Rajasthan High Court - Jaipur
Rachana Arya And Ors vs State Of Raj And Anr on 6 February, 2019
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
1. (S.B. Civil Writ Petition No.4389/2018)
1. Rachana Arya D/o Ramprasad Arya, Aged About 24 Years Resident Of VPO
Bidsar, Tehsil Laxmangarh, District Sikar (Rajasthan)
2. Lalita S/o Shri Sohan Lal, Aged About 27 Years, Resident Of Ayurvedic Hospital
Ghamandia, Tehsil Suratgarh, District Sriganganagar (Rajasthan)
3. Kovid Goyal S/o Shri Jaiprakash Goyal, Aged About 24 Years, Resident of
Shyam Colony, Ganesh Ji Road, Virat Nagar, Jaipur (Rajasthan)
4. Sunil Tiwari S/o Shri Babulal Tiwari, Aged About 25 Years, Resident of village
Jasrasar, Tehsil Nokha, District Bikaner (Rajasthan)
5. Vikram Singh S/o Shri Dharm Singh, Aged About 25 Years, Resident Of Village
Penchala, Post Lapuwali, Tehsil Todabhim, District Karaul (Rajasthan)
6. Ravindra Kumar Yadav s/o Shri Indermal Yadav, Aged About 25 Years,
Resídent Of Village Bandhara, Tehsil Tijara, District Alwar (Rajasthan)
7. Kishan Kumar Nirvan S/o Shri Nawal Kishore Nirvan, Aged About 28 Years,
Resident Of 2143, New Abudi Near Bus Stand, Shahpur, District Bhilwara
(Rajasthan)
8. Rati Khandelwal D/o Shri Balkishan Khandelwal, Aged About 27 Years, R/o 41,
Panchavati Colony Gayatri Nagar, Ajmer Road, Beawar (Rajasthan).
9. Monika Shekhar D/o Shri Prabhu Lal Bairawa, Aged About 27 Years, Resident
of 562, Vivekanand Nagar Kota (Rajasthan).
10. Priyanka Sharma D/o Shri Subhash Chand Sharma, Aged About 26 Years,
Resident Of C-52, Shakti Nagar, Sahab Johra Vijay Mandir Road, Alwar
(Rajasthan).
11. Richa Singhal D/o Shri Kaluram Singhal, Aged About 25 Years, Resident Of
Bagwano Ka Mohalla, Old Ginnani Bikaner (Rajasthan).
12. Sudha Meena D/o Shri Dhanpal Meena, Aged About 27 Years, Resident Of
B-39, Captain Chuttan Lal meena Colony, Alwar Rajasthan.
13. Sunil Bhatt S/o Shri Rajendra Kumar Bhatt aged About 33 Years, Resident of
44, Behind The Hr. Sec. School Mavli, Distt. Udaipur (Rajasthan)
14. Vikash Kumar Sharma S/o Shri Satyendra Kumar Sharma, Aged About 26
Years, Resident of Mamta Misthan Bhandar, Palsana, Sikar (Rajasthan)
15. Kishan Dave S/o Shri Bhanwar Lal Dave, Aged about 29 Years, Resident Of
Brahmpuri, Near Water Tank, Bhinmal, Distt. Jalore (Rajasthan)
16. Ramvilash Singh S/o Shri Harikesh Singh Kushwah, Aged About 25 Years,
Resident of 8C3, Patel Nagar Extension, Bhilwara (Rajasthan)
17. Navkar, Jain S/o Shri Mahendra Kumar Jain, Aged About 25 years, Resident
2
Of 61/47, Rajat Path, Mansarovar Jaipur (Rajasthan)
18. Gaurav Purohit S/o Shri Pradeep Purohit, Aged About 28 Years, Resident of
C-162, Joia Market, Kanta Khaturia Colony, Bikaner (Rajasthan)
19. Prateek Khandelwal S/o Shri Dinesh Khandelwal, Aged About 25 Years,
Resident of lovely Readymade Centre, Naya Katla, Dausa (Rajasthan)
20. Neeraj Kumar S/o Shri Satish Chand Agarwal, Aged About 25 Years, Resident
Of Pyarelal Mukesh Chand General Store, Infront Of Cray Vicray Katra, Nadbai,
Bharatpur (Rajasthan).
21. Rakesh Meena S/o Shri Lakhan Singh Meena, Aged About 25 Years, Resident
of village & Post Barauli, Teh. Baseri Dholpur (Raj.)
22. Deepika Kumari D/o Shri Dharmendra Kumar, Aged About 25 Years,
Resident Of H.no. 258, Pharasar Tech. Rajgarh, District Churu (Rajasthan)
23. Prateek Kansara S/o Shri Sohan Lal Kansara, Aged About 28 Years, Resident
Of Near 5 Star Garage, Vadiya Colony, Banswara (Rajasthan)
24. Atul Pachar S/o Shri Rajendra Singh, Aged About 25 Years, Resident Of Ward
No. 13, Teh. Chirawa, Distt. Jhunjhunu (Rajasthan)
25. Himanshu Sinsinwar S/o Shri Ajeet Kumar Sinsinwar Aged About 26 Years,
Resident of Plot No. 21, Ayodhya Nagari, Dhola Bhata, Ajmer (Rajasthan)
26. Mahendra Singh S/o Shri Madan Lal, Aged About 26 years R/o Surya Nagar,
Piprali Road, Sikar (Rajasthan)
27. Hanuman Prasad S/o Prithvi Raj, Aged About 26 Years, R/o Village Shyopura
(4 Ksr), P.O. Ramsra Jakhran, Tehsil Suratgarh, Distt. Sriganganagar (Rajasthan)
---Petitioners
Versus
1 State Of Rajasthan Through Its Secretary Technical Education Department,
Government Of Rajasthan, Secretariate, Jaipur.
2. Rajasthan Public Service Commission Through Its Secretary, Ajmer
---Respondents
2. (S.B. Civil Writ Petition No. 4383/2018)
1. Priyanka Gupta D/o Shri Ram Avatar, Aged About 25 Years, Resident Of G-1,
A-81 Gomati Colony, Jagatpura, Jaipur.
2. Himanshu Chauhan S/o Shri Bhagwan Singh Chauhan, Aged About 24 Years,
Resident Of 4-E 16, Jawahar Nagar Housing Board, Bundi (Rajasthan)
---Petitioners
Versus
1 State Of Rajasthan Through Its Secretary Technical Education Department,
Government Of Rajasthan, Secretariate, Jaipur.
2. Rajasthan Public Service Commission Through Its Secretary, Ajmer
---Respondents
3
Date of Order: February 6th, 2019.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Sunil Tiwari, petitioner in person.
Mr. Sandeep Saxena ] for the petitioners.
Mr. R.S. Sinsinwar on behalf of]
Mr. Kapil Gupta ]
Mr. M.S. Singhvi, Advocate General with
Mr. Raunak Singhvi, for the State.
Mr. M.F. Baig, for the RPSC.
BY THE COURT:
The petitioners having found place in the select list dated 16- 5-2017 issued by the Rajasthan Public Service Commission (RPSC) for appointment to the post of Lecturer Technical Education (Mechanical Engineering) (hereafter `Lecturer ME) in the Government Colleges of State of Rajasthan, but not yet appointed, seek a direction that they be appointed in terms thereof.
The facts relevant for the adjudication of these petitions are that vide advertisement dated 22-7-2014 RPSC invited applications for 58 posts of Lecturer Technical Education in various subjects including in Mechanical Engineering (hereafter `Lecturer ME'). The petitioners applied for appointment as Lecturer ME. Vide corrigendum dated 16-12-2014 to the advertisement dated 22-7- 2014 RPSC bifurcated categorywise the vacancies advertised for 4 various engineering disciplines and subjects as also for the Lecturer ME. In terms of the said bifurcation one post was reserved in the category of Special Backward Class (SBC). The number of applicants for the post of Lecturer ME being 8915, RPSC not being in a position to conveniently interview them all, in terms of its discretion under Rule 23 of the Rajasthan Technical Education (Engineering) Service Rules, 2010 (hereafter `the Rules of 2010') it conducted a screening test on 16-1-2016, result of which was declared on 12-7-2016. Three times the number of candidates with respect to vacancies advertised in the respective categories were to be called for the interviews preceding appointments to the posts in issue. The petitioners qualified the screening test in their respective categories and were called for documents verification as a proof of their eligibility. Interviews for the post of Lecturer ME were then held between 23-1-2017 and 10-2-2017. The result of the interview was declared on 16-5-2017, wherein besides the petitioners in these petitions others were selected. Simultaneously a reserve list of 25 candidates was also declared on 16-5-2017. The names of those in the select list including that of the petitioners were to be recommended to the State Government for appointment to the post of Lecturer ME.
It appears that at the time the interviews for appointment to the post of Lecturer ME were held, a petition i.e. Gurvinder Singh Vs. 5 State of Rajasthan, DBCWP No.1645/2016, was pending before this court with regard to the legality and constitutionality of 5% reservation for SBCs which took reservation beyond 50%. For this reason one post of Lecturer ME as per categorization on 16-12- 2014 was kept vacant. The reservation for SBC category was thereafter found unconstitutional by this High Court in the case of Gurvinder Singh Vs. State of Rajasthan decided on 9-12-2016. Resultantly following the Department of Personnel's letter dated 22- 5-2017, RPSC vide corrigendum 24-7-2017, bifurcated afresh the 58 posts of Lecturer ME categorywise, and the one post earlier in the quota of SBC as per corrigendum 16-12-2014 to the advertisement dated 22-7-2014 was now allocated to the General Female category on 24-7-2017.
That in this duration while the issue of validity of special reservation of 5% to SBC in addition the 49% reservation obtaining in services of the State played out, despite their selection in terms of the select list dated 16-5-2017, the petitioners were not appointed. Their representations to the competent authority ventilating their grievances were of no avail. Contrarily vide its, now also impugned, notice dated 17-2-2018, RPSC in the context of the reallocation of one seat earlier in the quota of SBC now reallocated to General Female category, with reference to the result of the screening test declared on 12-7-2016 required 49 additional candidates to appear 6 for interview for the post of Lecturer ME.
The petitioners are aggrieved of notice dated 17-2-2018 to the extent of RPSC calling 45 OBC Male and Female candidates for interview, when only 3 general category candidates could be so called for the one general female category seat in issue following the reallocation dated 24-7-2017. The petitioners are also aggrieved of the inaction of RPSC in not forwarding their names for appointment to the post of Lecturer ME despite their inclusion in the select list 16- 5-2017. It has been submitted that the changed allocation of one post, earlier in the quota of SBC to that of General Female, can not, as is sought to be done, entail the negation of RPSC's own select list dated 16-5-2017, by which the petitioners were selected for appointment to the post of Lecturer ME. It has been submitted that under the advertisement dated 22-7-2014 appointments of those selected as Lecturers in other subjects such as Chemical Engineering, Civil Engineering, Electrical Engineering, Electronics Engineering, Computer Engineering, as also Physics, Chemistry, Mathematics, English, Textile Designing, Costume Design and Dress Making have already been made. Quashing of RPSC's notice dated 17-2-2018 calling of 45 OBC candidates in breach of its prescribed criterion, at the relevant time, of calling 3 candidates for one post in different categories while making appointments based solely on interviews, has been sought. And a direction for the petitioners' appointment as 7 Lecturer ME in terms of the final select list dated 16-5-2017 has also been sought.
Reply to petition has been filed both by the State and the RPSC. The State's defence is that 5% SBC reservation beyond 49% for appointment in Services of the State having been invalidated, appointments pending have to be made by RPSC as per its prescribed criterion thereafter obtaining on the date of the interviews for appointment. The appointments to the post of Lecturer ME not yet having been made despite the select list dated 16-5-2017 the processes will now be completed by the RPSC, as is sought to be done, under the impugned notice dated 17-2-2018.
RPSC's defence is that following the setting aside of SBC reservation in government services in the case of Gurvinder Singh Vs. State of Rajsthan (supra), the bifurcation of 58 posts of Lecturer ME earlier made, pursuant to the advertisement dated 22-7-2014 and corrigendum dated 16-12-2014, was revisited and the one post in the quota of SBC reallocated vide corrigendum 24-7-2017 to the General Female category. It has been submitted that as against the aforesaid one post in the General Female category now available, three General Female candidates were to be called for interview, but as the 3rd and 4th candidates in the relevant list had identical marks the four most meritorious General Female Category candidates was 8 also per force called for the interview. It has been submitted that aside of the aforesaid, the Full Commission of the RPSC on 15-2- 2018 had decided that those reserved category candidates who obtained higher marks than the cut off marks of the General category candidates, called for interview following the screening test, would also to be called for the interview in their respective categories no matter that for that reason the 1:3 ratio against the reserved category vacancies would be breached. It has been submitted that on the newly prescribed criteria, effective 15-2- 2018, 25 OBC Female category candidates having obtained higher marks than the cut off marks of the General Female category candidates were called for the interview. Similarly 20 OBC male candidates having higher marks than the cut off of the General Male category earlier interviewed prior to the select list 16-5-2017 were also called. Thus an aggregate of 49 candidates were called for interview by the RPSC vide its notice dated 17-2-2018. The merit of reserved category candidates has been given due regard in the process adopted. It has been further submitted that even otherwise though included in the select list dated 16-5-2017, the petitioners have no right to be appointed until completion of the interviews for all the advertised posts of Lecturer ME.
Heard. Considered.
Admittedly 58 vacancies on the post of Lecturer ME were 9 advertised by RPSC on 22-7-2014. Vide corrigendum 16-12-2014, the said vacancies were bifurcated amongst General, male/ female, SC/ ST OBC (Male/ Female), SBC and Physically handicapped. 8915 applicants in the various categories being in the fray, for the vacancies in issue, all of whom could not be conveniently interviewed by the RPSC, it exercised its power under Rule 23 of the Rules of 2010 and conducted a screening test on 16-1-2016 for shortlisting the applicants in various categories. Result of the screening test was declared on 12-7-2016. Prior thereto effective 14-6-2016, the Full Commission of RPSC had taken a decision, relying on the judgments of this court inter alia in the case of Naresh Kumar Vs. RPSC [2005(4) WLC (Raj.) 612] that where appointments under the concerned service rules to a post were to be made on the basis of interviews alone, eligible candidates were to be called for the interview categorywise, in the ratio of 1:3--with extension of the zone consideration in each category only in the happenstance of the last of the spots in the shortlist/s for the interview having more than one candidate with identical marks. In that eventuality all candidates joint on the last spot in the screening test for the interview as per RPSC's prescribed criterion were to be called for interview. In terms of the then extant prescribed criterion for shortlisting of candidates for interview, when the result of the screening test was declared RPSC required 188 candidates to appear for the interview for appointment to the posts of Lecturer ME as advertised on 22-7- 10 2014. Interviews were held between 23-1-2017 and 10-2-2017 and candidates in various categories (except in the quota of SBC) were declared selected. This as the issue of constitutionality of 5% SBC reservation in excess of 49% reservation already provided for was pending before the High court.
The petitioners, having been included in the select list dated 16-5-2017 for appointment to the post of Lecturer ME had the legitimate expectation of being recommended by RPSC and being appointed by the State, unless a legal prohibition or just cause for their non appointment obtained. None such cause existed. No relevant prohibition has been brought to my notice. Yet the petitioners were not appointed and their representations in regard to their grievance with the inaction overlooked.
I am of the considered view that the select list dated 16-5- 2017 for appointment to the post of Lecturer ME having been prepared by the RPSC following its own extant prescribed criterion determined at the Full Commission meeting of 16-4-2016 (whereunder only three candidates against one vacancy in each category for the interview were to be called) those finding place in the select list were entitled to be recommended after verification of their documents to the State Government for appointments which in turn were to be made by the State within reasonable time. 11
The mere fact that following the judgment in the case of Gurvinder Singh Vs. State of Rajasthan, DBCWP No.1645/2016 decided on 9-12-2016 the 5% SBC reservation was declared ultravires the Constitution, and the one post earlier kept in the SBC quota reallocated to the General Female category, had no adverse bearing on the final select list dated 16-5-2017. In respect of the one vacancy reallocated to the General Female category vide RPSC corrigendum dated 24-7-2017, all that entailed was three General Female category candidate or more with marks identical with the last were to be interviewed. RPSC however appears to have at this stage misdirected itself in adopting its subsequently prescribed criterion at its full Commission meeting of 15-2-2018, which required all reserved category candidates at the screening test, with higher marks than the last of the General Category candidates called for interview in the ratio of 1:3, to be also called for interview. RPSC quite clearly failed to appreciate and overlooked that interviews for appointment to the post of Lecturer ME had earlier been commenced and held between 23-1-2017 and 10-2-2017 when its Full Commission decision of 14-6-2016 was operative. And thereunder the interviewers, where appointments were based on interviews alone, only to an extent of 3 times the number of vacancies in each category were permitted.
12
It cannot be doubted that in the exercise of its powers/ functions under Article 320 of the Constitution of India, a Public Service Commission within its limit is free to determine prescribed criterion for selections to public posts. In the judgment in the case of Inder Prakash Gupta Vs. State of J&K [(2004)6 SCC 786] it was held that while going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field, it may be that for certain purposes, for example, for the purpose of shortlisting, it can lay down its own procedure. (underlining mine) The powers of the Public Service Commission to declare a prescribed criterion for selection is plainly an administrative act, and hence the criterion prescribed necessarily prospective in nature. RPSC's prescribed criterion for selection is operative for all selections commenced by it during its currency. It cannot be applied retrospectively to selections underway. In the instant case, admittedly the candidates seeking appointment as Lecturer ME were shortlisted on 12-7-2016. They were then, as per obtaining prescribed criterion declared by RPSC on 16-4-2016, interviewed between 23-1-2017 and 10-2-2017. Even the select list following the interviews was declared on 16-5-2017. However for reason of the imbroglio qua SBC reservation, the sole seat in the quota of SBC was kept vacant and subsequently following the decision in the case of Gurvinder 13 Singh Vs. State of Rajasthan (supra) reallocated to General Female category on 24-7-2017. At that time too RPSC's Full Commission decision on 16-4-2016 was operative providing that the interviews for selection to posts, filled only on basis of interview, would be confined to three candidates in the category against one seat in the category. Only subsequently the Full Commission took a decision dated 15-2-2018 that all reserved category candidates with a higher cut off than General Category candidates called for interview, be called for interview, irrespective of the ratio of 1:3 category, otherwise provided for, being breached. But that decision could not attract to the petitioners' case for multiple reasons. One, RPSC's Full Commission decision of 15-2-2018 would operative only prospectively and not retrospectively on interviews which commenced prior to 15-2-2018. Further it is well settled on authority of the Apex Court that the rules of the game cannot be changed mid course. See [(2011)3 SCC 436] State of Orissa Vs. Mamta Mohanty, where it was held that the selection criterion cannot be changed after initiation of the selection process. Also see Manjushree Vs. State of AP [(2008)3 SCC 512] for the same proposition. The situation is better in the instant case inasmuch as here even the select list dated 16-5-2017 was declared after interviews were held as per the extant prescribed criterion under RPSC's Full Commission decision dated 16-4-2016. 14
In view of the discussion above, I am of the considered view that the notice dated 17-2-2018, except to the extent that it relates to the four general female candidates called for interview against the one vacancy in that category on the post of Lecturer ME available as per RPSC's corrigendum dated 24-7-2017, in so far as it provides for calling 25 OBC women and 20 OBC male--in excess of 3 times the number of vacancies for the said category on the post of Lecturer ME
--for interview is wholly illegal and contrary to the prescribed criterion of the RPSC as was operative at the time of interviews between 23-1-2017 and 10-2-2017. The said notice based on RPSC's Full Commission's decision dated 15-2-2018 is vitiated and therefore liable to be quashed and set aside. It is so. And the petitioners are entitled to be recommended for appointment on the post of Lecturer ME as per the select list dated 16-5-2017.
On the view taken above, it is wholly unnecessary to address the question as to whether where the prescribed criterion provides for categorywise shortlisting, the purportedly more meritorious reserved category candidates (in a screening test not a test of merit) vis-à-vis the general category candidates called for interview, are also entitled to be called for interview beyond 3 times the number of vacancies notified/ allocated for their respective reserved categories. Yet while on the point, it would be appropriate to refer to the judgment of the Apex Court in the case of Chattar Singh Vs. State of 15 Rajasthan [(1996)11 SCC 742] wherein it was held that "if the minimum of 15 times of the candidates are identified and results declared, it would not be necessary to pick up more General/ Reserved candidates. It would not be necessary to declare the result of more than 15 times the total notified vacancies/ posts so as to enable them to compete in the Main Examination. The object of screening test is to eliminate unduly long number of persons to appear for Main Examination. If more candidates are called by declaring their result in Preliminary Examination, the object of Rule 13 would be frustrated." (underlining mine) In the judgment of this court in the case of Dharamveer Tholia Vs. State of Rajasthan [2000(3) WLC (Raj.) 399] it was held that reservation policy is meant for recruitment only and there is no other reservation policy for short listing in examination. (underlining mine) There is however a different line of argument, albeit based on a consent order at the interim stage in the case of Hanuman Jat Vs. State of Rajasthan, Civil Appeal No.6084-6093/2016 passed on 28- 11-2016, wherein the Apex Court ordered as under:-
"In view of the fact that huge number of applicants (approximately eight lakhs) are seeking to appear in the selection process, the respondents devised a preliminary examination. It appears that successful 16 candidates at the preliminary examination only would be permitted to take the final examination. However, under the relevant rules candidates 15 times more in number than the number of posts to be filled against each category are required to be identified for the purpose of permitting them to the final examination. While working on such a process the respondents arrived at cut-off marks with respect to each of the various categories. It so happened that the cut-off with respect to the General Category candidates are much less than the cut-off marks with respect to various other reserved categories of candidates. It is this factual background which led to the litigation in the present appeals.
It is submitted that in view of the fact that by the interim orders, recruitment for the purpose of filling up the posts of Patwaris is held up, the State is greatly handicapped in its administration.
For the interim measure, the State as well as the appellants agree that the ends of justice would be met for the time being by permitting all the candidates who secure equal to or more than 104.51 marks in the preliminary examination (irrespective of the category to which candidates belong) be permitted to appear in the final examination without prejudice to the rights of the parties and the various question of law arising in the appeals. The respondents are permitted to complete the process of selection of Patwaris in accordance with law. "
But as earlier stated the competing contentions on this issue will be superfluous to the decision of the instant case, conclusion 17 wherein is being founded on the view that RPSC's Full Commission decision dated 16-4-2016 which was operative when the interviews for selection to the post of Lecturer ME commenced on 23-1-2017 (and continued till 10-2-2017) would be determinative and not its subsequent prescribed criterion reflected in the Full Commission decision on 15-2-2018.
The upshot of the aforesaid discussion is that the petitioners selected on the post of Lecturer ME in terms of their merit in the select list dated 16-5-2017 are entitled to be appointed on the post of Lecturer ME. For that RPSC is under a duty to make requisite recommendations to the State Government. The required recommendations be made within two weeks from today. The Government to act on the recommendations within two weeks thereafter. Further RPSC's notice dated 17-2-2018 to the extent of calling 45 reserved category candidates i.e. 25 OBC female and 20 OBC male contrary to its Full Commission decision dated 16-4- 2016, which alone attracts to the interview held for the post of Lecturer ME between 23-1-2017 and 10-2-2017, is liable to be set aside to that extent. It is ordered so.
The petitions stand accordingly allowed.
A copy of the order be placed in each connected file.
(Alok Sharma), J.
arn/ Powered by TCPDF (www.tcpdf.org)