Rajasthan High Court - Jodhpur
Jaita Ram & Anr vs State & Anr on 10 January, 2011
Bench: Arun Mishra, Prakash Tatia
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
1. D.B. CIVIL WRIT PETITION NO.3310/2007
Jaita Ram & Anr. Vs. State of Raj. & Ors.
2. D.B. CIVIL WRIT PETITION NO.3567/2007
Ashok Kumar Choudhary Vs. R.P.S.C. & Anr.
Date of Order :: 07-01-2011
: PRESENT :
HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA
HON'BLE MR. JUSTICE PRAKASH TATIA
Mr. Hanuman Singh, Mr. Ashok Kumar Choudhary, for the petitioners. Mr. G.R. Punia, Addl. Advocate General for the State. Mr. R.L. Jangid, for the Rajasthan High Court. Mr. Siddharth Joshi, Mr. Khet Singh, for the Rajasthan Public Service Commission.
Heard learned counsel for the parties.
This petition has been preferred by the petitioners in the year 2007 for declaring adoption and application of scaling method unjust, arbitrary and contrary to the Rules of 1955 in the matter of Rajasthan Judicial Service Examination. Prayer has also been made to direct the respondents to prepare a fresh list of eligible candidates for interviews on the basis of their raw marks secured in the examination.
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It is averred by the petitioners in the petitions that they appeared in the RJS Examination, 2005 pursuant to the advertisement (P/1). Note No.1 of the advertisement indicates that 27 posts which were advertised, were regarding backlog of year 2001 and 2003. Out of said 27 posts, 6 posts of Scheduled Tribe were temporary, total 21 posts of backlog and 58 posts were created till the Fast Track Courts' Judges continues. These posts were purely on temporary basis. In case of non-availability of posts on discontinuation of Fast Track Courts, the incumbents who were appointed will be discharged.
Learned counsel appearing for the petitioners submitted that the scaling which had been resorted to by the Rajasthan Public Service Commission (for short, 'RPSC') was impermissible in RJS Examination. In pursuance of the Notification dated 19.11.2005, no such condition of scaling was mentioned. The matter with respect to the scaling stands concluded by this Court for the Examination, 2005 in Sarita Noushad & 17 ors. Vs. RPSC & Ors. (2009) 4 WLC 679 in which it has been laid down by this Court following the decision of the Apex Court in Sanjay Singh Vs. U.P. Public Service Commission, Allahabad & Anr. (2007) 3 SCC 720 that in Rajasthan Judicial Service Examination, as all the subjects were compulsory, the method of scaling of marks could not have been resorted to. The RPSC was directed to consider the cases of the petitioners for future vacancies as 3 the same relief has been granted by the Apex Court in Sanjay Singh Vs. UPPSC & Anr.(supra). This Court passed the following order in Sarita Noushad & 17 ors Vs. RPSC & Ors. (Supra) thus-
"60. Supreme Court in SLP (C) No.10539/2007 filed by Sarita Noushad and another SLP (C) No.10631/2007 while making the further appointments subject to the decision of the writ petitions, on 12.12.2008, requested this Court for early disposal of the writ petition at an early date but the writ petitions could not be disposed of for one reason or the other. As held above, the persons selected and appointed against the vacancies of the RJS Examination, 2005 have worked for one year and a half, therefore, we have not disturbed their appointments. But still, in the aforesaid facts and circumstances of the present writ petitions, the issue remains that most of the petitioners, who have approached the Court in time in 2007, either before interview or just after interview, have suffered on account of scaling which has already been declared illegal while answering Questions No.(i) to (iv) in the affirmative and the delay in disposal of the writ petitions may not be allowed to stand in their way for granting relief for all times to come and simply on the ground that the advertised vacancies have been filled up even after obtaining more raw marks plus interview marks and some of them have also been deprived of interview as per their raw marks and cut off marks worked out on the basis of raw marks in the RJS Examination, 2005. In order to save the petitioners from injustice which has been caused on account of violation of RJS Rules, 1955 and violation of Articles 14 and 16 of the Constitution of India, as discussed in detail in the preceding paras, Question No.(v) is also answered in the manner that Sanjay Singh (supra) is fully applicable to the facts and circumstances of the present cases.
61.The ends of justice can only be met out if the petitioners' cases are considered for future vacancies as the same relief has been granted by the Supreme Court in Sanjay Singh (Supra). Therefore, the writ petitions succeed and the same are allowed as indicated below:
(i)RPSC is directed to prepare the list of the candidates of RJS Examination, 2005 as per Schedule-III of the RJS Rules, 1955, to be called for 4 interview as per raw cut off marks for the purpose of ascertaining whether any of the petitioners was entitled to be called for interview in their respective categories.
(ii)RPSC is further directed to prepare a list as per Schedule-III of the RJS Rules, 1955, of RJS Examination, 2005, of the petitioners who have obtained more raw marks plus interview marks than the selected and appointed candidates, in their respective categories.
(iii)All the petitioners who were entitled for interview as per Schedule-III in the ratio of 1:3 in their respective category as per their raw marks considering the fact of cut off raw marks but have not been called for interview, as per Relief No.(i), be now called for interview along with the candidates to be interviewed for the examination of RJS, 2008 and further, in case they obtain more raw marks+ interview marks than the candidates of the merit list of the RJS Examination, 2005 as per their raw marks + interview marks, then their cases may be considered for appointment against future vacancies and if found suitable, respondents may issue appropriate orders before finalising the selections and appointment pursuant to the RJS Examination, 2008.
(iv)The petitioners who have been interviewed but could not be selected on account of scaling down of their marks and scaling up the marks of the selected and appointed persons as referred in Relief No.(ii) and have further obtained more than 45 per cent raw marks + interview marks in the aggregate higher than persons already selected/appointed as per raw marks and interview marks of RJS Examination, 2005 be considered for appointment against future vacancies and in case they are found suitable, then, respondents may issue appropriate orders before finalising the selections and appointment of RJS Examination, 2008."
The matter of Sarita Noushad (supra) was travelled to the 5 Apex Court. The RPSC has filed the petitions before the Apex Court and these petitions were decided vide common order dated 5.5.2010. The Apex Court took note of the fact that the High Court has directed that the candidates who have already been appointed by the RPSC, shall not be disturbed and also observed that 8 candidates who had already undergone interview secured more marks than the candidates who were already appointed to the Judicial Service based on raw marks and six other candidates namely, Sarita Noushad, Ashutosh Kumawat, Rajant Khatri, Toshita Verma, Sarita Dhakad and Divya Singhwere not subjected to interview though they have got higher raw marks. They have to be interviewed by the Rajasthan Public Service Commission. If any one of them is found to be eligible, such candidates are also entitled to get appointment. Eight candidates who had already secured more marks than, the last candidate appointed, should be considered for appointment.
It was also ordered that RPSC is to conduct interview of the six candidates within a period of three weeks. The eight candidates, who had already undergone interview, need not be interviewed again. Final list of eligible candidates based on the marks secured by the candidates who were already interviewed and are to be interviewed, shall be prepared and from the said list, appointments on nine vacant posts shall be made in order of 6 merits. Following order has been passed by the Apex Court -
"Leave granted.
In 2005, Rajasthan Public Service Commission conducted test for the posts of Civil Judge (Junior Division) and 87 candidates were selected and they were appointed as Civil Judge (Junior Division) in 2007. The Rajashan Public Service Commission had adopted a method of scaling for the purpose of assessment of answer sheets. Because of this, some of the candidates who had obtained less raw marks which were sealed up were called for interview and subsequently selected and appointed. Therefore series of writ petitions were filed before the High Court challenging the scaling method adopted by the Public Service Commission. The High Court by the impugned judgment has given certain directions and held that the fresh interviews of the candidates to be taken based on their raw marks obtained by them. As regards the candidates who have been already appointed by Rajasthan Public Service Commission, the High Court held that their appointments shall not be disturbed.
Now, pursuant to the directions of the High Court, it appears that 8 candidates who had already undergone interview secured more marks than the candidates who were already appointed to the Judicial service based on raw marks and six other candidates namely, Sarita Noushad, Ashutosh Kumawat, Rajant Khatri, Toshita Verma, Sarita Dhakad and Divya Singh were not subjected to interview though they have got higher raw marks. They have to be interviewed by the Rajasthan Public Service Commission. If any one of them is found to be eligible, such candidates are also entitled to get appointment. Eight candidates who had already secured more marks than, the last candidate appointed, should be considered for appointment. The Rajasthan Public Service Commission is directed to conduct interview of above named six candidates within a period of three weeks. The eight candidates who had already undergone interview, need not be interviewed again. Final list of eligible candidates based on the marks secured by the candidates who were already interviewed and are to be interviewed, 7 shall be prepared and from the said list appointments on nine vacant posts shall be made in order of merits. We are told that the names of the candidates who were already selected in 2008 are sent for appointment to the Government. Naturally, the appointments pursuant to this order would take place after the appointments of the candidates selected in 2008 but they will be entitled to get seniority after their appointments.
The civil appeals are disposed of accordingly."
Mr. Hanuman Singh, learned counsel appearing for the petitioners submitted that petitioners' marks are more than the last candidate appointed by the RPSC, though they have secured lesser raw marks than the incumbents interviewed and appointed under the orders of the Apex Court and this Court in the case of Sarita Noushad. Since, this Court has directed in Sarita Noushad's case that the petitioners to be interviewed and to be adjusted against the future vacancies, the case of the present petitioners be also considered for future vacancies.
Mr. G.R. Punia, Mr. R.L. Jangid, Mr. Khet Singh, learned counsel appearing for the respondents have submitted that pursuant to the direction of the Apex Court, candidates have been interviewed and vacancies have already been filled. Thus, it is not open to appoint any more candidates in view of the clear order passed by the Hon'ble Apex Court.
Directions issued by this Court in Sarita Noushad's case stands superseded by the order passed of the Apex Court. The 8 appointments were subjected to the continuation of the posts of Fast Track Courts, thus there is no scope for directing now to appoint the candidates as against the future vacancies of 2011 or subsequent future vacancies which have to be worked out by the High Court on Administrative side before 15.1.2011.
This Court in Sarita Noushad (supra) has laid down that RPSC was not permitted to adopt the method of scaling in the RJS Examination because there were compulsory papers which were common to all the candidates. The decision of Sanjay Singh (supra) was followed in Sarita Noushad (supra) which lays down law to that effect.
This Court directed that appointments which were already made, were not to be disturbed and also directed to prepare a list of the candidates to be called for interview as per raw cut off marks for the purpose of ascertaining whether any of the petitioners was entitled to be called for interview in their respective categories. Order passed by this Court was confined to the petitioners in the case of Sarita Noushad. This Court further directed that all the petitioners who were entitled for interview as per Schedule-III in the ratio of 1:3 in their respective category as per their raw marks, considering the fact of cut off raw marks but have not been called for interview, be now called for interview along with the candidates to be interviewed for the examinations of RJS, 2008 and they may be 9 considered for appointment against future vacancies, if found suitable. The decision of this Court was subjected to challenge before the Apex Court in RPSC Vs. Balveer Singh Jat & Ors. which was decided vide common order dated 5.5.2010. The Apex Court has passed the order that final list of eligible candidates based on the marks secured by the candidates who were already interviewed and are to be interviewed, shall be prepared and from the said list, appointments on nine vacant posts shall be made in order of merits. That exercise has been completed and the nine vacant posts which were available have already been filled up by appointing incumbents.
This matter has been listed owing to the order passed by the Apex Court in Contempt Petition (c) Nos.283-284 of 2010 arising out of decision rendered in Civil Appeal Nos.4252 & 4251 of 2010 (Sarita Noushad & Anr. Vs. S.D. Tak & Anr.). The contempt petitions were decided by the Apex Court on 6.12.2010.
After hearing the parties, we are deciding these matters finally today.
It appears that petitioners may be right in submitting that they have obtained higher raw marks than the last candidate appointed pursuant to the advertisement. However, this fact is also not in dispute that they have obtained lesser raw marks than nine candidates who have been appointed pursuant to the 10 order passed by the Apex Court on 5.5.2010. It is apparent that this Court has not disturbed the appointments which were already made pursuant to the advertisement issued in the year 2005. It is also not in dispute that 58 posts were subject to continuation of Fact Track Judges who were promoted on ad hoc basis in continuation of scale. Though this Court while deciding the case of Sarita Noushad (supra), issued the direction with respect to the petitioners only, however the afore-quoted decision of Apex Court dated 5.5.2010 is clear that beside the eight persons who were interviewed, six more were to be interviewed and out of them, nine vacant posts have already been filled in by issuance of order of appointment by the State Government, as such it is not disputed that the posts which were advertised are not vacant.
The question arises for consideration whether the appointment can be given to the petitioners as against the future vacancies?
The counsel appearing on behalf of the petitioners have submitted that the appointments could have been ordered as against the vacancies of the year 2008 or the future vacancies which may arise. With respect to the appointments of Examination 2008, the Apex Court in the order dated 5.5.2010 had made it clear that appointments of the candidates selected in 2008 have to be made but the incumbents will be entitled to 11 get seniority after their appointments. However, the fact remains that the incumbents who were ordered to be appointed, have been appointed and the appointments regarding batch of 2008 are in process with the State Government. The appointments are made after police verification, etc. and it is also submitted by the counsel appearing for the State that process is almost over and with respect to one or two incumbents, the verification remains to be made.
Whatever that may be, in view of the decision of the Apex Court, we cannot order for appointment of these petitioners on the basis of their obtaining raw marks more than the last selected candidate pursuant to advertisement, as the Apex Court has confined the order in the case of Sarita Noushad as against nine vacancies. Thus, we find that no exercise of further appointment can be undertaken by this Court in view of the clear and categorical order passed by this Court that appointments have to be made as against nine vacancies which were available and the direction issued by this Court in Sarita Noushad (supra) that appointment of the petitioners be made against future vacancies. There are various other reasons for which we cannot now order for appointment of these candidates as against the future vacancies which will arise in 2011 or the vacancies to be advertised in 2011.
Firstly, it is not disputed that posts which were advertised 12 stands filled before the decision rendered in Sarita Noushad's case by this Court. The decision of Sarita Noushad's case (supra) was confined to the petitioners and thereafter before the the Apex Court, therefore were 18 posts. The Apex Court has limited the direction to fill up the nine posts only, which have been filled. Once the posts which were advertised in the year 2005, the incumbents cannot be appointed as against the future vacancies. It was mentioned that these were subject to continuation of the scheme of Fast Track Courts. If any further appointments are made in absence of vacancies which were advertised in the year 2005, it would be making the position worst as it is not at all known today, what is going to happen to the Fast Track Courts' Judges. Apart from that, law is well settled that it is not open to fill the more vacancies than advertised. Considering the nature of vacancies which were advertised also, we find that there is absolutely no right after the vacancies have been filled under the orders of the Apex Court or this Court or any authority. To venture into filling of the more vacancies of the similar nature, we have to abide by the conclusive order passed by the Apex Court in the matter of Sanjay Singh (Supra).
In the Contempt Petition also, the Apex Court has observed as to the imposition of conditions. Condition No.2 thus- 13
"So far as condition No.2 is concerned, it is mentioned therein that the appointment of the nine candidates would be subject to the final decision of the Division Bench in S.B. Civil Writ Petition No.3310 of 2007 which is pending in the Rajasthan High Court as per order dated 6.8.2010. The order dated 6.8.2010 passed by the Division Bench in S.B. Civil Writ Petition No.3310 of 2007 is produced at Annexure R1/10 along with affidavit filed by the respondent No.1. In the concluding paragraph of the said order it is observed as under -
"In view of directions of the Hon'ble Supreme Court as contained in the order dated 5.5.2010 and the facts as stated by RPSC, though at present we are not inclined to issue interim mandamus to the effect that the petitioner be called out for interview at this stage but then having regard to the over all circumstances we are of the opinion that interest of justice shall be served if it is observed that the fresh appointments pertaining to the selections for the year 2005 shall remain subject to the final decision of this writ petition and it is enjoined upon respondents to put a statement to this effect in the select list published or to be published and in the consequential appointments. Ordered accordingly."
Mr. Soli J. Sorabjee, the learned senior counsel for the respondent No.1 had, after reading the above quoted order and on instructions of the respondents, mentioned that in view of the order dated 6.8.2010 passed by the learned Judges constituting the Division Bench, there was no option for the respondents but to incorporate condition No.2 in the appointment letters. Thereupon, this Court pointed out that the order dated May 5, 2010 passed by three Judge Bench of this Court was very much before the learned Judges of the Rajasthan High Court who had passed the order dated 6.8.2010 and it would not be fair to suggest to them that though they had read the order dated May 5, 2010 passed by this Court they had made the order of the Supreme Court subject to the order to be passed by them in a writ petition pending before them. The meaningful reading of the order dated 6.8.2010 makes it evident that what is observed by the Division Bench is that fresh appointments which may be made subsequently after 14 the passing of the order dated 5.5.2010 would be subject to the result of the writ petition pending before the Division Bench. This position being pointed out, Shri Soli J. Sorabjee, the learned senior counsel for the respondent No.1 had immediately reacted and stated that the order of the Supreme Court can never be made subject to the order to be passed by the High Court and after taking instructions from the respondents, Shri Sorabjee had stated at the Bar that condition No.1, mentioned in the appointment order dated 29.11.2010 shall also be deleted while issuing joining orders to the nine candidates. Shri Soli J. Sorabjee, the learned counsel for the respondent No.1 had stated at the Bar that joining orders, without mentioning/incorporating the two conditions stated in appointment order dated 29.11.2010, shall be issued to the nine candidates within two weeks from today and prayed to adjourned the matter to 11.1.2011.
In view of the statements made at the Bar, by the learned senior counsel for the respondent No.1, the respondents are hereby directed to issue joining orders to the nine candidates whose names are mentioned in the appointment order dated 29.11.2010, without mentioning the two conditions, incorporated in the appointment order dated 29.11.2010 within two weeks from today."
Learned counsel appearing on behalf of the petitioners submitted that review petitions which were filed before the Apex Court were allowed and the reliefs have been granted accordingly. We are at that as the reliefs have been granted to those nine candidates, the fact remains that no post is available as on today for being filled by the incumbents. The Apex Court has laid down that once the posts have been advertised and stands filled, it is not open to fill the more posts that would be 15 violative of Article 14 and 16 of the Constitution of India. The counsel appearing for the petitioners has relied upon the decision of the Apex Court in Sanjay Singh (supra) in which direction was given to make appointments of the incumbents as against the future vacancies. That direction was issued by the Apex Court under Article 142 of the Constitution of India. Thus, the similar direction cannot be issued by this Court particularly in view of the order passed by the Apex Court on 5.5.2010.
The Apex Court in Surinder Singh Vs. State of Punjab & another (1997) 8 SCC 488, has laid down that candidates in the waiting list have no right to be appointed except to the limited extent. In Jitendra Kumar & ors. Vs. State of Haryana & another (2008) 2 SCC 161, the Apex Court laid down that the excess appointments against advertised posts cannot be made. In Mukul Saikia and others Vs. State of Assam and others (2009) 1 SCC 386, the Apex Court has laid down that excess candidates cannot be appointed when all advertised posts were filled up. In Rakhi Ray and others Vs. High Court of Delhi and others (2010) 2 SCC 637, the Apex Court has laid down that selection list comes to an end filling up notified vacancies.
In view of the direction issued by the Apex Court, we find that no relief can be granted to the petitioners. Though, the petitioners' counsel may be right in submitting that petitioners are having more raw marks on the basis of their performance 16 than the last selected candidate Jaipal Jani, we do not find any force in the submission that higher meritorious candidates have been left out and lower meritorious candidates have been appointed as the candidates who have been appointed pursuant to the order passed by the Apex Court were higher in merit as compared to the petitioners. In this case, on the basis of raw marks though it may be true that last selected candidates who were appointed, may be in lower in merit as the posts stand filled, our hands are tied.
Counsel for the petitioners has further submitted that in fact the posts which were advertised stood filled up and nine posts were not those posts which were advertised, thus counsel has submitted that we can give direction for appointment to be made against the future vacancies. We are afraid that we cannot do so firstly in view of the decision of the Apex Court, it would not be appropriate to fill more posts as the vacancies which were advertised stood exhausted.
Counsel has also submitted that the Apex Court has issued direction for calling the candidates on the basis they have obtained higher marks, similarly the petitioners should also be called for interview. We are afraid that we cannot do so as the posts are not available now and vacancies which were advertised admittedly stands exhausted. Thus, we find no merit in the submission.
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Prayer made by the counsel regarding appointment as against the vacancies to be advertised in the year 2001 is also misconceived.
In Writ Petition No.3567/2007, additional ground has been raised by the counsel for the petitioner that answer-sheet of English paper be called. It is not in dispute that there is no provision for re-evaluation in the examination to be held by RPSC, therefore we cannot direct for re-evaluation.
In view of the aforesaid discussion, the writ petitions stand dismissed.
[PRAKASH TATIA],J. [ARUN MISHRA], CJ. Praveen