Rajasthan High Court - Jodhpur
Kundan Singh Charan vs State Of Rajasthan on 11 August, 2020
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 7428/2019 Kundan Singh Charan S/o Shri Shiv Dutt Charan, Aged About 36 Years, R/o 186, Laxmi Nagar, Paota C Road, Jodhpur (Raj.).
----Petitioner Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Of Home, Govt. Of Rajasthan, Secretariat, Jaipur.
2. Rajasthan Public Service Commission, Through Its Secretary, Ajmer.
3. The Director General Of Prisons, Rajasthan Prisons Department, Govt. Of Rajasthan, Jaipur.
----Respondents Connected With (2) S.B. Civil Writ Petition No. 17817/2018 Mahesh Kumar S/o Shri Hari Ram, Aged About 35 Years, Village Post Datav, Tehsil Sanchore, District Jalore, Rajasthan
----Petitioner Versus
1. State Of Rajasthan, Through The Home Secretary, Department Of Home, Government Of Rajasthan, Jaipur
2. Rajasthan Public Service Commission, Through Its Chairman, Ajmer
3. The Director General Of Prisons, Rajasthan Prisons Department, Government Of Rajasthan, Jaipur
----Respondents For Petitioner(s) : Ms. Varsha Bissa Mr. Rajvendra Sarswat For Respondent(s) : Mr. Kailash Choudhary Mr. Khet Singh JUSTICE DINESH MEHTA Judgment 11/08/2020 (Downloaded on 13/08/2020 at 08:38:28 PM) (2 of 12) [CW-7428/2019]
1. By way of these writ petitions the petitioners have challenged the action of the respondents, particularly the corrigendum notification dated 8.7.2014, whereby the age relaxation of 3 years given in the advertisement No.1/2013-14 dated 2.5.2013 has been revoked.
2. Both the petitions involve almost identical facts, however, for the purpose of deciding the controversy, the facts of SBCWP No.7428/2019 (Kundan Singh Charan Vs. State of Rajasthan & Ors.) are being taken into account.
3. The respondent-commission issued an advertisement dated 2.5.2013 for filling up 42 posts of Assistant Jailor. Clause no.12 thereof stipulated that a relaxation of 3 years in upper age limit, would be granted. For the sake of convenience clause no.12 is reproduced hereunder:
"12- vk;q%& vkosnd fnukad 1 tuojh] 2014 dks 18 o"kZ dh vk;q izkIr dj pqdk gks vkSj 26 o"kZ dk ugha gqvk gks]ijUrq ;g fd %& ¼1½ ^;fn dksbZ vH;FkhZ fdlh o"kZ esa ftlesa ,slh dksbZ ijh{kk ugha gqbZ Fkh] viuh vk;q dh n`f"V ls ijh{kk esa lfEefyr gksus dk gdnkj jgk gksrk@gksrh] rks og viuh vk;q dh n`f"V ls Bhd ckn okyh ijh{kk esa lfEefyr gksus dk gdnkj le>k tk,xk@tk,xhA* Li"Vhdj.k%& vk;ksx }kjk o"kZ 2008 dh ijh{kk gsrq vk;q dh x.kuk fnukad 01- 01-2009 dks dh xbZ Fkh rRi'pkr~ bu inksa dh ijh{kk vk;ksftr ugha gksus ds dkj.k bl ijh{kk esa tks vH;FkhZ fnukad 01-01-2010 dks vk;q lhek esa Fks mUgsa vk;q lhek esa gh le>k tk,xkA ,sls vH;fFkZ;ksa dks vf/kdre vk;q lhek esa 03 o"kZ dh NwV ns; gksxhA"
4. The petitioner whose date of birth is 25.5.1982, was eligible by dint of age relaxation provided in the advertisement and thus, he submitted an application form. (Downloaded on 13/08/2020 at 08:38:28 PM)
(3 of 12) [CW-7428/2019]
5. On 8.7.2014, a corrigendum came to be issued, as a consequence whereof, the provision governing age relaxation given in Clause no.12 of the advertisement in question stood omitted.
6. It is not in dispute that written examinations pursuant to the advertisement in question were held on 15.3.2016, obviously after the corrigendum dated 8.7.2014 was issued.
7. Notwithstanding the corrigendum aforesaid (due to which petitioner became ineligible), petitioner appeared in the written examination and participated in subsequent process of selection.
8. Petitioner having succeeded in the physical efficiency test, qualified for the interview, but his candidature came to be rejected, considering him to be over age.
9. The petitioner preferred a writ petition being SBCWP No.3985/2017 before this Court in which, though an interim order was granted and petitioner was allowed to take part in the interview, however, since the marks secured by him (277.01) were below the cut-off declared for the category (282.43), his writ petition was not examined on merit and was disposed of as such on 22.1.2018.
10. The result was however reshuffled and the cut-off was reduced and persons having secured 275.50 marks or above were shown in waiting list. The petitioner, having secured 277 marks, felt that his cause has revived, for which he has approached the Court by way of instant petition.
11. Ms. Varsha Bissa, learned counsel for the petitioner argued that the respondents were not justified in taking away the benefit of age relaxation, which was granted in the advertisement (Downloaded on 13/08/2020 at 08:38:28 PM) (4 of 12) [CW-7428/2019] dated 2.5.2013. According to her the corrigendum dated 8.7.2014 being arbitrary deserves to be quashed and set aside, as a right accrued and vested in petitioner's favour, cannot be taken away by the respondent-commission, that too, with retrospective effect.
12. It was also argued that withdrawal of age relaxation amounts to changing the rules of the game after the game has begun.
13. Learned counsel invited Court's attention towards Division Bench judgment dated 14.12.2017 rendered by Jaipur Bench in the case of Shahjad Khan Vs. State of Rajasthan & Ors. (DBCWP No.15619/2016) and submitted that in the case of recruitment of Sub-Inspector/Platoon Commander, the State Government has decided to grant age relaxation of 3 years vide Government order dated 22.6.2017, duly noticed by the Division Bench in its judgment.
14. Learned counsel argued that the Home Department of the State has granted age relaxation in case of Sub Inspector/Platoon Commander, then, there cannot be any justification in not giving such age relaxation in case of present recruitment for the post of Assistant Jailor, which post too falls under the aegis of Home Department.
15. Mr. Sarswat, learned counsel appearing for the petitioner in SBCWP No.17817/2018 while adopting the arguments advanced by Ms. Bissa, additionally submitted that the respondents cannot discriminate and grant relaxation for one set of recruitment while completely denying the same for other set of recruitment.
16. It was also argued that in the light of catena of decisions of Hon'ble the Supreme Court and this Court, rules of (Downloaded on 13/08/2020 at 08:38:28 PM) (5 of 12) [CW-7428/2019] game cannot be changed once the game has begun or the conditions or process or criteria of selection cannot be changed, once the process has begun.
17. Highlighting the distinguishing features of the facts of his case, Mr. Saraswat submitted that petitioner had cleared physical efficiency test, but was not called for interview for which he filed a writ petition (SBCWP NO.3179/2017) and the same was disposed of by this Court vide its order dated 3.5.2018, with a direction to the respondents to decide his representation regarding age relaxation. He painfully pointed out that his representation has been rejected cursorily, without any justifiable reasons. According to him, the respondent-State was required to decide petitioner's representation keeping the spirit of Rule 49 of the Rules of 1998 into consideration.
18. Mr. Khet Singh, learned counsel appearing for the respondent-commission submitted that the clause of age relaxation was stringed/added in the advertisement due to inadvertence. When the State and Commission realized that there was neither any power to relax nor was there any corresponding amendment in the Rajasthan Jail Subordinate Service Rules, 1998 (hereinafter referred to as 'the Rules of 1998'), the respondent- commission corrected its mistake and immediately issued the corrigendum dated 8.7.2014.
19. It was vehemently argued by Mr. Rajpurohit that the petitioner's argument that the rules of game have been changed by the respondents, is not tenable inasmuch as on the date of issuance of corrigendum dated 8.7.2014, only the application forms were submitted. The recruitment, as a matter of fact, had not begun inasmuch as the written examinations were held as late (Downloaded on 13/08/2020 at 08:38:28 PM) (6 of 12) [CW-7428/2019] as on 15.3.2016, before which date all the candidates had been duly informed about denial of age relaxation, while liberty was also given to get the fee back.
20. According to Mr. Rajpurohit, the petitioner has taken part in the process at his own sweet will, knowing it fully well that he is not eligible. Such an incumbent cannot be permitted to challenge the terms of the advertisement merely because he has appeared.
21. Learned counsel would further argue that if the petitioner had any grievance, he ought to have challenged the action of the State or should have sought appropriate relief from this Court; he should have either prayed for amendment in the rules immediately on issuance of corrigendum, at least prior to taking part in examination or should have approached State Government in this regard.
22. It was submitted that the Division Bench judgment in the case of Shahjad Khan (supra) on which heavy reliance has been placed by the petitioner is of little avail to him because the petitioner(s) in that case had timely approached the Division Bench of the High Court and appropriate direction for grant of relaxation were sought, whereas the present petitioner has neither represented to the Government nor has he sought direction for relaxation during the process of selection.
23. Mr. Choudhary, learned counsel appearing for the respondent-State while aligning with the arguments of Mr. Rajpurohit added that it is the discretion of the State to grant or not to grant relaxation for a particular post; until and unless by a conscious decision the rules governing the recruitment are amended, relaxation cannot be claimed as a matter of right. (Downloaded on 13/08/2020 at 08:38:28 PM)
(7 of 12) [CW-7428/2019] According to him when the State decided to amend so many service rules and inserted provision for age relaxation and not chose to amend the Rules of 1998, it should be taken to be a conscious decision of the State not to provide for age relaxation.
24. Heard.
25. Indisputably, the written examinations for the selection in question, which was set in motion vide advertisement dated 2.5.2013 were held on 15.3.2016. Much before the examinations were held, the respondents-State and the Commission realized the mistake of providing for age relaxation, whereas the Rules of 1998 did not contain any provision for grant of relaxation.
26. It is also not in dispute that various service rules were amended in 2008 and specific provisions for relaxation of age were incorporated in many rules giving relaxation of 3 years in the event of recruitment not taking place.
27. According to the respondents since no such amendment was introduced in the Rules of 1998, age relaxation, which was originally offered in the advertisement, was taken back and a corrigendum dated 8.7.2014 to this effect was issued.
28. Regardless of the aforesaid corrigendum taking away age relaxation, the petitioner took a conscious call to take part in the examinations, which were held after about 2 years of the corrigendum and 3 years from the date of advertisement.
29. The petitioners who are claiming age relaxation were required to take up their remedies and challenge the action of obliterating the age relaxation in accordance with law, if they thought that they had a vested or subsisting right. Petitioners have not challenged so called withdrawal of relaxation for years. (Downloaded on 13/08/2020 at 08:38:28 PM)
(8 of 12) [CW-7428/2019] It is only after refusal to participate in Physical Efficiency Test/Interview, they have thought of challenging such withdrawal.
30. In considered opinion of this Court, the petitioner having knowledge of withdrawal of stipulation of age relaxation cannot be permitted to question such withdrawal after 3 years.
31. The result of the written examinations was declared on 24.1.2017 and after physical efficiency test the successful candidates were invited for interview in March, 2017. It was only in March, 2017, when the petitioner was not invited for interview, he rushed to the Court and filed writ petition (SBCWP No.3985/2017) and questioned the action of the respondents.
32. As a matter of fact, the petitioner has acquiesced, rather accepted his ineligibility, yet took a chance of appearing in the examination.
33. Petitioners' challenge even in the year 2017 was, a challenge to corrigendum notification dated 8.7.2014, which was highly belated, having regard to the fact that till such time, the process of selection was almost over.
34. If any indulgence at the instance of the petitioner is granted at this stage, it would amount to misplaced sympathy and would be inequitable to other candidates like the petitioner, who became age barred on account of corrigendum dated 8.7.2014 and who neither took part in the process of recruitment nor were invited for interview.
35. That apart, even if petitioner's contention is examined on merit, this Court does not find any subsisting or crystallized right in petitioner's favour, merely because the advertisement dated 2.5.2013 offered an age relaxation. Admittedly, the stipulation of age relaxation was not supported by the Rules of (Downloaded on 13/08/2020 at 08:38:28 PM) (9 of 12) [CW-7428/2019] 1998. There was no amendment providing for relaxation in the event of recruitment not taking place. Petitioner's claim of relaxation sans statutory provisions or specific and conscious decision of the State Government is untenable.
36. So far as Rule 49 of the Rules of 1998 is concerned, the same also does not serve the cause of the petitioner, particularly when the recruitment is already over. A perusal of Rule 49 reveals that it confers a power upon the State to give relaxation to the conditions of eligibility, but the same conveys a case specific power of relaxation. Even if it is held to be a power to provide a general power of age relaxation, then also, Rule 49 can be pressed into service before commencement of the recruitment process.
37. Had the petitioner invoked the powers of the State Government under Rule 49 by making a representation immediately on issuance of corrigendum dated 8.7.2014, things would have been different. Or if the petitioner had approached this Court immediately upon issuance of corrigendum dated 8.7.2014, the Court if persuaded, could have required the respondents to grant such relaxation. But in any case, powers under Rule 49 cannot be invoked after the selection is over.
38. As such, this Court does not find any error in the State's action in not granting relaxation. Impugned order dated 2.8.2018 rejecting representation of Mahesh Kumar cannot be faulted with.
39. Heavy reliance was placed by learned counsel for the petitioner upon Division Bench judgment dated 14.12.2017 rendered in the case of Shahjad Khan (supra). A perusal of the factual matrix of the case aforesaid clearly reveals that there is striking difference in the facts. The petitioner therein had (Downloaded on 13/08/2020 at 08:38:28 PM) (10 of 12) [CW-7428/2019] approached the Court immediately after issuance of advertisement dated 5.10.2016, which is evident from the opening para of the judgment, which reads thus:
"The present writ petitions have been filed by the prospective candidates who intended to participate in the selection process initiated by the RPSC for the post of Sub-Inspector, the post which is included in the schedule appended to the Rajasthan Police Sub-ordinate Service Rules, 1989 ('the Rules') notified vide advertisement dt. 05.10.2016."
40. During the pendency of the writ petition, the State Government came with a Government order/notification dated 22.6.2017 providing age relaxation in the recruitment for Sub- Inspector/Platoon Commander Direct Recruitment, 2016. A perusal of the said Government order reproduced in judgment of Shahjad Khan's case (supra) clearly reveals that it was provided as an exception and clear provision was made that all candidates, who would be eligible as a consequence of such age relaxation would be permitted to fill the application form.
41. The Division Bench judgment in the case of Shahjad Khan (supra) does not lay down that age relaxation is a matter of right and can be claimed as such. As a matter of fact, Division Bench has simply noted the contents of the order dated 22.6.2017 and disposed of the writ petitions. Hence, the same does not lend any support to the case of the petitioner.
42. It is noteworthy that the above referred Government order dated 22.6.2017 was applicable only for the recruitment of the year 2016 and the same was given as an exception, that too, much before the recruitment process actually began.
43. The petitioner cannot claim any parity as he had taken part in the recruitment of 2013. Merely because the appointing (Downloaded on 13/08/2020 at 08:38:28 PM) (11 of 12) [CW-7428/2019] authority and the department is same, equal treatment cannot be claimed. In absence of a conscious decision of the State to provide such relaxation, this Court does not find any fault in the action of the respondents in issuing corrigendum dated 8.7.2014, when they realized that there exists no power to grant age relaxation in the concerned Rules of 1998, as was present in various other service rules. Any age relaxation given in absence of statutory power would have been without authority of law.
44. The relaxation which was wrongly granted, has rightly been withdrawn.
45. This Court is also not much impressed with the argument of learned counsel for the petitioner that the corrigendum dated 8.7.2014 amounts to changing the rules of game after the game has begun. As a matter of fact, the principle enunciated by the Supreme Court in this regard relates to changing the rules of recruitment or amending selection criteria or syllabus etc. The reason for such principle is that the candidates based on such criteria have begun with a mind set and the sudden change adversely affects skills.
46. In the opinion of this Court, omitting the condition/clause of the advertisement regarding age relaxation, in the present set of facts, cannot be held to be changing the rules of game, particularly when, no substantial step(s) except accepting application form were taken by the time, impugned corrigendum was issued.
47. Petitioner's argument that when the Home Department of the State has given age relaxation in the recruitment of Sub- Inspector/Platoon Commander, the same department cannot deny such relaxation to the candidates vying for the post of Assistant (Downloaded on 13/08/2020 at 08:38:28 PM) (12 of 12) [CW-7428/2019] Jailor, though appears to be attractive at the first flush, but turns out to be hollow if examined carefully. The relaxation referred to and relied upon by the State was granted on 22.6.2017, by which time the recruitment in question was already over. There is nothing on record to show that petitioner or any other candidate has ever prayed for or applied for such relaxation. Hence, ground of discrimination so zealously put-forth by the petitioner, does not cut any ice.
48. Viewed from all angles, this Court hardly finds any substance in the petition(s).
49. Consequently, both the petitions fail.
50. The stay order granted by this Court stands vacated. The stay applications also stand disposed of accordingly.
(DINESH MEHTA),J 103-cpgoyal/-
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