Rajasthan High Court - Jodhpur
"Prem Prakash Sharma vs Rsrtc" Decided On 9.11.2 on 20 March, 2015
Author: Sunil Ambwani
Bench: Sunil Ambwani
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B.CIVIL SPECIAL APPEAL NO.1501/2014
DATE OF ORDER: 20.03.2015
HON'BLE THE ACTING CHIEF JUSTICE MR.SUNIL AMBWANI
HON'BLE MR. JUSTICE AJIT SINGH
Mr.Lokesh Mathur, for the appellant.
Mr.Harish Purohit, for the respondents.
We have heard learned counsel for the parties. The appellant-petitioner appeared in the selections for the post of Conductor for which the written test as well as trade test were held. His name was not included in the select list. A writ petition being SBCWP No.13230/2012 was filed by him in which an order was passed on 4.2.2014 to decide his representation. By an order dated 11.3.2014 passed by Shri Vimal Kumar Jain, Executive Director (Administration), Rajasthan State Road Transport Corporation, Headquarter, Jaipur, the representation was rejected on the ground that the appellant had failed to secure the minimum pass marks i.e. 30 marks in the Trade Test. In the order deciding the representation, it was further stated that appellant-petitioner is also not entitled to the benefit of the orders passed in the writ petitions, challenging the selections on the ground that the driving licence should not be a condition for eligibility to apply for the post of Conductor. It was stated that in compliance of the directions of this court passed on 30.7.2012 in Review Petition No.57/2012 in SBCWP No.3600/2012, the appointment orders of 55 persons were cancelled and that in the year 2009-2010 and 2010-2011, total number of 1584 posts have been filled-in. The remaining writ petitions were dismissed 2 by order dated 9.11.2011.
The appellant-petitioner challenged the order deciding his representation in writ petition being SBCWP No.4300/2014, which was dismissed on 2.9.2014, giving rise to this Special Appeal.
Learned Single Judge dismissed the writ petition on the ground that petitioner's case that even after passing the order on his representation, some candidates having lesser percentage of marks, were given appointment, was not correct and that if any candidate is still working having lesser percentage of marks than the petitioner, then he is required to file a contempt petition because the court is not required to pass orders all over again. The writ petition was dismissed with liberty to file a contempt petition, if any candidate having lesser percentage of marks than the petitioner is still working.
Learned counsel for the appellant submits that there was no occasion for the appellant to file any writ petition earlier, as he possessed the driving licence. In SBCWP No.13855/2011 "Prem Prakash Sharma vs. RSRTC" decided on 9.11.2011 alongwith connected matters, which was the first writ petition filed by the persons who were not having driving licence, a judgment was passed on agreed terms to provide average marks of the written test to the persons for which trade test was not required. He further submits that the question of obtaining minimum marks in the trade test was not related with the question of having driving licence and, thus, the minimum marks 3 in the trade test having been relaxed by the court in the earlier litigation, the appellant-petitioner was entitled to be selected and the marks in the trade test were to be ignored, in which he had secured sufficient marks to be included in the merit list.
Learned counsel appearing on behalf of the Corporation submits that appellant-petitioner has appeared in the selections without raising any protest. He did not challenge the requirement of minimum marks in the trade test. Having appeared in the selection and having failed to secure the minimum pass marks in the trade test, he cannot turn around and claim benefit of the subsequent litigation in which this court has confined the relief to only those persons, who had approached this court on or before 9.11.2011. The relevant part of the judgment in SBCWP No.3600/2012 "Ramesh Chand vs. RSRTC" decided on 30.7.2012 alongwith connected matters, of which the advantage is sought to be taken by the appellant-petitioner, is quoted below:
I have considered the submissions of learned counsel for parties and find that judgment in the case of Prem Prakash Sharma (supra) was more or less on agreed terms. As per the judgment in the case of Prem Prakash Sharma (supra), revised marks in the trade test was to be applied. The issue aforesaid was considered in the light of the condition to possess driving licence for the post of Conductor and it was only for those who were not in possession of driving licence. The challenge to the condition was thus not made by those who were having driving licence while applying for the post of Conductor. To clarify the aforesaid, the revised criteria for trade test was applicable only on those who approached this court on or before 9.11.2011 i.e. the 4 date of judgment in the case of Prem Prakash Sharma (supra) or in the earlier judgment in the case of Nirmal Kumar Jain (supra). The judgment aforesaid is not applicable to those who were in possession of driving licence so as Conductor's licence while applying for the post of Conductor and failed to challenge it before appointment. If the Corporation has revised the marks of trade test even for those candidates who were in possession of driving licence and not earlier challenged the condition to possess driving licence while applying for the post of Conductor, are not to be governed by the directions in the case of Prem Prakash Sharma (supra). It is for the reason that immediately after the judgment in the case of Prem Prakash Sharma (supra), appointments were given thus whoever failed to approach this court before appointment cannot be governed by the earlier judgment due to delay and consent of the Corporation is limited to those earlier petitions. Accordingly, if the Corporation has revised the marks of the trade test for those who are in possession of driving licence while applying for the post of Conductor or for those who had not approached this court on or before 9.11.2011 and denied benefit of revised marks to the petitioners then their action becomes discriminatory in nature. Accordingly, they are directed either to withdraw benefit of revised marks in the trade test for those who were not before the court on or before 9.11.2011 and otherwise the condition was not challenged as candidates were in possession of driving licence. If the appointments are cancelled in those cases, it should be by applying principles of natural justice. In case, respondent Corporation takes a decision to continue them, then all the petitioners would be eligible for revised cut off marks in the trade test, who applied for the post of Conductor and if find more marks than of candidates appointed, would also be eligible for appointment. The limited application of earlier judgment with cut off date in the case of Prem Prakash Sharma (supra) can be in view of judgment of the Apex Court in the case of "Kailash Chand Sharma versus 5 State of Rajasthan & ors", reported as (2002) 6 SCC 562.
Therein also, petitions filed after the earlier and main judgment were not entertained."
We have examined the facts and find that appellant- petitioner, in view of the decision of the Hon'ble Supreme Court in the case of Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 following the judgment in Madan Lal vs. State of J&K, (1995) 3 SCC 486 and the subsequent judgments, could not have challenged the prescription of minimum marks in the trade test. The appellant-petitioner was not entitled to invoke the jurisdiction of this court after he found that his name did not figure in the merit list, prepared by the Corporation, as he had appeared in the selections without raising any protest.
It is submitted that once the court has relaxed the minimum marks in the trade test, the appellant-petitioner could not be deprived of the calculation of the total marks to be included in the select list, and if minimum marks in the trade test were not to be taken into consideration, the appellant had secured higher position in the merit list from which the persons having lesser marks than him were appointed.
We are not impressed with the submission, as the appellant had appeared in the selection process and failed to secure the minimum pass marks in the trade test. It was only after he found that his name did not figure in the merit list prepared by the Corporation that he approached this court claiming advantage of subsequent litigation in which this court 6 has confined the relief to only those persons, who had approached the court on or before 9.11.2011. The benefit as such of ignoring minimum marks in the trade test cannot be extended to the appellant-petitioner in view of the directions issued by the court, quoted as above.
In the present case, we find that the appellant-petitioner had filed the writ petition in the year 2012 much after the order of this court dated 9.11.2011 and, thus, even if he was not having driving licence, since he had appeared in the selections and had also participated in the trade test and could not secure the minimum pass marks, he cannot be given the relief for not being included in the select list.
It has been clarified by the learned counsel for the Corporation that all those, who were having lesser marks and were selected, their services have been terminated and the writ petitions filed by them, were dismissed against which special appeal being DBCSA No.718/2013 was also dismissed by the Division Bench of this court at Jaipur Bench on 24th September, 2013.
For the aforesaid reasons, the Special Appeal is dismissed.
(AJIT SINGH), J. (SUNIL AMBWANI), A.C.J. RANKAWAT JK, PS