Rajasthan High Court - Jaipur
Saurabh Kumar Kothari & Others. vs Rpsc & Others. on 3 February, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICIATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR 1. D.B.Special Appeal (Writ) No.1379/2014. Saurabh Kumar Kothari & Others. VERSUS RPSC & Others. 2.D.B.Special Appeal (Writ) No.1388/2014. R.P.S.C. VERSUS Rajkumar Sambharia & Another. 3.D.B.Civil Writ Petition No.12370/2014. Pradeep Gupta & Others. VERSUS RPSC & Another. 4.D.B.Special Appeal (Writ) No.1389/2014. R.P.S.C. VERSUS Mukesh Kumar Meena. 5.D.B.Special Appeal (Writ) No.1907/2014. R.P.S.C. VERSUS Rajesh & Another. 6.D.B.Special Appeal (Writ) No.2089/2014. R.P.S.C. VERSUS Suresh Kumar Kuleep & Others. 7.D.B.Special Appeal (Writ) No.2104/2014. R.P.S.C. VERSUS Sunil Gupta & Others. 8.D.B.Special Appeal (Writ) No.195/2015. R.P.S.C. VERSUS Ram Swaroop Khowal. 9.D.B.Special Appeal (Writ) No.235/2015. Prakash Chand Jat & Others. VERSUS RPSC, Ajmer & Another. 10.D.B.Civil Writ Petition No.13964/2014. Mukesh Sharma. VERSUS State of Rajasthan & Another. 11.D.B.Civil Writ Petition No.14691/2014. Surender Gupta & Another. VERSUS RPSC & Another. 12.D.B.Civil Writ Petition No.14736/2014. Rajesh Kumar Singhal & Another. VERSUS RPSC, Ajmer & Another. Order reserved on : 19th January, 2016. Date of Order : 3rd February, 2016. PRESENT REPORTABLE HONBLE MR.JUSTICE AJAY RASTOGI HONBLE MR.JUSTICE J.K.RANKA Mr.S.P.Sharma, Senior Counsel assisted by Mr.Gaurav Sharma, Mr.Sunil Samdaria, Mr.Shobhit Tiwari, Mr.O.P.Mishra, Mr.Atul Kumar Jain, Mr.Vigyan Shah, Mr.Akhil Simlote, Mr.Ram Pratap Saini, Mr.Abhishek Sharma, Mr.Bhupendra Sharma, Counsel for appellants/petitioners. Mr.Amit Kuri, Mr.S.N.Kumawat, Counsel for appellant-RPSC. Mr.Rajendra Prasad, Addl.Advocate General with Mr.Inderjeet Singh, Addl.Advocate General with Mr.J.M.Saxena, Addl.Advocate General with Mr.Anurag Kalawatia, Counsel for State. Mr.R.D.Rastogi, Asstt.Solicitor General assisted by Mr.Ashish Tiwari, Counsel for UOI. Mr.Mahipal Kharra, Mr.J.R.Tantia, Mr.Ravi Chirania, Mr.Prahlad Sharma, Mr.Deepak Sharma, Mr.Umesh Kumar, Mr.M.S.Raghav, Counsel for respondents. ***** BY THE COURT (Per Honble Mr.Ajay Rastogi,J):
Instant batch of appeals/writ petition are in reference to the selection process which was initiated by the Rajasthan Public Service Commission for holding recruitment for the post of Lower Division Clerk/Stenographer which was initiated pursuant to its advertisement dt.17.05.2011 followed with corrigendums dt.14.09.2011 & 27.09.2011 for the post of Lower Division Clerk and by a separate advertisement dt.06.09.2011 for the post of Stenographer. It may be noticed at this stage that the post of Lower Division Clerk & Stenographer are included in the respective schedules appended to the Rules namely; the Rajasthan Secretariat Ministerial Service Rules, 1970, the Rajasthan Subordinate Offices Ministerial Service Rules, 1999 and the Rajasthan Public Service Commission (Ministerial & Subordinate Service) Rules & Regulations, 1999 and the criteria along with the eligibility and procedure of selection are one & the same.
After placing reliance on the judgment dt.02.04.2012, on the request made by counsel for the writ petitioners, orders have been passed by the ld.Single Judge dt.25.07.2014, 03.09.2014, 01.10.2014 & 09.10.2014. However, merits of individual cases have not been examined obviously for the reason that since the controversy came to be decided by the ld.Single Judge under order impugned dt.02.04.2012 & 01.05.2014.
Thus, for the sake of convenience, a consolidated advertisement came to be issued by the Rajasthan Public Service Commission identifying the vacancies of the Rajasthan Secretariat Ministerial Services, Rajasthan Subordinate Offices Ministerial Services and the Rajasthan Public Service Commission and the selection process came to be initiated in reference to different post of Lower Division Clerk & Stenographer in the year 2011.
The batch of special appeals are basically assailing the selection process held for the post of Lower Division Clerk considered by the ld.Single Judge and interpretation of the scheme of Rules for which a detailed reference will be made at a later stage. At the same time, writ petitions have been filed by some of the candidates assailing the validity of the proviso to R.29 of the Rules, 1999 which envisages that only such of the candidates could be recommended by the Commission who have obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer and this condition according to the petitioners is unreasonable and has no nexus with the object sought to be achieved and violative of Art.14 of the Constitution and those who qualified in Phase-I with 40% marks in aggregate and Phase-II with 36% in aggregate of the competitive examination be declared eligible & be recommended for the post of Stenographer.
At the same time, D.B.Special Appeal (Writ) No.1388/2014 has been preferred by the Rajasthan Public Service Commission assailing order of the ld.Single Judge where exemption has been granted to the members of SC/ST in holding minimum 36% marks in each of the paper of Phase-II of the competitive examination for the post of Lower Division Clerk.
With the consent of the parties, we have taken note of the facts from D.B.Special Appeal (Writ) Nos.1379/2014 & 1388/2014 and D.B.Civil Writ Petition No.12370/2014.
As the pleaded facts would reveal, a process for filling up various posts of Stenographers was initiated vide advertisement dt.06.09.2011 indicating the vacancies separately for the Secretariat Ministerial Services and the Subordinate Offices Ministerial Services and as already referred, the eligibility and criteria of selection process in both the separate set of Rules i.e. the Rajasthan Secretariat Ministerial Service Rules, 1970 and the Rajasthan Subordinate Offices Ministerial Service Rules, 1999 are one and the same. At the same time, separate advertisement came to be notified on 17.05.2011 inviting applications for the post of Lower Division Clerk in the Rajasthan Secretariat Ministerial Service Rules, 1970, the Rajasthan Subordinate Offices Ministerial Service Rules, 1999 and the Rajasthan Public Service Commission (Ministerial & Subordinate Service) Rules & Regulations, 1999 and in the aforesaid Notification dt.17.05.2011 applications were invited for 25 vacancies in the Rajasthan Public Service Commission and for 325 vacancies in the Secretariat Ministerial Services. Thereafter, a corrigendum came to be issued by the Commission on 14.09.2011 and the number of vacancies of Lower Division Clerk in the Rajasthan Public Service Commission were increased from 25 to 31 and at the same time, 1366 posts of Lower Division Clerk of the Subordinate Offices Ministerial Services came to be advertised.
After issuance of corrigendum dt.14.09.2011, another corrigendum came to be issued by the Commission dt.27.09.2011 indicating bifurcation of 1366 vacancies of Lower Division Clerk to be filled under the Subordinate Offices Ministerial Service Rules, 1999 and this came to be further increased to 1585.
According to the scheme of examination, amongst others, academic condition of eligibility, as prescribed by the Rules, as amended in the year 2010, as envisaged therein, was set out. As individual facts having regard to the nature of the challenge made, would not be essential to be dilated upon, it would be expedient to advert to the Rules, at this stage.
Suffice it to mention that R.6 of the Rules, 1999 outlines the method of recruitment to the various posts in the service, as indicated in Column (3) of Schedule-I and the posts of Lower Division Clerk and Stenographer are to be filled by direct recruitment in accordance with the procedure laid down under Part-IV of the Rules, 1999 and in accordance with the scheme & syllabus of the competitive examination, as prescribed in the Schedules-II & III through the agency of the Commission. It will be appropriate to quote R.6 of the Rules, 1999, relevant for the present purpose, which read ad infra:-
6.Methods of Recruitment:- (1) Subject to the provisions herein after contained in these Rules, recruitment or appointment to posts in the services shall be made by the following methods of recruitment in the proportion as indicated in Column No.3 and 4 of Schedule-I:-
(1) by direct recruitment in accordance with the procedure laid down in Part-IV of these Rules;
Provided that the post of Stenographer and Lower Division Clerk shall be filled in by Combined Competitive Examination in accordance with the Syllabus as prescribed in Schedule-II & III through the agency of the Commission.
Provided further that the Appointing Authority may appoint a physically handicapped person to any post of the service in accordance with the provisions of the Rajasthan Employment of Physically Handicapped Rules, 1976. Such appointment shall be treated as regular appointment.
Direct recruitment has to take place in terms of Part-IV (Procedure for Direct Recruitment) of the Rules, 1999 and R.21 of the scheme clearly postulates that the Commission may hold combined competitive examination for the vacancies of Lower Division Clerk/ Stenographer under these Rules & Rules of 1970 and has to prepare two lists of the successful candidates i.e. one list shall be prepared in accordance with R.22 of Rules, 1970 and the another list shall be under the provisions of R.28 & R.29 of the Rules, 1999 and the Commission has to conduct a competitive examination, as per syllabus of the examination, as contemplated u/R.23 of the Rules, 1999, as specified under Schedules-II & III appended thereto.
As per the scheme & syllabus of the competitive examination for the post of Lower Division Clerk, it has to be in two phases. Phase-I of examination consists of compulsory paper of General Knowledge, Everyday Science, Mathematics & General Hindi and Phase-II of examination consists of typewriting in Hindi with Speed Test & Efficiency Test or typewriting in English with Speed Test & Efficiency Test. Similarly, according to the scheme & syllabus of the competitive examination for the post of Stenographer, it too has to be in two phases. Phase-I of examination consists of paper on General Knowledge, Everyday Science, Mathematics, General Hindi & English and Phase-II of examination consists of Speed Test either Shorthand in English or Shorthand in Hindi and typing-translation of Shorthand writing.
In nutshell, the scheme of Rules in holding competitive examination for the post of Lower Division Clerks and Stenographers of which we have made a reference, taking note of the amendment Notification dt.05.07.2010 clearly envisages that the competitive examination has to be held in two phases i.e. Phase-I & Phase-II and only such of the candidates who have obtained a minimum of 40% marks in each of the paper of Phase-I could only be admitted to Phase-II of the examination, subject to three times the number of advertised vacancies and those candidates who secured minimum of 36% marks in each of the paper of Phase-II of the competitive examination would become eligible if find place in the order of merit recommended by the Rajasthan Public Service Commission for appointment to the State Government.
The scheme of Rules either of the Rajasthan Secretariat Ministerial Service Rules, 1970, the Rajasthan Subordinate Offices Ministerial Service Rules, 1999 or the Rajasthan Public Service Commission (Ministerial & Subordinate Service) Rules & Regulations, 1999 are almost paramateria and a common process of selection came to be initiated for the post of Lower Division Clerk and Stenographer and the extract of scheme which we have taken note of from the Rules, 1999 leaves no manner of doubt that a candidate is required to obtain 40% marks in each of the paper of Phase-I to become eligible for Phase-II and after he/she enters in Phase-II, he/she is required to obtain minimum of 36% marks in each paper of Phase-II and to the aforesaid effect, the Rajasthan Public Service Commission had issued a Press Note dt.14.02.2012 and so also directives were issued regarding procedure to be adopted in Phase-II of the examination on website.
The candidates/participants appeared in Phase-I of the competitive examination held for the post of Lower Division Clerk and failed to secure 40% marks in each of the paper of Phase-I but have secured 40% marks in aggregate i.e. in Paper-1 & Paper-2 of Phase-I, filed writ petitions before the ld.Single Judge of this court and by good number of interim orders, the ld.Single Judge permitted them to participate in Phase-II of the competitive examination which was held on 17th & 18th of March, 2012 and batch of writ petitions came to be allowed vide judgment dt.02.04.2012 and while interpreting R.27 of the Rules & Regulations, 1999, as we have already observed which is paramateria to the scheme of Rules, 1970 and Rules, 1999, the ld.Single Judge under order impugned is of the view that there appears to be a conflict in the proviso to R.28 and the scheme & syllabus of the competitive examination read with explanation Cl.(5) of the amendment Notification dt.05.07.2010 and accordingly directed that such of the candidates who qualified Phase-I with 40% aggregate marks instead of 40% marks in each of the paper of Phase-I of the competitive examination be considered eligible for Phase-II and those who qualified in Phase-II of the competitive examination with 36% marks in each of the paper if find place in the order of merit, shall be recommended by the Rajasthan Public Service Commission and at the same time, further observed that as there is a conflict in the Rules further directed the State Government that before the next selection process be initiated, it would be advisable either to amend R.28 of the Rules, 1970 or the Schedule appended thereto and similar amendment in the Rules, 1970 and Rules, 1999 respectively.
In the light of judgment dt.02.04.2012 of the ld.Single Judge in the case of Lower Division Clerk, writ petitions assailing the selection process held for the post of Stenographer. Those batch of writ petitions were also decided by the ld.Single Judge on the same lines vide judgment dt.29.05.2012 but that has not been further assailed and complied with by the Government.
There is another special appeal No.1388/2014, preferred by the Rajasthan Public Service Commission against order of the ld.Single Judge impugned dt.01.05.2014 of the candidates of SC/ST category participated for the post of Lower Division Clerk and the ld.Single Judge observed that the second proviso to R.28 of the Rules, 1999 has not been taken note of, which grants relaxation to the members of SC/ST and even if they failed to secure 36% marks in each of the paper of Phase-II of the competitive examination, they cannot be declared unsuccessful and accordingly, the ld.Single Judge directed the Commission to evaluate the questions of Hindi Speed, English Speed, Hindi Efficiency and English Efficiency papers and marks obtained by the candidates in Para-1(GK) and Paper-2(Hindi), on that basis, their merit may be revised accordingly and candidates of SC/ST may be recommended for appointment.
At the same time, writ petitions have been filed by the candidates who appeared for the post of Stenographer & assailed validity of proviso to R.29 of the Rules, 1999 which postulates that only such of the candidates could be considered for recommendation who have obtained a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer and there complaint is that the requirement of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer has no nexus with the object sought to be achieved and in fact is unworkable and violative of Art.14 of the Constitution, deserves to be struck down and further sought direction and mandate to the Commission to declare the result of the candidates/participants who secured 36% marks in aggregate in Phase-II and who have been found qualified, may be considered for appointment.
Mr.Sunil Samdaria, Advocate and other counsel appearing for the appellants jointly submit that the scheme of Rules, 1999 or Rules,1970 or Rules & Regulations, 1999, pursuant to which process of selection came to be initiated for the post of Lower Division Clerk is self-explicit and there is no manner of doubt or conflict and on the contrary, it mandating the Commission to recommend only such of the candidates who have appeared and qualified with 40% marks in each of the paper of Phase-I and with 36% marks in each of the paper of Phase-II of competitive examination be finally declared qualified for recommendation and what has been contemplated in the Scheme/Syllabus of competitive examination indicated in Part-II & Part-III of the Schedule appended to the scheme of Rules, it has to be read in tandem with the substantive scheme of Rules and the explanation indicates that the candidates who have qualified Phase-I with 40% marks subject to three times of number of advertised vacancies, such candidates be permitted to participate in Phase-II and those who secured 36% marks in each of the paper of Phase-II of the competitive examination be declared qualified and may be considered for appointment but if the scheme of substantive Rules and schedule of examination/syllabus are read together, there is no ambiguity at all and according to them there is no conflict in the scheme of Rules and scheme of examination/syllabus to be held by the Commission and the whole pretext on which the ld.Single Judge has proceeded in holding that such of the candidates who have secured 40% marks in aggregate in Phase-I be declared eligible to appear in Phase-II of the competitive examination and shall be recommended for appointment is in clear infraction of the scheme of Rules.
Counsel submit that such direction is in conflict with the express provisions of Rules and are not sustainable in law and pursuant to the interim directions of the ld.Single Judge good number of candidates who were not even eligible to participate in Phase-II of the selection process of examination were permitted to participate and finally recommended for appointment by the Commission as well but since when they approached this court by filing of Special Appeals, at that point to time, a public notice came to be published in newspaper dt.17.03.2015 indicating that all such selections which are finalized under the order impugned passed by the ld.Single Judge of this court that shall remain subject to final outcome of the present special appeal and submits that any appointment made will not confer any right in favour of the selected candidates and their fate will remain dependent upon the outcome of the instant special appeals and further submit that their legitimate right of fair consideration has been jeopardized by interference made by the ld.Single Judge under the scheme of Rules which is explicitly clear in terms and need no interpretation.
Counsel further submit that at least this court may direct the Commission to prepare a fresh list of the candidates who have qualified Phase-I of the competitive examination with 40% marks in each of the paper and 36% marks in each of the paper of Phase-II and those who are placed in the order of merit for Lower Division Clerk be recommended and considered for appointment alone against the advertised vacancies.
At the same time, Mr.Sanjeev Prakash Sharma, Senior Counsel appearing for the candidates, who participated in the selection process for the post of Stenographer assailing the validity of proviso to R.29 of the Rules, 1999 and to be more particular assailing the requirement of 36% marks in each of the paper of the Phase-II of the competitive examination for the post of Stenographer and submit that if this condition is allowed to continue, the State Government will not get sufficient number of persons who could man the post which are lying vacant for sufficient long time and the selection process has been initiated for the post of Stenographer after almost 16 years and this time also adequate number of candidates are not made available only for the reason that the candidate has failed to secure 36% marks in each of the paper of Phase-II and the State Government will not get the eligible candidates, as alleged, for times to come and the candidates were waiting in expectation to participate on the basis of the unamended Rules, their right to be treated fairly, could not have been denied in the manner done.
In the connected special appeal, preferred by the Rajasthan Public Service Commission, Mr.Amit Kuri, Advocate appearing for the appellant-Commission submits that the ld.Single Judge has committed error in issuing mandate under order dt.01.05.2014 that such of the candidates who are members of SC/ST and who have not secured 36% marks in each of the paper of Phase-II of competitive examination of the post of Lower Division Clerk they may be granted exemption by invoking second proviso to R.28 of the Rules, 1999 and there candidature may be evaluated accordingly for the purpose of recommending their case for appointment.
Counsel submits that under second proviso to R.28 of the Rules, 1999, it is true that members of SC/ST have been provided relaxation in the percentage of qualifying marks in the type writing test, prescribed in the Rules and under the unamended proviso to sub-rule (3) to R.28 of the Rules, 1999 requirement of 40% marks in each of the compulsory paper and 36% marks in the optional paper in the Lower Division Clerk's competitive examination was required and it was subject to proviso to sub-rule (1) above but that has been deleted by amendment Notification dt.05.07.2010 and it mandates that irrespective of the caste, each candidate has to obtain a minimum 36% marks in each of the paper of Phase-II of the competitive examination with no relaxation to any of the class for the post of Lower Division Clerk and if proviso (2) to sub-rule (1) to R.28 of the Rules and proviso to sub-rule (3) of R.28 of the Rules are to be read together, it clearly mandates the Commission that benchmark of 40% marks & 36% marks in each of the paper of Phase-I & Phase-II respectively has to be obtained while recommending a candidate and even the members of SC/ST have to be recommended who qualified with the benchmark of 40% marks & 36% marks in each of the paper of Phase-I & Phase-II respectively and submits that if at all the petitioners were aggrieved by the benchmark of 36% marks in each of the paper of Phase-II of the competitive examination its validity was not under challenge and the directions of the ld.Single Judge under order impugned to consider the members of SC/ST who qualified Phase-II of the competitive examination with no minimum benchmark of 36% marks to be eligible & their recommendation be made by the Commission, according to the counsel, is clearly in violation of the scheme of Rules, 1999 and indisputably, its validity was not under challenge and that being so, interference made by the ld.Single Judge is not sustainable in law.
Counsel for the State and Commission have supported the submissions made by Mr.Sunil Samdaria, Advocate and both the counsel jointly submit that the State & Commission are still of the view that unless the candidate secure 40% marks in each of the paper of Phase-I and so also 36% marks in each of the paper of Phase-II, as per the scheme of competitive examination for the post of Lower Division Clerk and Stenographer, they are not eligible to be recommended by the Commission for appointment and as regards the scheme & syllabus of the competitive examination, which has been prescribed in Schedule-II & Schedule-III of the scheme of Rules that only gives a explanation that the candidates who secured minimum 40% marks in Phase-I shall only be admitted to Phase-II subject to three times the number of advertised vacancies and the marks obtained by a candidate in Phase-I & Phase-II of the examination are to be counted for determining their final order of merit but that has to be read in tandem with substantive scheme of Rules and that leaves no manner of doubt that even the members of SC/ST have to qualify with minimum 40% marks in each of the paper of Phase-I and with minimum 36% marks in each of the paper of Phase-II of the competitive examination for the post of Lower Division Clerk & Stenographer to make him/her eligible for recommendation and Mr.S.N.Kumawat, Advocate and Mr.J.M.Saxena, Additional Advocate General jointly submit that interference made by the ld.Single Judge in both the heads related to open category as also SC/ST in holding that there is ambiguity or conflict in the substantive Rules and Schedules appended to the Rules, according to them is unsustainable in law and the judgment impugned deserves interference by this court.
It is brought to our notice that the ld.Single Judge has directed the Government that before initiating fresh selection process, because of conflict under the scheme & syllabus & schedule of examination appropriate amendment be made. Counsel has informed that the Government has examined the scheme of Rules & schedule syllabus of examination has been looked into and the rule making authority is of the view that there is no conflict in the scheme of Rules vis-a-vis syllabus & scheme of examination which may call for any amendment as suggested by the ld.Single Judge.
At the same time, per contra, counsel for the private respondents jointly submit that if the scheme of Rules do not tally with the instructions provided under the advertisement or with Schedule-II & Schedule-III which lay down the scheme & syllabus of the competitive examination for the post of Lower Division Clerk, that certainly leaves ambiguity and that benefit must go to the candidates and the ld.Single Judge has not committed any error in extending benefit to the candidates. Counsel jointly submit that once such of the candidates were permitted to participate in Phase-II of the competitive examination who failed to secure 40% marks in each of the paper of Phase-I but finally found place in the order of merit and considered for appointment, at least their appointment should not be disturbed and if this Hon'ble Court considers it fit to interfere that will certainly deprive them of their livelihood.
We have taken note of the scheme of Rules, in detail. As already observed by us that the Rules, 1970 or the Rules, 1999 or Rules & Regulations, 1999 are paramateria & proviso to R.28 of the Rules, 1999 prohibits the Commission not to recommend any of the candidate who has failed to obtain a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Lower Division Clerk and Stenographer, as the case may be. As regards Schedule-II & Schedule-III, it deals with the scheme & syllabus of the competitive examination for the post of Lower Division Clerk and Stenographer and it is true that it is a part of the scheme of Rules and explanation appended thereto, indeed provides a mechanism & proceeding from Phase-I to Phase-II with number of times the candidates could be admitted to Phase-II and what will be the effect of the marks obtained by the candidates in Phase-I and Phase-II for determining their final order of merit and with all respect, we do not find any iota of ambiguity or conflict in the substantive scheme of Rules particularly when proviso to R.28 and proviso to R.29 of the Rules if are read with the scheme & syllabus of the competitive examination for the post of Lower Division Clerk & Stenographer, as amended vide Notification dt.05.07.2010, it leaves no room of interpretation.
The scheme of examination with which we are presently concerned came to be amended vide Notification dt.05.07.2010 and the process was initiated subsequent to the amendment in the scheme of Rules. For the purpose of better appreciation of the scheme of Rules, the relevant provision of R.28 & R.29 with amendment Notification dt.05.07.2010 are reproduced ad infra:-
28. Selection to the post of Lower Division Clerk:- (1) The Commission shall prepare merit list of the candidates declared successful in the Lower Division Clerks Examination:
Provided that the Commission may, to the extent of 50% of the finally intimated vacancies keep names of the suitable candidates on the reserve list. The name of such candidates may, on receipt of requisition within 6 months from the date on which the original list is forwarded by the Commission to the Government in the Administrative Reforms Department in such manner as the Commission may decide, be recommended in the order of merit to the Government in the Administrative Reforms Department for appointment against additional vacancies;
Provided further that the Commission shall also prepare separate list of the candidates belonging to the Scheduled Castes and the Scheduled Tribes, Other Backward Classes, Woman Candidates etc. in accordance with the reservation prescribed by the Government from time to time and it shall not be obligatory for the Scheduled Castes and Scheduled Tribes candidates to obtain the percentage of qualifying marks in the type writing test prescribed in these Rules but the marks obtained in the type writing test shall be added to the aggregate marks obtained by them.
(2) The names of the candidates shall be arranged in the respective lists in the order of aggregate marks obtained by them in the examination.
(3) The Commission may award grace marks upto one in each of the papers and upto three in aggregate to enable a candidate to qualify at the examination who might otherwise have not qualified in the said examination;
** Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 40% marks in each of the compulsory paper and 36% marks in the optional paper in the Lower Division Clerk's Competitive Examination except as provided in the further proviso to sub-rule (1) above.
**Amended vide Notification dt.05.07.2010 :-
Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 40% marks in each of the paper of the Phase-I and a minimum of 36% marks in each of the paper of the Phase-II of the competitive examination for the post of Lower Division Clerk.
29. Selection for Appointment to the post of Stenographer:- (1) The Commission shall prepare lists of candidates declared successful in the Stenographer's Competitive Examination. Such a list shall be sent by the Commission to the Administrative Reforms Department in the Secretariat who shall notify them for information of all the Appointing Authorities. From out of such list the Administrative Reforms Department shall allot candidates to various Appointing Authorities in accordance with the rosters maintained in the Department concerned.
** Provided that the Commission shall not recommend any candidate who is failed to obtain a minimum of 40% marks in each of the compulsory paper and 36% marks in the optional paper.
**Amended vide Notification dt.05.07.2010 :-
Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 40% marks in each of the paper of the Phase-I and a minimum of 36% marks in each of the paper of the Phase-II of the competitive examination for the post of Stenographer.
(2) Before making appointment the Appointing Authority concerned shall satisfy himself/herself by making such enquiry as may be considered necessary that such candidates are otherwise suitable in all respects for appointment to the posts of Stenographers.
SCHEDULE-II SCHEME AND SYLLABUS OF THE COMPETITIVE EXAMINATION FOR THE POST OF LOWER DIVISION CLERKS Scheme of Examination:- The Competitive Examination shall include the following papers and each paper shall carry the number of marks as shown against it, namely:-
PAPERS DURATION MARKS
Phase-I:
(1) General Knowledge, 3 Hours 100
Everyday Science
and Mathematics
(2) General Hindi & English 3 Hours 100
Phase-II: (I) For candidates other than persons with disabilities:-
(1) Type writing in Hindi on computer
(a) Speed Test 10 Minutes 25
(b) Efficiency Test 10 Minutes 25
(2) Type writing in English on computer:-
(a) Speed Test 10 Minutes 25
(b) Efficiency Test 10 Minutes 25
(II) Person with disabilities will be given the average marks obtained by them in Phase-I Explanation:-
(1) XX XX XX (2) XX XX XX (3) XX XX XX (4) The Competitive Examination will be held in two phases- Phase-I & Phase-II. All the papers of Phase-I will be of objective type.
(5) Candidates securing minimum 40% marks in the Phase-I, shall only be admitted to the Phase-II subject to three times the number of advertised vacancies but in the said range all those candidates who secure the same percentage of marks shall be included.
(6) The marks obtained by a candidate in Phase-I and Phase-II of the examination will be counted for determining their final order of merit.
(7) XX XX XX SCHEDULE-III SCHEME AND SYLLABUS OF THE COMPETITIVE EXAMINATION FOR THE POST OF STENOGRAPHER Scheme of Examination:- The Competitive Examination shall include the following papers and each paper shall carry the number of marks as shown against it, namely:-
PAPERS DURATION MARKS
Phase-I:
1 General Knowledge, 3 Hours 100
Everyday Science and General
Knowledge of Rajasthan
2 General Hindi & English 3 Hours 100
Phase-II:
1- English Shorthand (the test 10 Minutes
shall consist of dictation of
100 words per minute)
50
Transcription and typing of 60 Minutes
dictated passage in English on
Computer.
2- Hindi Shorthand (the test 10 Minutes
shall consist of dictation of 50
80 words per minute)
Transcription and typing of 70 Minutes
dictated passage in English on
Computer.
Explanation:-
1- XX XX XX
2- The Competitive Examination will be held in two phases- Phase-I & Phase-II. All the papers of Phase-I will be of objective type.
3- Candidates securing minimum 40% marks in Phase-I, shall only be admitted to the Phase-II subject to three times the number of advertised vacancies but in the said range all those candidates who secure the same percentage of marks shall be included.
4- The marks obtained by a candidate in the Phase-I and Phase-II of the examination will be counted for determining their final order of merit.
5- XX XX XX By Order and in the name of the Governor, Sd/-
(Nalini Kathotia) Deputy Secretary to the Government (Emphasis supplied) That proviso to sub-rule (3) to R.28 under the amendment Notification dt.05.07.2010 castes an obligation upon the Commission not to recommend any of the candidate who has failed to obtain a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Lower Division Clerk and Stenographer. At the same time, under Schedules-II & III, which lay down the scheme & syllabus of the competitive examination for the post of Lower Division Clerk and Stenographer, explanations have been appended thereto and that according to the ld.Single Judge is a conflict in the substantive scheme of Rules and Schedules appended thereto.
At the same time, as regards the Rajasthan Public Service Commission (Ministerial and Subordinate Service) Rules and Regulations, 1999 is concerned, corresponding amendment has been made vide Notification dt.05.07.2010 in the existing second proviso to R.27 of the Rules & Regulations, 1999 by substituting following:-
Provided further that the Commission shall not recommend any candidate for the post of Lower Division Clerks and Stenographers who has failed to obtained a minimum of 40% marks in each of the papers of the Phase-I and a minimum of 36% marks in each of the paper of the Phase-II of the competitive examination.
It is true that the liability imposed in the Schedule is equally binding and it must be read in tandem with the provisions of substantive Rules for all purposes of construction. At the same time, according to sound canons of construction, where a provision is capable of two interpretations, that should be adopted which fits the description but at the same time, expressions in the Schedule cannot control or prevail against the express enactment and if there is any appearance of inconsistency between the Schedule and the enactment, it is always the enactment that prevail and if the enacting part and the Schedule cannot be made to correspond, it is always the later which must yield to the former.
Their Lordships of the Apex Court in Shri Ram, Daya Ram & Ors. Vs. State of Maharashtra reported in AIR 1961 SC 674 has observed ad infra:-
8. ......One of the fundamental rules of interpretation is that if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature....
The first and primary rule of construction is, if the words used are capable of one construction only then it would not be open for the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the object and policy of the statute. It is no doubt true that the words used in the material provisions of the statute have to be interpreted in their plain grammatical meaning and if such words are capable of two constructions then the question of giving effect to the policy or object of the Act can legitimately arise but at the same time, it has to be kept in mind that one of such construction is likely to defeat or impair the policy of the Act whereas the other construction is likely to assist the achievement of such policy and the courts are supposed to prefer to adopt the later construction.
The first rule of construction of a statute is to give the words their ordinary and natural meaning and if the construction of a provision in the statute is clear, it is not for the court to get behind the Rule and hold a roaming enquiry in the reason of the Rule and it is always the duty of court to adhere to the grammatical and ordinary sense of the words used therein and if the meaning of the words is found to be plain and unambiguous, it is bounden duty of the court to give effect to them regardless of any other construction and it would not be justified in ignoring any part of the language of the statute.
Although, we find ourselves in respectful disagreement to what has been expressed by the ld.Single Judge and in our considered view the provision of which we have made a reference in detail and proviso to sub-rule (3) of R.28 of the Rules and corresponding to all the service Rules are self explicit and it mandates the Commission not to recommend such of the candidates who have failed to obtain minimum of 40% in each of the paper of Phase-I & minimum of 36% in each of the paper of Phase-II of the competitive examination held for Lower Division Clerk. It is the duty of the court to give effect to the words regardless of any other consideration and it would not be justified in ignoring any part of the language of the statute and as regards the syllabus & scheme of competitive examination are concerned, it has to be read in tandem with the statute and explanation lays down procedure to be followed for entering from Phase-I to Phase-II and the marks obtained to be taken care of for preparation of the final merit list and the scheme of Rules which is self explicit leaves no manner of doubt and with ordinary & natural meaning of the provisions of the statute, we do not find any conflict with the substantive scheme of Rules of which we have made reference and the Apex Court in the judgment in M/s.Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra & Ors. reported in AIR 1989 SC 2227 has examined that if at all there is some ambiguity between body of the statute and the Schedule appended thereto, how that has to be given effect to and observed that if there is any conflict between body of the statute and the Schedule appended thereto, it is the former that will prevail over the later. The relevant observation made by the Apex Court, is reproduced ad infra:-
29. This brings us to the question of interpretation of the Act and the Schedule with the Explanation, in view of the submission that the Explanation could not have rendered item3(i) of the Schedule redundant. Was there any change of intention of the Legislature in this regard?
30. A Schedule in an Act of Parliament is a mere question of drafting . It is the legislative intent that is material. An Explanation to the Schedule amounts to an Explanation in the Act itself. As we read in Halsbury's Laws of England, Third Edition, Vol. 36, para 551: To simplify the presentation of statutes, it is the practice for their subject matter to be divided, where appropriate, between sections and schedules, the former setting out matters of principle, and introducing the latter, and the latter containing all matters of detail. This is purely a matter of arrangement, and a schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced. The schedule may be used in construing provisions in the body of the Act. It is as much an act of Legislature as the Act itself and it must be read together with the Act for all purposes of construction. Expressions in the Schedule cannot control or prevail against the express enactment and in case of any inconsistency between the schedule and the enactment the enactment is to prevail and if any part of the schedule cannot be made to correspond it must yield to the Act. Lord Sterndale, in Inland Revenue Commr. V. Gittus, (1920) 1 KB 563, said:
It seems to me there are two principles of rules of interpretation which ought to be applied to the combination of Act and Schedule. If the Act says that the Schedule is to be used for a certain purpose and the heading of the part of the Schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the Schedule as though the Schedule were operating for the purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the Schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the Schedule or by the purpose mentioned in the Act for which the Schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the Schedule and the definition of the purpose of the Schedule contained in the Act.
31. The above observation was not disapproved in appeal (1921) 2 AC 81. However, the basic principle is that in case of a conflict between the body of the Act and the Schedule, the former prevails. In the instant case we do not find any such conflict.
In the instant case also, as we have already observed, we do not find such conflict under the scheme of Rules, as observed by the ld.Single Judge and as regards the submission made in respect of the candidates of SC/ST, however, the ld.Single Judge has permitted them on the basis of second proviso to R.28 of the Rules, 1999 but in our considered view the second proviso to R.28 of the Rules, 1999 if read with the pre-amended proviso to sub-rule (3) of R.28 of the Rules, the proviso to sub-rule (1) of R.28 has been saved but after amendment Notification dt.05.07.2010 proviso to sub-rule (3) to R.28 of the Rules mandates that irrespective of the class of candidates including the members of SC/ST have to obtain the minimum benchmark of 40% marks in each of the paper of Phase-I and minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Lower Division Clerk and if for the member of SC/ST the minimum benchmark of 40% marks & minimum 36% marks in each of the paper of Phase-I & Phase-II respectively is relaxed, the express prohibition for the Commission under proviso to sub-rule (3) of R.28 of the Rules, 1999, inserted vide amendment Notification dt.05.07.2010, to secure minimum 40% marks & minimum 36% marks in each of the paper of Phase-I & Phase-II respectively of the competitive examination become otiose and at the same time granting exemption from minimum benchmark to the members of SC/ST candidates may not be in conformity with Art.335 of the Constitution and this can never be the intention of the rule making authority.
As regards submission made by Mr.Sanjeev Prakash Sharma, Senior Counsel in assailing the validity of proviso to R.29 of the Rules, 1999 which has been amended vide Notification dt.05.07.2010, we find outright rejection of the submission and merely they could not qualify with a minimum benchmark of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer, that will not make the provision bad in law or has no nexus with the object sought to be achieved or unworkable and in fact the petitioners are unable to shift their burden and support justification as to how the provision is bad in law.
The submission made by counsel for the petitioners that the rule is unworkable and if allowed to continue, number of posts which are lying vacant for a long time could not be manned and the selection process has been initiated for the post of Stenographer after almost 16 years and the legitimate right of the participants is seriously jeopardized, is wholly without substance and as long as the Rules are framed in consonance with the Constitution, they are valid and the plea of legitimate expectation is of no decisive consequence as well and it fails.
In our considered view, the candidates who failed to qualify with minimum of 40% in each of of the paper of Phase-I for the post of Lower Division Clerk, indeed were not eligible to participate in Phase-II of the competitive examination process and if permitted to participate under interim orders of the ld.Single Judge of this court, no right could be said to be conferred and their ineligibility cannot be condoned and if we permit them to continue merely because they were permitted initially in Phase-II of the competitive examination under interim orders of the ld.Single Judge of this court and later confirmed by the ld.Single Judge under order impugned, in our considered view, such an act cannot be ratified and such appointments which as per the public declaration made by the Commission remain subject to final outcome of the intra-court appeals and any appointment made in contravention of the statutory scheme of Rules, in our considered view, is void in law and such illegality committed cannot be regularized more so when the statutory scheme of Rule in no unmistakable terms say so.
One cannot, therefore, take the sympathetic view in a situation in which the candidates were permitted to participate in Phase-II of the competitive examination who despite expressed provisions under the scheme of Rules failed to qualify with a minimum of 40% marks in each of the papers of Phase-I for the post of Lower Division Clerk. At the same time, this position cannot be ruled out that many other persons who were not permitted to appear in Phase-II of the competitive examination, as they failed to qualify with minimum of 40% marks in each of the paper of Phase-I and failed to approach this court that may, therefore, cause injustice to others as well.
After we have looked into the scheme of Rules and proviso to sub-rule (3) to R.28 which has been amended vide Notification dt.05.07.2010 and paragraphs 4 & 6 of Schedule-II indicating scheme & syllabus of the competitive examination for the post of Lower Division Clerk, irrespective of the fact that he/she is from open category or the reserved category i.e. SC/ST, the inevitable conclusion is that only such of the candidate who obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Lower Division Clerk can only be considered eligible for recommendation by the Commission and for appointment by the State Government obviously subject to their placement in the order of merit against the number of advertised vacancies.
Consequently, the special appeals stand allowed and the judgments passed by the ld.Single Judge dt.02.04.2012, 01.05.2014, 25.07.2014, 03.09.2014, 01.10.2014 & 09.10.2014 in relation to the recruitment process held for the post of Lower Division Clerk, pursuant to the advertisement dt.17.05.2011 are quashed and set aside and the writ petitions assailing validity of proviso to R.29 of Rules, 1999 to the extent that candidate has to secure a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer are without substance and accordingly stand dismissed.
The Commission is directed to prepare a fresh merit list of all the candidates who have participated in the combined competitive examination, 2011 held for the post of Lower Division Clerk, pursuant to advertisement dt.17.05.2011 and the corrigendums issued in furtherance thereto and obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination and upload such fresh merit list on its official website and after taking note of the objections, if any, within seven days thereafter recommend the names of successful candidates to the State Government keeping in view their order of merit, as per the number of advertised vacancies and the State Government is directed to process the same thereafter and give appointments to the selected candidates after due compliance of the requirement of law & the scheme of Rules. The process shall be completed within 90 days. At the same time, State Government is at liberty to cancel the appointments of such of the candidates who failed to qualify with a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II or were not eligible to appear in Phase-II of the competitive examination held for the post of Lower Division Clerk under the scheme of Rules, after due compliance & in accordance with law.
No costs.
(J.K.RANKA),J. (AJAY RASTOGI),J. All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, Sr.P.A