. SINHA, J.
of a decision of this Court in Kailash Chand Sharma v. State of Rajasthan and
others, [ (2002) 6 SCC 562 ] is in question in this appeal which arises out of
a judgment and order dated 14th February, 2006 passed by the High Court of
Judicature of Rajasthan. Jaipur Bench, Jaipur in D.B. Civil Special Appeal (W)
No. 147 of 2006.
an advertisement was issued on 9th August, 1998 for filling up 10 posts of
Physical Education Teacher Grade-III. 10 Bonus marks were to be granted for
candidates who were resident of a particular district, while 5 bonus marks to
the candidates belonging to rural areas.
and/or legality of the said provision for grant of bonus marks was questioned
before the said High Court by filing writ petition in the year 1999. The
question was referred to a Full Bench. A Full Bench of the said Court by a
judgment and order dated 18th November, 1999 held the said provision to be
declaration of the said law by the Full Bench of the High Court, appellants
herein filed two writ petitions being No. 1818/2001 and 1802/2001 before the
said High Court inter alia contending that in view of the said Full Bench
decision, their position would be at serial Nos. 6 and 9 in the merit list. The
said writ petitions remained pending.
Court in Kailash Chand Sharma (supra) while upholding the decision of the Full
Bench to the effect that grant of such bonus marks was unconstitutional, in
exercise of its jurisdiction under Article 142 of the Constitution of India,
thought it fit and proper to invoke the doctrine of prospective over-ruling,
appointments made up to 17.11.1999 need not be reopened and reconsidered in the
light of the law laid down in this judgment".
the State of Rajasthan appointed Bhanwar Lal Gosar (Mothsar) by an order dated
12th June, 2003. Two writ petitions were filed by the appellants. However, in
the meanwhile one Duli Chand had filed a writ application being S.B. Civil Writ
Petition No.1401 of 2003 before the High Court. A learned Single Judge of the
High Court dismissed the said writ petition on 17th February, 2003 opining that
the same was barred by delay and latches. Following Duli Chand (supra) the
appellants' writ applications (Civil Writ Petition Nos. 5510/2003; 1818/2001
and 1802/2002) were also dismissed by the same learned Judge by an order dated
5th December, 2003.
by and dissatisfied therewith, the appellants filed an intra- court appeal
being D.B. Special Appeal (W) No. 103 of 2004 which was disposed of by a
Division Bench of the High Court giving liberty to the appellants to make a
representation to the concerned authority within ten days with a direction to
the authority to dispose of the same within three months thereafter.
submitted their representations on 10th July, 2005 which were rejected by the
respondents by an order dated 30th September, 2005.
challenged the said order before the High Court by filing yet another writ
application being S.B. Civil Writ Petition No.9253 of 2005, which was dismissed
by a learned Single Judge of the said Court following the order passed in Duli
preferred an intra court appeal thereagainst. A Division Bench of the High
Court, however, by reason of the impugned judgment and order refused to
interfere in the matter on the premise that the issue stands squarely covered
by the decision of this Court in Kailash Chand Sharma (supra).
M.R. Calla, learned senior counsel appearing on behalf of the appellants, would
submit :- 4 (i) The Division Bench of the High Court misread and
misinterpreted the decision of this Court in Kailash Chand Sharma (supra) in so
far as it failed to take into consideration that the same covered the cases of
only those employees who were appointed on or before 18th November, 1999.
(ii) Bhanwar Lal
Mothsar having been appointed only in the year 2003 against the vacancy which
remained to be filled up, Kailash Chand Sharma (supra) cannot be said to have
any application whatsoever.
(iii) The contention
of the respondents that two vacancies filled in the year 2003 - one against the
OBC quota and another against the general quota by the persons who were placed
higher in the select list than the appellants was valid in law, cannot be
accepted as the respondents had already appointed four persons against the OBC
quota in the year 1999 itself.
(iv) As a vacancy
still exists, even without disturbing the existing appointees, the appellant(s)
can be accommodated.
Navin Singh, learned counsel appearing on behalf of the respondents, on the
other hand, would contend:
raised by the appellants having not been raised before the High Court, the same
should not be allowed to be raised for the first time before this Court.
having not filed any writ petition in the year 1998- 1999 the High Court had
rightly dismissed the writ petition as being barred by delay and latches.
having been made on the vacant posts only in relation to the candidates of the
reserved category and/or who had obtained higher position in the select list,
appellants cannot be directed to be appointed at this stage.
adverting to the rival contentions raised by the parties we may notice that
according to the appellants even today their exists two vacancies.
The purported chart
prepared by the appellants and the records placed before us show some
discrepancy. At this stage, thus, it is not possible for us to go into the
details thereof particularly when the candidates already appointed are not
parties before us.
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.
the merit list was modified in terms of the dicta laid down by this Court in
Kailash Chand Sharma (supra).
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.
is stated that two appointments were made in the year 2003 - one against OBC
quota and another against General quota. It is not possible for us to go into
the question as to whether the entire quota for appointment in the category of
OBC was filled up in the year 1998-1999 itself and thus appointment made
against the vacant post from the said quota is illegal or not. The concerned
respondents are not parties before us. We have not been informed as to whether
any other person has been left out from the original merit list 19. 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 State of Rajasthan
& ors. vs. Jagdish Chopra [(2007) 8 SCC 161], this Court held:
for teachers in the State of Rajasthan is admittedly governed by the statutory
rules. All recruitments, therefore, are required to be made in terms thereof.
Although Rule 9(3) of the Rules does not specifically provide for the period
for which the merit list shall remain valid but the intent of the legislature
is absolutely clear as vacancies have to be determined only once in a year.
Vacancies which arose in the subsequent years could be filled up from the
select list 8 prepared in the previous year and not in other manner. Even
otherwise, in absence of any rule, ordinary period of validity of select list
should be one year. In State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC
561, this Court opined:
(SCC p.564, para 9)
"9. In the aforementioned situation, in our opinion, he did not have any
legal right to be appointed. Life of a panel, it is well known, remains valid
for a year. Once it lapses, unless an appropriate order is issued by the State,
no appointment can be made out of the said panel."
It was further held:
(SCC p.565, para 13) "13. The decisions noticed hereinbefore are
authorities for the proposition that even the wait list must be acted upon
having regard to the terms of the advertisement and in any event cannot remain
operative beyond the prescribed period."
xxx xxx xxx
11. It is
well-settled principle of law that even selected candidates do not have legal
right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47,
and Asha Kaul v. State of J&K (1993) 2 SCC 573)"
the reasons aforementioned, we do not find any merit in this appeal, which is
dismissed accordingly. However, in the facts and circumstances of the case
there shall be no order as to costs.
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