Rajasthan High Court - Jodhpur
Sukhram Vishnoi vs State Of Rajasthan ... on 16 May, 2024
Bench: Dinesh Mehta, Rajendra Prakash Soni
[2024:RJ-JD:22189-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 57/2023
Sukhram Vishnoi S/o Sh. Veerma Ram Vishnoi, Aged About 42
Years, Resident Of Village Phoolan, Post Deora, Tehsil Shiwana,
District Barmer (Raj.).
----Appellant
Versus
1. State of Rajasthan through The Secretary, Department of
Personnel, Government of Rajasthan, Jaipur, Rajasthan.
2. Rajasthan Public Service Commission, Ajmer through its
Secretary.
3. Neelam Choudhary D/o Shri Rameshwar Dayal
Choudhary, Behind Bright Moon School, Khadi Bahwan
Road, Chomu, Jaipur. Presently Posted As RPS, Asstt.
Commandant, 8th RAC, New Delhi.
4. Vaibhav Sharma S/o Shri Purushottam Sharma, Resident
Of 4-K/137-138, Shivaji Park, Alwar. Presently Posted As
RPS, Circle Officer Gangdhar, District Jhalawar
(Rajasthan).
----Respondents
For Appellant(s) : Mr. Ravi Bhansali, Sr. Advocate
assisted by Mr. Vipul Dharnia
Mr. Sukhram Vishnoi, present in
person
For Respondent(s) : Mr. Mahaveer Bishnoi, AAG assisted
by Mr. Gaurav Bishnoi
Mr. Tarun Joshi, through Vc
Mr. Vikram Singh
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HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Judgment Reportable 16/05/2024
1. The appeal in hands is directed against the order dated 19.12.2022 passed by learned Single Judge, whereby the writ petition filed by the appellant-writ petitioner was dismissed.
2. The facts pertinent for the present purposes are that an advertisement dated 28.06.2008 was issued by the Rajasthan Public Service Commission (hereinafter referred to as the 'Commission') inviting applications for the common exam held for various posts, commonly known as Rajasthan State and Subordinate Services Combined Competitive Examination 2008 (hereinafter referred to as 'the Examination-2008).
3. The appellant who had already entered in Panchayat services in the year 2007, wanted to join for State Administrative and Police Services, hence, filled up a form giving choice for these two services. He cleared preliminary examination so also the main examination and appeared in the interview.
4. When the final result was declared, the appellant and two other candidates namely Neelam Choudhary and Vaibhav Sharma secured equal marks (865); the appellant was placed at merit No.60 while other two were given merit position No.58 and 59, respectively. Later on, despite having marks equal to the cut off (865), the name of appellant possessing merit No.60 was not recommended, while names of other candidates (merit Nos.58 &
59) were recommended and they were allotted Police Services. (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (3 of 15) [SAW-57/2023]
5. It may be mentioned that as per the norms then prevailing, the Commission had given merit positions on the basis of marks obtained in the viva-voce and since the appellant was having marks lesser than Neelam Choudhary and Vaibhav Sharma in viva-voce, he was placed at merit No.60.
6. The appellant had opted for RAS and RPS only in the competition in question, his race for these two services was over, as the seats available for such posts were exhausted, by the candidates upto merit No.59. Both Neelam Choudhary and Vaibhav Sharma were alloted RPS Cadre, even though the marks of appellant were equal to them.
7. Being aggrieved of the assignment of serial No.60 despite having secured equal marks, the appellant preferred a writ petition before this Court being S.B. Civil Writ Petition No.7555/2011, with a grievance about the assignment of merit on the basis of marks obtained in the viva-voce.
8. The appellant's writ petition was heard along with a Special Appeal of Bhawani Singh involving identical issue and came to be allowed by Division Bench per-viam judgment and order dated 19.09.2014. While dealing with the Rule 17 and 22 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (hereinafter referred to as 'the Rules of 1999'), the Division Bench held that the criteria adopted by the Commission on the basis of resolution of Full Commission was not proper and in case of doubt, it was incumbent upon the Commission to have obtained clarification from the Department of Personnel as provided under Rule 22 of the Rules ibid.
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9. It may be noted that while deciding the appellant's writ petition as above, the Division Bench had also observed that the direction given by Single Judge (in the case of Bhawani Singh) to accord merit on the basis of date of birth amongst the candidates securing equal marks is also not tenable. But having observed so, the Division Bench left it open for the Department of Personnel (hereinafter referred to as 'DOP') to interpret Rule 17 and the Commission was directed to prepare and declare merit list of the candidates for the competitive examination of 2013 and 2008 in relation to person who have secured equal marks.
10. Pursuant to the order aforesaid, the Commission sought opinion of the Department of Personnel, which in turn by way of its communication dated 20.03.2015 ruled that in case equal marks are obtained by the candidates in the competitive examination, the merit should be determined firstly on the basis of date of birth namely older person in age should be given higher merit and in case the date of birth, is same, then, the candidate who secures higher marks in written examination should be given priority and in the event of both the date of birth and marks in written examination being equal, the person who has secured higher education should be given preference.
11. While issuing such clarification, the Commission put a note of caution that the clarification given would not be applicable on the recruitments which have been finalized and no case shall be reopened.
12. Proceeding in furtherance of the clarification of the DOP, the Commission chose not to change the merit position, as according (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (5 of 15) [SAW-57/2023] to it, the clarification so given by the Department of Personnel was prospective.
13. The appellant again preferred a writ petition (S.B.Civil Writ Petition No.1488/2016), in which the respondent - Commission so also Department of Personnel joined the issue and took a stand that the clarification given by the DOP was prospective in nature and in view of the clear stipulation given therein, the same could not be applied to the subject competitive examinations, which had taken place prior to the issuance of the clarification. The Commission relied upon the condition Nos. 1 and 2 of the clarification dated 20.03.2015 and contended that the clarification given by the DOP was binding on it per force Rule 22 of the Rules of 1999.
14. When the writ petition came up for consideration, learned Single Judge by order under challenge, dismissed the same while observing that the clarification given by the Department of Personnel was binding on the Commission and since the same was made prospective, no fault can be found in the Commission's decision. The observation made by the Division Bench in its order dated 20.08.2015 while dismissing the contempt petition filed by the appellant also persuaded the learned Single Judge to upheld the stance that was taken by the Commission.
15. Mr. Ravi Bhansali, learned Senior Counsel espousing the cause of the appellant, at the outset informed that when the appellant had preferred his first writ petition (in the year 2011), by way of interim order passed therein, the appointments of private respondents were made subject to outcome of the writ petition. While conceding that no interim order of that nature was (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (6 of 15) [SAW-57/2023] passed in appellant's subsequent writ petition being (S.B.Civil Writ Petition No.1488/2016), learned senior counsel argued that as the effected persons (Neelam Choudhary and Vaibhav Sharma) had been impleaded as parties in writ petition and they are party in the Special Appeal as well, there should be no impediment in granting the relief to the appellant, to which he is otherwise entitled.
16. Learned Senior Counsel firstly argued that learned Single Judge has erred in holding that the Commission was bound by the opinion given by the Department of Personnel, even in relation to its applicability. While maintaining that the opinion of the Department of Personnel firstly could not have been prospective, he submitted that if the opinion of the Commission is read in its entirety, it cannot be taken to mean that the Department of Personnel gave the clarification with future effect and the same clarification intended to deny the benefits to the appellant.
17. Learned Senior counsel then took the Court through the observation made by the Division Bench while deciding appellant's earlier writ petition and submitted that while deciding the said writ petition, a specific direction was issued by this Court to the respondent - Commission to take clarification from the Department of Personnel which shall be final and binding upon the Commission.
18. Having argued so, Mr. Bhansali submitted that not only the order of learned Single Judge deserves to be quashed and set aside but also the appellant deserves to be placed in the merit list ahead of the private respondents, as his date of birth is (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (7 of 15) [SAW-57/2023] 04.05.1979, while date of birth of Neelam Choudhary and Vaibhav Sharma is 02.01.1983 and 13.06.1983, respectively.
19. Mr. Joshi, learned counsel appearing for the Commission argued that in the face of the clarification given by the DOP in its communication dated 20.03.2015, more particularly, the notes appended therein, the Commission was left with no discretion but to keep its decision intact, because the Department of Personnel had enjoined upon the Commission not to reopen the selection and recommendation that had already been made. He submitted that by the time the Commission received the clarification (on 20.03.2015), the recommendation for the competitive examination of 2008 had long been made and hence, it was not open for the Commission to change the merit position. Mr. Joshi in this regard navigated the Court through the observations made by the DOP in its communication dated 20.03.2015 and contended that by virtue of Rule 22 of the Rules of 1999, the opinion/clarification of the DOP is final and binding.
20. Mr. Mahaveer Bishnoi, learned Additional Advocate General appearing on behalf of the State submitted that the Department of Personnel has rightly given the clarification and kept its operations prospective, else, it would have disturbed the already finalized recruitments and given rise to complications and litigation.
21. Learned Additional Advocate General invited Court's attention towards the order dated 20.08.2015 of the Division Bench and observation made therein to contend that the Division Bench had in essence affirmed the clarification given by the DOP on 20.03.2015, when appellant's contempt petition was dismissed. (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (8 of 15) [SAW-57/2023] He thus, argued that no interference is warranted in the present case.
22. Heard learned counsel for the parties and perused the material available on record.
23. Before adverting the rival submissions, it would be imperative to first go through the Division Bench judgment passed in appellant's earlier round of litigation. For the purpose of ready reference, the relevant extract thereof is reproduced hereinfra:-
"The Commission is directed to get its doubts removed from the Department of Personnel pertaining to interpretation of the terms "general suitability for service" to determine merits of the persons, who have secured equal marks in the competitive examinations concerned. The reference for removal of doubts is required to be made by the Commission on or before 01.10.2014. The Department of Personnel shall consider the same and remove the doubts in relation to the issue in question within a period of one month thereafter.
The opinion given by the Department of Personnel shall be final. Merit as per Rule 17 of the Rules of 1999 in relation to the candidates who have secured equivalent marks in the competitive examinations of 2003 and 2008 shall be determined by the Commission accordingly. It shall be open for the petitioners to submit representation to ventilate their grievance to the Department of Personnel on or before 10.10.2014.
The Commission, after getting its doubt removed by the Department of Personnel, shall prepare and declare merit list of successful candidates of the competitive examinations of 2003 and 2008 as per Rule 17 of the Rules of 1999 in relation to the persons who have secured equivalent marks and recommend the names of the selected incumbents to the State Government for appointment."
24. It is to be noted that the aforesaid observations which were made by the Division Bench, were made in a writ petition that was filed by none other than the appellant himself. Such being the position, the direction given by the Division Bench has to be given its full play. One cannot afford to be oblivious of the background (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (9 of 15) [SAW-57/2023] that it was the appellant who had raised the issue of irrational criteria being adopted by the Commission. Therefore, the adjudication made by the Division Bench and consequential decision of the Department of Personnel has to be read conjointly and construed accordingly.
25. It is to be noted that even the Division Bench had in unequivocal terms directed the Commission to prepare and declare merit list of successful candidates after obtaining clarification from the Department of Personnel in respect of the recruitments of 2003 and 2008, in which the issue had cropped up and was brought to the notice of the High Court.
26. It will also not be out of place to reproduce the observation made by the Department of Personnel in its clarification dated 20.03.2015 which reads thus:-
"fu.kZ; dh ikyuk esa] vk;ksx ds lansg fuokj.kkFkZ fuEu fn"kk funsZ"k izlkfjr fd, tkrs gSa %& 1- vc rd vk;ksftr la;qDr izfr;ksxh ijh{kkvksa esa] jktLFkku yksd lsok vk;ksx }kjk] Lo;a }kjk fu/kkZfjr ekinaMksa ds vk/kkj ij] leku ^dqy izkIrkadksa* okys vH;fFkZ;ksa dh ikjLifjd esfjV dk fu/kkZj.k dj] tks p;u lwfp;k¡ jkT; ljdkj ¼fofHkUu foHkkxksa½ dks izsf'kr% dh tk pqdh gS] os ;Fkkor ekU; gksxhA ,sls izdj.kksa dks iqu% ugha [kksyk tkosxkA 2- ftu izdj.kksa esa p;u vfHk"ka'kk izsf'kr dh tkuh "ks'k gS@Hkfo'; esa izsf'kr dh tkuh gaS] muesa fdlh Hkh izfr;ksxh ijh{kk esa fyf[kr ijh{kk ,oa lk{kkRdkj esa feykdj ¼dqy½ leku izkIrkdksa okys vH;fFkZ;ksa dh ikjLifjd izkFkfedrk (Merit) fuEu ekinaMksa ds vk/kkj ij fu/kkZfjr dh tkosxh %&
(i) tUefrfFk ds vk/kkj ij] vk;q esa ofj'B vH;FkhZ dks izkFkfedrk nh tkosxhA
(ii) tUefrfFk Hkh leku gksus ij fyf[kr ijh{kk esa vf/kd vad izkIr djus okys vH;FkhZ dks izkFkfedrk nh tkosxhA
(iii) tUefrfFk ,oa fyf[kr ijh{kk ds vad Hkh leku ik, tkus ij mPprj "kS{kf.kd ;ksX;rk/kkjh rFkk mlesa Hkh mPprj "kS{kf.kd ;ksX;rk igys /kkj.k djus okys vH;FkhZ dks izkFkfedrk nh tkosxhA d`i;k Hkfo'; esa esfjV dk fu/kkZj.k mDr fu/kkZfjr ekinaMkuqlkj fd;k tkuk lqfuf"pr djsaA mDr ds izdk"k esa gh Jh lq[kjke fo"uksbZ }kjk izLrqr vH;kosnu dks fuLrkfjr fd;k tkrk gSA ;g dkfeZd foHkkx esa l{ke Lrj ls vuqeksfnr gSA"
27. True it is, that the language used in the above clarification given by the Department of Personnel is prone to confusion and capable of creating a doubt about its applicability. But, if the (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (10 of 15) [SAW-57/2023] clarification dated 20.03.2015 is read holistically, then one would find that the Department of Personnel had made a clear reference of the order of the Division Bench dated 19.09.2014 passed in appellant's writ petition. Hence, the clarification cannot be placed in a vacuum and read in isolation.
28. It is noteworthy that the DOP held that prevailing criteria of "general suitability" was not valid and justified and a new criteria was evolved, but instead of making it applicable to the petitioner's case also, it was made enforceable in future. But such stipulation cannot be read divorced of the context. And the chain of events, which is so interlaced and interlinked cannot be broken just to avoid an exercise which the Commission was supposed to undertake.
29. This Court is unable to countenance the consequence and endure the irony that a clarification that has been given at the instance of the appellant, pursuant to the direction given by the High Court in a writ petition filed by the appellant has been made applicable to all but not to the appellant.
30. We wonder how the appellant be deprived of the fruits arising from his efforts and refused to reap the harvest he sowed.
31. According to us, the Commission was obligated to extend the benefits of the clarification to the appellant and recast the merit list.
32. A simple reading of the observation of the Division Bench judgment dated 19.09.2014 (reproduced in para 22 above) leaves no room for ambiguity that the Commission was bound to apply the clarification and prepare the merit list afresh in light of the clarification.
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33. According to us, the clarification of the DOP was binding per force Rule 22 read with the order of the Division Bench so far as suitability or criterion of suitability is concerned. But, thereafter, the DOP could not have traversed beyond that and ordered that it shall apply to only pending recommendations. Scope of Rule 22 is only confined to interpretation of Rules. If there was any doubt about interpretation of Rule 17, more particularly, about suitability of the candidate, the DOP was the competent authority and it has done what was expected and required of it. Having done so, DOP could not and should not have pronounced upon its applicability. Because that is neither the scope of Rule 22 nor was it called upon to do so by the High Court. Hence, the observation made by the DOP were obitor and the Commission ought not to have felt bound by the impugned notes given in the clarification.
34. Besides above, as far as applicability of the clarification is concerned, the Division Bench had already held that the clarification given by the DOP will be implemented and fresh merit list for examination of 2003 and 2008 shall be prepared. So far as interpretation of Rule 17 is concerned, true it is that the clarification given by the DOP was binding, but when it comes to the applicability of the clarification, what was binding was the direction given by the Division Bench per-viam its order dated 19.09.2014. The stand of the Commission is thus, clearly in the teeth of the direction given by the Division Bench in its order of 19th September, 2014.
35. We find it surprising rather disturbing that the Commission felt bound by the clarification given by the DOP, even in relation to its applicability, whereas it was under the order of this Court to (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (12 of 15) [SAW-57/2023] implement and carry out the clarification so given by the DOP. Needless to say that the order of the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India was having overarching and overriding effect so far as period of applicability and scope of the clarification given by the DOP is concerned.
36. Adverting to the observation made by the Division Bench in its order dated 20.08.2015 (while deciding the contempt petition) suffice it to say that the contempt petition was preferred for initiating proceedings against the Secretary of the Department of Personnel in which the Division Bench was required to examine as to whether the Department of Personnel had committed willful disobedience or non-compliance amounting to contempt of the Division Bench's judgment passed in appellant's case. And therefore, when the Division Bench found that there was no willful disobedience on the part of the Department of Personnel, it cannot be said that the decision of the DOP has been approved/upheld even impliedly.
37. According to us, the parameters and yardsticks of deciding the contempt petition are entirely different - while deciding a contempt petition, the Court is required to see the element of willful disobedience and not the correctness of the order. Simply because the contempt petition has been dismissed, it cannot be said that the validity of the decision of the DOP has been examined and affirmed by the Division Bench.
38. There is yet another perspective of the issue before us. Indisputably, the Commission had since long been adopting the criteria of reckoning merit on the basis of marks given in viva- (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (13 of 15) [SAW-57/2023] voce/interview; it was the appellant (for Examination of 2008) and other candidate Bhawani Singh Charan (for Examination of 2003) who questioned the reasonableness and rationale of such criterion. If was the appellant, who persuaded the High Court to hold that there was an inherent flaw in such criterion being practiced by the Commission and it was only in furtherance of the direction given by the High Court, the DOP found it fallacious. In spite of this, if the appellant is not given the relief, it would be antithesis to the very rule of law and travesty of justice.
39. If the appellant is denied the relief on the ground that the clarification is prospective, then, in every case, whenever a view is taken for the first time by the Courts, which is at variance from the long drawn practice of the State, then such person would be conveniently denied relief under the pretext that the principle or judgment would operate prospectively. According to this Court, it would be unjust that all others who would rely upon such judgment would be benefited of the law so laid down but such litigant himself. In other words, one who is the torch-bearer would languish in darkness and others would thrive in light of such exposition. Such situation or result would be unjust and inequitous, to say the least.
40. The potential litigants meted with illegalities or faced with arbitrariness in such eventualities would have no incentive to litigate-if they succeed, their case would continued to be governed by the old norms and parameters which have been declared illegal, while the very law or judgment would apply to the future generations. According to us, the litigants who give an opportunity to the Courts to brush aside the outdated norms and outlived (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (14 of 15) [SAW-57/2023] doctrines, in a way contribute to evolution of law and thus, they deserve their legit due, if not the accolades.
41. As a consequence of what we have discussed and observed hereinabove, we had almost formed an opinion that the appellant was entitled to be placed higher than the private respondents, but because a period of about 15 years has since passed, instead of giving direction outrightly, as it might adversely affect the rights and seniority position of not only respondent Nos. 3 and 4, but also of other candidates, who have joined the services in subsequent recruitments, we paused and posed a specific query to the appellant who was present in the Court- "Whether he would be willing to join the Police Services, if his seniority is reckoned from the date he joins the services?" He gleefully accepted such proposal, albeit with a caveat that his services so far rendered in Panchayati Raj Department be protected.
42. Hence, we see no impediment in giving the relief to the appellant because the same would not affect the rights of already selected candidates. Consequently, this intra Court appeal is allowed; the order dated 19.12.2022 of the learned Single Judge subject matter of instant appeal is quashed and set aside.
43. The Commission is directed to recommend appellant's name at serial No.57A, which shall be above the name of Neelam Choudhary for the recruitment of year 2008 on or before 30.06.2024. On receipt of the recommendation so made, the State shall accord appointment to the appellant in police services on or before 31.08.2024, if he is otherwise suitable and eligible. The appellant's seniority in police services shall be reckoned from (Downloaded on 20/05/2024 at 08:38:05 PM) [2024:RJ-JD:22189-DB] (15 of 15) [SAW-57/2023] the date he joins the police services or 01.09.2024, whichever is earlier.
44. The services rendered by the appellant in the Panchayati Raj Department shall be adjusted/appropriated in accordance with law, including Rule 25 of the Rajasthan Services Rules, 1958.
45. Needless to mention that the present adjudication made in relation to the clarification of the Department of Personnel dated 20.03.2015 shall be confined to the appellant only. This may also apply to Bhawani Singh as well (writ petitioner in S.B. Civil Writ Petition No.3320/2006), if his cause still subsists, subject of course to just objection to be raised by the State.
46. Stay application also stands disposed of accordingly.
(RAJENDRA PRAKASH SONI),J (DINESH MEHTA),J
27-raksha/-
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