Rajasthan High Court - Jaipur
Man Singh Malawat And Ors vs State (Personnel Department)Ors on 17 December, 2013
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
O R D E R
(1) D.B. CIVIL WRIT PETITION NO.859/2012
ABHAYKANT SHARMA & ORS. Vs. STATE OF RAJASTHAN & ORS.
(2) D.B. CIVIL WRIT PETITION NO.5166/2012
BHANWAR SINGH & ANR. Vs. THE STATE OF RAJASTHAN & ORS.
(3) D.B. CIVIL WRIT PETITION NO.8026/2012
RAVINDRA KUMAR SAINI VS. STATE OF RAJASTHAN & ANR.
(4) D.B. CIVIL WRIT PETITION NO.8099/2012
LAXMAN KUMAR Vs. STATE OF RAJASTHAN & ANR.
&
(5) D.B. CIVIL WRIT PETITION NO.11122/2012
HEMANT KUMAR SANWARIA & ORS. Vs. STATE OF RAJASTHAN & ORS.
(6) D.B. CIVIL WRIT PETITION NO.16077/2012
SURENDRA KUMAR MAHROTHA & ORS. Vs. THE STATE OF RAJASTHAN & ORS.
&
(7) D.B. CIVIL WRIT PETITION NO.18554/2013
MAN SINGH MALAWAT & ORS. Vs. STATE OF RAJASTHAN & ANR.
DATE:17.12.2013
HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Mr. Suresh Pareek, Senior Counsel assisted by
Mr. Shankar Lal Sharma,
Mr. Vijay Pathak,
Mr. O.P. Mishra,
Mr. T.C. Sharma and
Mr. Banwari Sharma, for the petitioners.
Ms. Raj Sharma, Additional Government Counsel for the respondent-State.
Mr. Amit Kuri, for the respondent-RPSC.
Mr. Umesh Vyas, for the respondent Nos.4 and 5.
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BY THE COURT (PER HON'BLE THE CHIEF JUSTICE):
Heard Mr. Suresh Pareek, Senior Counsel assisted by Mr. Shankar Lal Sharma, Mr. Vijay Pathak, Mr. O.P. Mishra, Mr. T.C. Sharma and Mr. Banwari Sharma, the learned counsel for the petitioner, Ms. Raj Sharma, the learned Additional Government Counsel for the State, Mr. Amit Kuri, the learned counsel for the respondent-Rajasthan Public Service Commission (for short, hereafter referred to as 'the Commission') and Mr. Umesh Vyas, the learned counsel for the respondent Nos.4 and 5.
The challenge laid in the instant petitions is inter alia against the Notification dated 05.07.2010, whereby according to the petitioners, the Rajasthan State Certificate in Information Technology (RS-CIT), a basic computer education course conducted by the Rajasthan Knowledge Corporation Limited (RKCL), recognized by the Government of Rajasthan under the Department of Information Technology & Communication, though had been assured by it(State Government) to be acknowledged essential condition of eligibility, was not incorporated in the Rajasthan Subordinate Offices Ministerial Service Rules, 1999 (for short, hereafter referred to as 'the Rules') . A writ of mandamus, therefore, has been sought for to direct the respondents to recognize the qualification of certificate of RS-CIT, granted by the RKCL to the petitioners for the post of Stenographers.
As the pleaded facts would reveal, a process for filling up various posts of stenographers was initiated by advertisement dated 06.09.2011 by the respondent-Commission, in which, amongst others, academic condition of eligibility, as prescribed by the Rules, as amended in the year 2010 and also the scheme of the examination, as contemplated therein, was set out. As individual facts having regard to the nature of the challenge laid, 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 Rule 6 of the Rules outlines the method of recruitment to the various posts. As detailed in Schedule-III thereto, vis-a-vis the post of stenographer, it is provided that the same would be filled up 100% by competitive examination through the Commission in accordance with the scheme and syllabus, prescribed in Schedule-III. Schedule-III to the Rules, provides the details of the scheme of examination, which is reproduced hereunder:-
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, Everyday Science and General Knowledge of Rajasthan 2- General Hindi and English 3 Hours 3 Hours 100 100 Phase-II 1- English Shorthand (the test shall consist of dictation of 100 words per minute) Transcription and typing of dictated passage in English on Computer.
2- Hindi Shorthand (the test shall consist of dictation of 80 words per minute Transcription and typing of dictated passage in Hindi on Computer 10 Minutes 60 Minutes 10 Minutes 70 Minutes 50 50 It would be significant to note that prior to above format of scheme of examination, as extracted hereinabove, the scheme was in following terms:-
SCHEME OF EXAMINATION- The Competitive Examination shall include the following papers and each paper shall carry the number of marks as shown against it.
PAPER Compulsory:
DURATION OF EXAMINATION MARKS
1. General Knowledge, Everyday Science and General Knowledge of Rajasthan.
2. Languages:
General Hindi and English 3 Hours 3 Hours 100 100 Optional: The Candidate shall offer any one of the following papers:-
Paper English Shorthand Test (The test shall consists of dictation of 100 words per minute) Transcription and typing of dictated passage in English OR Hindi Shorthand Test (The test shall consists of dictation of 100 words per minutes) Transcription and typing of dictated passage in Hindi 10 Minutes 60 Minutes 10 Minutes 70 Minutes 100 100 It would, thus, be evident that whereas previously in the Phase-II of the selection process/examination, candidates qualified in Phase-I were required to take either English Shorthand Test or Hindi Shorthand Test, as per the scheme sought to be applied on amendment of the Rules, to the recruitment process initiated by advertisement dated 06.09.2011, they were obligated to appear both, in English Shorthand Test as well as Hindi Shorthand Test. According to the petitioners, this prescription of the Rules, as reflected in the advertisement, making it imperative for a candidate to appear both, in English Shorthand Test and Hindi Shorthand Test, is wholly arbitrary and unwarranted, more particularly, in view of the recommendations of the respondent-Commission to make it optional. Further, as most of the vacancies, now sought to be filled up, had occurred prior to the amendment in the Rules of 2010, this enjoinment, by no means, could be imposed to the detriment of those, who were qualified to compete therefor on the basis of such of the Rules, as existed earlier. This is as well, in view of the fact that there is nothing on record to suggest any justification for the departure of the State Government in making the passing of English Shorthand Test and Hindi Shorthand Test, a peremptory condition, to qualify or to be adjudged suitable for the recruitment to the post of stenographer.
The plea of legitimate expectation has also been taken, contending that in any view of the matter, as the respondent-State had not undertaken any recruitment process for the last 16 years and the candidates were waiting in expectation to participate in the process on the basis of the unamended rules, their right to be treated fairly, could not have been denied in the manner done.
The State-respondent, while endorsing the validity of the Rules, as notified by notification dated 05.07.2010, referred to hereinabove, in reply to ground (K), averred as hereunder:-
That the contents of para K of the writ petition are denied. The Government of Rajasthan has made the languages Hindi and English as compulsory languages and amendment has been made to this effect in the rules. The IAS, RAS and RSS officers perform their work both, in Hindi and English languages.
In other words, according to the answering respondents, Hindi and English, both had been made compulsory languages and consequently, amendment to that effect had been made in the Rules including scheme of the examination for the post of stenographer. They have sought, amongst others, to justify this norm referring to the service requirements of the IAS, RAS and Rajasthan State Service officers, which demanded execution of works, both in Hindi and English languages. That as the advertisement had been issued after 14 months of the impugned amendment and the petitioners having participated in the process, they are estopped from questioning the validity thereof, has also been mentioned.
Mr. Pareek has emphatically argued that the impugned amendment is, per se, invalid as it has the potential of violating the fundamental rights of the petitioners and other similarly situated candidates of equal opportunity of seeking employment in public office. Apart from contending that omission to include the certificate of the RS-CIT as a condition of eligibility, though promised to be acknowledged by the State Government, per se, vitiates the amendment to the Rules, the learned counsel has reiterated that the Commission having recommended that a pass in Shorthand Test in English/Hindi ought to be optional, in absence of any materials on record to the contrary, the insistence for such test in both the disciplines, is patently illegal, arbitrary and unreasonable. While reiterating that as most of the posts are relatable to the period prior to the impugned amendment and thus, the process of recruitment thereof ought to be governed by the unamended rules, Mr. Pareek has insisted that if the ongoing selection process is allowed to proceed, it would be a travesty of justice. Further, it would be denial of legitimate expectation of the petitioners.
In support of his arguments, Mr. Pareek has placed reliance on the decisions of the Apex Court in Arjun Singh Rathore And Others Vs. B.N. Chaturvedi And Others, (2007) 11 SCC 605, Kalabharati Advertising Vs. Hemant Vimalnath Narichania And Others, (2010) 9 SCC 437, P. Mohanan Pillai Vs. State of Kerala And Others, (2007) 9 SCC 497 and Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector & ETIO And Others, (2007) 5 SCC 447.
Per contra, Ms. Raj Sharma has abided by the pleaded stand of the respondent-State to contend that challenge to the validity of the amendment as well as selection process, is wholly misconceived and thus, the petitions are liable to be rejected in limine. As the requirement of proficiency, in shorthand and expertise both in English and Hindi, is the demand of the official exigencies as on date, the initiative to make it optional would be at the cost of efficiency of the administration and quality of service and thus against the public interest. She has, thus, submitted that on this touchstone alone, the challenge ought to fail. A reference to the decision of the Apex Court in Shanker Raju Vs. Union of India, (2011) 2 SCC 132, to underline that a Court ought to give full effect to the legislative intent, as discernible in the statute, has been made.
Mr. Kuri, the learned counsel for the respondent-Commission has submitted that the selection process, in progress, is being conducted by it (Commission) in terms of the Rules.
We have considered, to the extent necessary, the pleadings and the documents on record. We have also examined the rival submissions.
A bare perusal of the Notification No.F.5/312/DOIT/Tech/07, dated 17.11.2008, of the Principal Secretary, Department of Information Technology and Communication, Government of Rajasthan, would demonstrate that thereby the State Government had recognized the course of RS-CIT, conducted by the Rajasthan Knowledge Corporation Limited (RKCL), to be a basic computer education course. Noticeably, this certificate course though was incorporated in Schedule-I by the impugned amendment for the post of Lower Division Clerks/Telephone Operator, it was not included as one of the optional qualifications as a proof of proficiency in information technology for the post of stenographer.
Be that as it may, even in absence of the said certificate course, as would be apparent from the other norms to this effect for the post of stenographer, the following course/certificate had been prescribed:-
B. O or Higher Level Certificate Course conducted by DOEACC under control of the Department of Electronics, Government of India.
Or Computer Operator & Programming Assistant (COPA)/ Data Preparation and Computer Software (DPCS) Certificate organised under National/State Council of Vocational Training Scheme.
Or Diploma in Computer Science/Computer Applications from a University established by law in India or from an institution recognised by the Government.
Or Deploma in Computer Science & Engineering from a polytechnic institution recognised by the Government.
Apart from the fact that the notification dated 17.11.2008 recognizing the RS-CIT, to be a basic computer education course, conducted by the RKCL, by no means, can be construed to effect an amendment to the Rules, we are of the unhesitant opinion that omission to set out the same as one of the optional courses or certificates, as a proof of proficiency in information technology, in the face of other such certificate/course, ipso facto, would not render the impugned amendment invalid. The plea to this effect, thus, does not weigh with us.
The respondent-Commission vide letter dated 16.09.1999, Annexure-5 to the Writ Petition No.859/2012, noticeably had recommended that English Shorthand Test/Hindi Shorthand Test, ought to be optional for the candidates concerned. This, to reiterate, accord with the scheme set out in Schedule-III to the Rules before its amendment. Phase-I of the scheme, however, mandates written examinations in General Knowledge, Everyday Science and General Knowledge of Rajasthan as well as in General Hindi and English, the duration thereof being of 3 hours with 100 marks each. As adverted to hereinabove, the State-respondent, responding to the plea of the petitioners that in face of the recommendations of the respondent-Commission that the shorthand test ought to be either in Hindi or English, did cite the exigencies of work for the offices of the IAS, RAS and the Rajasthan State Service, as a justification, to insist for such decision, to hold shorthand tests both in English and Hindi languages, qua the same candidates. Admittedly, no rejoinder has been filed by the petitioners to this averment of the State-respondent.
It is a common experience vis-a-vis the nature and the variety of works, to be performed by the stenographers in a public office that they need to be adequately proficient not only in handling IT devices to cater to the ever changing and demanding essentialities of work, their knowledge of Hindi and English together, is also an inalienable tool for efficiency and effectiveness. It is significant to note, at this stage, that in compliance of the order dated 26.09.2011 passed by this Court in S.B. Civil Writ Petition No.13682/2011- Jugnu Sharma & Others Vs. State of Rajasthan, the representations submitted on the same issue, had been answered on 20.10.2011 by the Principal Secretary, Department of Personnel (Ka-2), Government of Rajasthan, wherein it had been recorded that though vis-a-vis the post of LDC, the certificate issued by the RKCL had been construed to be relevant and thus, recognized, it was not so done for the post of stenographer as the job relatable to these two posts, were distinctly different. It was mentioned as well that whereas the LDC was required to perform typing works, the stenographer was essentially to work on a computer and that for this, computer education vis-a-vis such categories of candidates, had been insisted upon. More importantly, it was recorded that in the State service in the current times, application of both, English and Hindi by a stenographer and his/her knowledge thereof, was extremely essential and it had, thus, been felt and acknowledged that a candidate ought to be proficient in both the languages for executing his/her works as a stenographer and that it was more so, in view of the increased application and utility of the computer technology in the execution of the officials works on day-to-day basis.
On a cumulative consideration of the recorded stand of the State-respondent, as above, and in the face of the ground realities, we are of the view that instant is not a case where insistence for the English Shorthand Test and Hindi Shorthand Test for a candidate under the scheme of examination to qualify for the post of stenographer governed by the Rules, can be repudiated to be irrelevant or in contravention of the legal or constitutional rights of a candidate as the petitioners.
Vis-a-vis the plea of application of unamended rules to the post that had fallen vacant prior to the amendment, we construe it sufficient to refer to the observation of the Hon'ble Apex Court in P. Mohanan Pillai (supra), wherein their Lordships had propounded that ordinarily rules which were prevailing at the time, when the vacancies arose, ought to be adhered to and the eligibility criteria as well as the procedure prevailing on the date of vacancy should be ordinarily followed but for good and sufficient reasons, departure therefrom is permissible.
Mr. Pareek has emphatically urged that though this is a correct proposition of law, in absence of any reason whatsoever, the impugned amendment requiring a pass in English Shorthand Test and Hindi Shorthand Test, is void ab initio.
We find ourselves in respectful disagreement with this plea taken on behalf of the petitioners. The challenge to the amendment of the Rules on this ground, therefore, does not commend for acceptance. It is no longer res integra that legitimate expectation, per se, does not vest a person with an unassailable legal right. It is only a facet of the principles of natural justice, which makes it imperative on the part of the authorities concerned to act fairly vis-a-vis the person entertaining the perception of expectation to be treated fairly. If the Rules, as framed under Article 309 of the Constitution of India, as in the instant case, mandate a particular norm of eligibility and/or outlines a scheme to evaluate and assess the suitability of a candidate for appointment to a public office, in our view, the same having been held to be valid, the plea of legitimate expectation is not of any decisive consequence. It thus fails as well.
On a totality of the consideration, as set out hereinabove, we find no merit in the petitions.
As a result, all the petitions fail and are, hereby, rejected. The stay applications also stand dismissed.
A copy of this order be placed in all connected files.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J.
/KKC/
Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR P.A