Rajasthan High Court - Jaipur
State Of Rajasthan vs Bharat Yadav S/O Rajkumar Yadav ... on 3 February, 2023
Bench: Pankaj Mithal, Anoop Kumar Dhand
[2023/RJJP/001649]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Review Petition (Writ) No. 218/2022
In
D.B. Special Appeal Writ No. 1129/2022
1. State Of Rajasthan, Through Principal Secretary,
Department Of Home, Secretariat, Jaipur.
2. The Director General Of Police, Police Head Quarters,
Near Nehru Place, Tonk Road, Jaipur.
----Petitioners
Versus
1. Bharat Yadav S/o Rajkumar Yadav, Aged About 24 Years,
R/o Quarter No. 244, RPA Jaipur, District Jaipur,
Rajasthan.
2. Rajasthan Public Service Commission, Through Its
Secretary, Ajmer.
----Respondents
For Petitioner(s) : Mr. R.N. Mathur, Sr. Advocate, with Mr. Shovit Jhajharia - Through VC Mr. Ram Pratap Saini For Respondent(s) : Mr. Rajesh Maharshi, AAG, with Ms. Shretima Bagri HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order 03/02/2023 (1) The review petitioner has approached this court seeking review of the order dated 9.11.2022 passed by court by which the Special Appeal filed by the respondent State has been allowed and an order dated 25.5.2022 passed by the learned Single Judge has been quashed and set aside.
(Downloaded on 08/02/2023 at 12:13:39 AM) [2023/RJJP/001649] (2 of 6) [WRW-218/2022] (2) The bare necessary facts giving rise to the present review petition, are that the petitioner sustained fracture due to fall from stairs and he was operated on 24.1.2022, hence he wanted extension of two months for appearing in Physical Efficiency Test (for short "PET"). When extension was not provided to him, he submitted a petition before the Single Bench with the prayer that the respondents be directed not to insist him to appear in PET and 60 days extension be granted to him to appear in the above PET.
(3) The writ petition was allowed by the learned Single Judge vide order dated 25.5.2022 and the respondents were directed to fix a new date for holding PET for the petitioner and if the petitioner falls in merit, then appointment be given to him on the post of Sub Inspector.
(4) Feeling aggrieved by the order dated 25.5.2022 the State submitted Special Appeal before this court and the same was disposed of in the light of order dated 30.1.2020 passed in D.B. Special Appeal (Writ) No. 1310/2019 Dropadi Jyani v. State & Ors and the order dated 25.5.2022 passed by the Single Bench has been quashed.
(5) Learned Senior Counsel for the petitioner submits that the order dated 30.1.2020 passed by the Division Bench in the case of Dropadi Jyani(supra) is not applicable in this case because in the case of Dropadi Jyani, she was assaulted by the accused persons and injuries were caused to her, for which FIR was lodged against the accused persons. While in the present case the petitioner sustained injuries due to fall from stairs. Counsel (Downloaded on 08/02/2023 at 12:13:39 AM) [2023/RJJP/001649] (3 of 6) [WRW-218/2022] submits that the case of Dropadi Jyani pertains to recruitment on the post of Constable, while the present case of the petitioner pertains to the recruitment on the post of Sub Inspector. Learned counsel submits that a sympathetic view be taken in favour of the petitioner and order dated 9.11.2022 passed by this court be reviewed and the relief claimed by the petitioner in the writ petition be granted in terms of the order passed by the learned Single Judge.
(6) Per contra, learned counsel for the respondent opposed the arguments raised by the counsel for the petitioner and submitted that the controversy in issue in this matter is squarely covered by the judgment of Dropadi Jyani (supra), hence this court has rightly allowed this Special Appeal filed by the State. Counsel submits that the directions issued by the learned Single Judge were contrary to the judgment in Dropadi Jyani (supra) and the same has been rightly quashed and set aside by this court. Counsel submits that the order dated 9.11.2022 passed by this court is just and proper looking to the facts and circumstances of the case, hence no interference of this court is warranted to review or recall the same.
(7) Heard and considered the submissions.
(8) At the outset it is observed that Dropadi Jyani's case (supra) was decided in the light of the order dated 14.11.2018 passed by the Division Bench of this court in the case of Sunil Kumar Jani v. State & Ors D.B. Special Appeal (Writ) No. 1685/2018. The same was dismissed with the following observations :-
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[2023/RJJP/001649] (4 of 6) [WRW-218/2022] "Successfully clearing the written examination for being appointed as a Constable GD the problem which the appellant faced was of not being able to participate at the physical efficiency test to be held on 10.09.2018. During the physical efficient test, the petitioner was required to run 5 kms. in 25 minutes. The appellant suffered an accident and had to undergo operation of the left knee on 03.08.2018 he was advised not to run for the next three months.
2.The appellant made a request to defer he being subjected to the physical efficient test, the department refused because this would have delayed drawing up of the final merit list and those who had cleared the written examination and had also cleared the physical efficient test. The appellant filed a writ petition relying upon clause 12 of the standing order, which reads as under:
"12. Medical Examination:-
Immediately after the declaration of the merit list, candidates whose names appear in the merit list shall be required to undergo a Medical Test by a Government Medical Officer. The Appointing Authority shall move the Chief Medical and Health Officer/Principal Medical Officer concerned to detail one or more medical officers, as required, for this purpose, as per enclosed proforma (Annexure E).
Candidates who are found temporarily unfit and whose defect can be rectified within 6 months as per the opinion of the Medical Officer shall be eligible for appointment after the said period provided they are found fit by medical board. Candidates who fail to conform to the prescribed standards of medical fitness even on re- examination within stipulated time shall be declared medically unfit for appointment and their candidature shall stand cancelled."
3.The learned Single Judge has correctly pointed out that the said clause pertained to the requirement of government servants to be declared medically fit after being medically examined before they are to join government service. The clause simply records that those found temporarily medically unfit and whose defects can be rectified within six months, shall be eligible for appointment after said period provided they are found to be fit by the medical board. The clause does not relate to deferment of undergoing physical examination test.
4.The appeal is dismissed."
(9) Following the order dated 14.11.2018 passed in the case of Sunil Kumar Jani (supra), the Division Bench of this court has dismissed the Special Appeal filed by Dropadi Jyani (supra). (Downloaded on 08/02/2023 at 12:13:39 AM) [2023/RJJP/001649] (5 of 6) [WRW-218/2022] (10) Looking to the similar facts of this case the appeal filed by the State was allowed in the light of the above two judgments in the case of Dropadi Jyani (supra) and Sunil Kumar Jani (supra). (11) Once the Special Appeal filed by the State has been allowed after hearing the arguments of both sides, now review petition cannot be used as a tool for changing the opinion or view of the court. The review petition can be entertained only when there is an error apparent on the face of the record. It is not open for this court to re-appreciate the same facts again and reach to a different conclusion. Conclusion once arrived at after appreciating the facts and after hearing the rival sides, cannot be assailed in review petition unless it is shown that there is an error apparent on the face of the record. In the present case the review petitioner has not been able to point out any error apparent on the face of the record, but on the contrary under the guise of the instant review petition, the petitioner is challenging the order passed by this court which is under review.
(12) We find no force in the alternative argument of the counsel for the Review Petitioner that sympathetic view be taken in favour of the petitioner. Sympathy alone cannot be a ground to grant relief to the petitioner. It is well settled principle of law that sympathy which is not within the precincts of law, cannot be the basis to grant something which is otherwise impermissible. The relief sought for cannot be granted to the review petitioner by adopting a sympathetic view.
(13) In view of the discussion made hereinabove, we do not find any error apparent on the face of the record to recall or (Downloaded on 08/02/2023 at 12:13:39 AM) [2023/RJJP/001649] (6 of 6) [WRW-218/2022] review the order dated 9.11.2022. No case is made out to entertain the petition. In the light of the above, the instant application being devoid of merit, stands dismissed. (ANOOP KUMAR DHAND), J. (PANKAJ MITHAL), CJ. .db/2 (Downloaded on 08/02/2023 at 12:13:39 AM) Powered by TCPDF (www.tcpdf.org)