Judgment:
Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. This appeal is directed against the order passed by the learned Single Judge dated 14.10.1998 rejecting the writ petition on a hyper technical ground because of the over-writing in the annexure filed alongwith the writ petition. The petition was dismissed even without issuing notice to the respondents.
3. As will be presently seen that after the appeal was admitted and respondents were required to file reply, in fact, avernments on the basis of which this petition was founded were not disputed. The petitioner while working as a Teacher Gr. III in the Panchayat Samiti had competed for selection to the post of Sub-Inspector of Police in pursuance of Advertisement dated 3rd Oct., 1994. The Advertisement was for 26 posts. The petitioner got selected and his name was recommended by the Rajasthan Public Service Commission, however the Govt. rejected the recommendation of the Rajasthan Public Service Commission in the case of petitioner by mentioning that the petitioner is over age for the post and offered appointment to person lower in merit than the petitioner in the same selection. The petitioner represented that since he was a Govt. employee, the rule relating to the age relaxation in the case of a candidate who is an in service Govt. servant applied, and if that is taken into consideration, the petitioner was not over age. Having no response from the Govt., the petitioner filed Writ Petition No. 579 of 1996 and the same was decided by this Court in the first instance by the learned Single Judge by dismissing the petition. However, the petition was allowed by the Division Bench on 2nd July, 1997. The Court held that Panchayat Service constituted under Section 89 of the Act of 1994 or under Section 86 of the Rajasthan Panchayat Samities and Zila Parishad Act, 1959 is the civil service of the State as it has all the characteristics of that service and its members hold a civil post. The teachers working in the Govt. schools which are under the control of Panchayat Samities and Zila Parishads are therefore, the civil servants under the State Govt. and are entitled for relaxation of three years age as has been made applicable to the State Govt. employees.
4. On receiving this judgment, the petitioner again approached the Rajasthan Public Service Commissioner for reviewing its recommendation for appointment against the selected candidates for the post of Sub-Inspector. The Rajasthan Public Service Commission again recommended the name of petitioner by pointing out that as per merit his place in order of merit is in between 110 and 111 at 110-A. However, the Govt. did not respond. A Contempt Petition was filed which was rejected by pointing out that the petitioner may approach for enforcement of his rights which are made available to him in the judgment of Division Bench of this Court and if the petitioner is not being given those benefits, he may take appropriate proceedings. This led to filing of the present writ petition.
5. In the reply submitted by the respondents, the fact that the petitioner was placed in the order of merit at 110-A and that the persons lower in merit were offered appointment is not in dispute. The only ground which has been put forward is that the Govt. has filled 360 posts by giving appointment to all the candidates.
6. We are of the opinion that a clear case of breach of fundamental rights guaranteed under Article 14 & 16 is made out and it is shown that the petitioner is vigilantly pursuing his remedy right from the day his fundamental right was breached. The fundamental rights cannot be defeated by the respondents' own act and by not remedying the breach of such fundamental rights despite petitioner immediately approaching them and pointing out relevant provisions of rules. If such breachers are allowed to go unremedied even in the case of vigilant sufferer, it will be making such fundamental guarantees illusory. If any other view is taken then litigation by vigilant citizens to protect their fundamental rights can easily be defeated in most cases because of the vagaries of the time that may be taken in conducting the litigation. Not giving relief to the petitioner who complains violation of fundamental right and that breach is established and also no negligence is found in pursuing the remedies.
7. In the present case, it is established beyond doubt rather it is admitted that while the petitioner was found in order of merit at 110-A but the appointments were given upto 360, and denying appointment to the petitioner on wholly unsustainable ground in pursuance of his selection. There is no other ground for defeating his claim for appointment. It is also not a case of the respondents that the State decided not to fill the vacancies upto the number of the post advertised at all or the appointment was given only upto the merit order above the petitioner.
8. In this connection reference may be made to State of Haryana v. Subhash Chandra Marwaha : (1973)IILLJ266SC , wherein the Apex Court explained:
If the State Govt. while making the selection for appointment had departed from the ranking given in the list, there would have been legitimate grievance on the ground that State Govt. had departed from the rules.
9. It is also stated by learned Counsel for the petitioner that the physical fitness was also certified at the time of his selection and therefore, even the ground of denying the post on account of his being physically unfit also cannot be raised against him. It is not a case in which the petitioner is not found fit for appointment on the post of Sub-Inspector.
10. On admitted fact the overwriting by pen in the petition can only be taken to be a typographical error which was corrected, but remained to be initialled.
11. In these circumstances, we direct the respondents to consider the case of the petitioner and if there is no other ground for denying appointment, on verifying the antecedents of the petitioner, an appointment may be offered to him in pursuance of the selections made by the Rajasthan Public Service Commission for the post of Sub-Inspector in pursuance of Advertisement dated 3.10.1994. Effect to this direction may be given within a period of six weeks. While the petitioner be placed in seniority in order of merit of common selection amongst persons appointed in pursuance of the same selection, he may be appointed with effect from a person lower in order of merit than the petitioner was appointed and consequential benefit be extended to him. However, he shall not be entitled to actual arrears of remuneration until the date of actual appointment, his notional fixation as per seniority in the pay scale be made.
12. Appeal is allowed as stated above. Judgment under appeal is set aside and the writ petition is allowed.
13. No costs.