Rajasthan High Court - Jodhpur
Surendra Singh vs Raj. Public Service Commission on 13 December, 2023
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2023:RJ-JD:42912]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4296/2021
Surendra Singh S/o Sh. Arjun Singh, Aged About 37 Years, R/o
Vpo Rooppura, Kuchaman City, Nagaur, Rajasthan.
----Petitioner
Versus
1. Raj. Public Service Commission, Through Its Chairman,
Ajmer, Rajasthan.
2. Secretary, Rajasthan Public Service Commission, Ajmer,
Rajasthan.
3. State Of Rajasthan, Through Its Principal Secretary,
Department Of Personnel, Government Of Rajasthan,
Jaipur (Raj.)
4. Dinesh Kumar Yadav S/o Rampal Yadav, Aged About 36
Years, Village Berawash Khurd, Po Joriya, Tehsil Kotkasim,
District Alwar, Rajasthan - 301702.
5. Prahalad Singh Shekhawat S/o Sh Kalyan Singh
Shekhawat R/o Plot No 65-A, Shekhawati Nagar-A,
Govindpura, Kalwad Road, Jaipur, Rajasthan.
6. Akanksha Kumari D/o Sh Banshi Dhar Choudhary W/o
Sh. Amit Sahu R/o 277-78, Hanuman Nagar Extension,
Jaipur. Rajasthan Police Academy Jaipur (Raj.)
----Respondents
For Petitioner(s) : Mr. Gajender Singh Rathore.
For Respondent(s) : Mr. Sandeep Shah, AAG-cum-Sr.
Advocate, assisted by
Mr. Nishant Bafna.
Mr. Rajesh Panwar, Sr. Advocate,
assisted by Mr. Prashant Panwar.
Mr. Vinay Soni.
Mr. Anish Bhadala.
Mr. Tarun Joshi through VC.
Mr. Vigyan Shah, through VC.
Mr. Nikhil Dungawat.
Mr. Gulab Singh.
Mr. Vikram Singh.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order (Downloaded on 13/12/2023 at 08:46:16 PM) [2023:RJ-JD:42912] (2 of 13) [CW-4296/2021] 13/12/2023 By way of filing the present writ petition, the petitioner has prayed for the following reliefs:
"A. By an appropriate writ order or direction, the respondents may kindly be directed to consider the candidature of the petitioner in Ex- Servicemen category pursuant to the selection process vide advertisement dated
2.4.2018 and afford appointment to the petitioner as per his merit in Ex- servicemen category and as per the law.
B. By an appropriate writ order or direction, may kindly quash and set aside any order passed by the respondent or any revision of merit list by which the candidature of the petitioner denied in ex-servicemen category.
C. Any other appropriate writ, order or direction, may kindly be passed in favor of the petitioner. D. Writ petition filed by the petitioner may kindly be allowed with costs."
Learned Counsel for the petitioner submitted that the petitioner while being in the service of Indian Air Force, participated in the Rajasthan State and Subordinate Services Combined Competitive Examination 2016 (hereinafter referred to as 'RAS Exam 2016' for short) in pursuance to the advertisement dated 24.04.2016 issued by Rajasthan Public Service Commission (RPSC). Prior to appearing for the document verification / interview in the selection process initiated vide advertisement dated 24.04.2016, the petitioner obtained an NOC dated 16.08.2017 (Annex. 2) from the competent authority of Indian Air Force and after clearing all the stages of examination i.e. Preliminary, Mains Examinations and Interview, he secured his position in the final merit list dated 17.10.2017 (Annex. 3) issued by the RPSC. Based on the merit secured by (Downloaded on 13/12/2023 at 08:46:16 PM) [2023:RJ-JD:42912] (3 of 13) [CW-4296/2021] the petitioner in the RAS Exam 2016, he was allotted Rajasthan Accounts Service (RAcS) and consequently the appointment order dated 30.06.2019 (Annex. 5) was issued in favour of the petitioner by the Competent Authority of the Department of Finance, Rajasthan, Jaipur.
Learned Counsel for the petitioner further submitted that during the pendency of the selection process initiated by RPSC for RAS Exam 2016, another advertisement dated 02.04.2018 (Annex. 6) for Rajasthan State and Subordinate Services Combined Competitive Examination 2018 (hereinafter referred to as 'RAS Exam 2018' for short) came to be issued by the RPSC. It was urged that the advertisement dated 02.04.2018 (Annex. 6) was issued by RPSC only after publication of the final merit list, dated 17.10.2017 (Annex.3) but prior to the issuance of final appointment order dated 30.06.2019 (Annex. 5) made in favour of the petitioner pertaining to selection process for RAS Exam 2016.
Learned counsel for the petitioner submitted that the petitioner being eligible and entitled for appointment against the advertised posts for RAS Exam 2018, applied for the same. It was further urged that while the recruitment process for RAS Exam 2018 was in progress, a notification dated 17.04.2018 (Annex. 7) came to be issued by the Department of Personnel, Rajasthan Jaipur whereby certain amendments were made in the Rajasthan Civil Services (Absorption of Ex- Servicemen) Rules, 1988 (hereinafter referred to as 'Rules of (Downloaded on 13/12/2023 at 08:46:16 PM) [2023:RJ-JD:42912] (4 of 13) [CW-4296/2021] 1988'). As per the notification dated 17.04.2018 (Annex. 7), the existing Rule 2 of the Rules of 1988, governing appointment and reservation to the Ex- Servicemen in various services under state, got substituted by a new Rule 2, whereby 5% of the posts in state services were kept reserved for the Ex- Servicemen Category. In other words, Ex- Service personnel were provided reservation against 5% of the posts in state services. After issuance of notification dated 17.04.2018 (Annex.7), a corrigendum dated 22.05.2018 (Annex.8) to the advertisement pertaining to RAS Exam 2018, came to be issued by RPSC whereby 5% posts in state services were kept reserved for the Ex-Servicemen. The last date for submission of application forms for RAS Exam 2018 was 31.05.2018.
The petitioner after issuance of corrigendum dated 22.05.2018 to the advertisement dated 02.04.2018, for RAS Exam 2018, submitted his application form under Ex- Servicemen Category. The petitioner thereafter participated in all the stages of examination and secured high merit position in the result of Mains RAS Exam 2018 declared on 09.07.2020 (Annex.
9) and was called for interview.
Learned Counsel submitted that since the petitioner secured outstanding marks, he was having very good chances of selection against a post of Rajasthan Administrative Services (RAS) in the Ex- Servicemen Category. However, petitioner was shocked and surprised to see that when the process of document verification for the Ex- Servicemen candidates started with effect from (Downloaded on 13/12/2023 at 08:46:16 PM) [2023:RJ-JD:42912] (5 of 13) [CW-4296/2021] 07.12.2020, he was not called for the same. Though no reason whatsoever for not calling the petitioner for document verification against the post reserved for Ex- Servicemen under state services was accorded to him, yet the petitioner came to know that his candidature had been considered as a general category candidate only for the reason that in order to be eligible, for claiming benefit of reservation against the Ex- Servicemen Quota of State services, he was required to have retired from service on or before 31.05.2019. The petitioner had retired from the Indian Air Force services only on 31.07.2019, which is not within one year of filing of the application form, as mandated by the Rule 6B of the Rules of 1988 amended vide notification dated 17.04.2018. The Rule 6B of Rules of 1988 amended vide notification dated 17.04.2018 reads as under:-
"6B. Submission of proof of Retirement.- A person who has retired or is retiring within forthcoming one year, after earning his/her pension on the basis of no-objection certificate (NOC ) from the competent authority, shall be eligible to apply for the post but he/she shall have to submit proof of retirement to the appropriate selection agency,-
(a) before appearing in the main examination, where selection is made through two stages of written examination and interview;
(b) before appearing in examination where selection is made through written examination and interview;
(c) before appearing in written examination or interview where selection is made through only written examination or only interview, as the case may be."
Learned counsel for the petitioner submitted that the action of the respondents in declaring petitioner ineligible for being considered against the seat reserved for the Ex- Service (Downloaded on 13/12/2023 at 08:46:16 PM) [2023:RJ-JD:42912] (6 of 13) [CW-4296/2021] Personnel in state services pursuant to the recruitment process for RAS Exam 2018, is ex- facie illegal, arbitrary and unjust. To buttress the said contention, learned counsel for the petitioner submitted that prior to declaration of the final merit list pertaining to the RAS Exam 2018, another notification dated 22.12.2020 (Annex. 13) came to be issued by the Department of Personnel whereby the existing Rule 6B of Rules of 1988 was further amended in the following terms:-
"6B. Submission of proof of Retirement- A person who has retired after earning his or her pension or is retiring within forthcoming one year but has obtained no-objection certificate (NOC) from the competent authority, shall be eligible to apply for the post but shall have to submit proof of retirement to the appropriate Appointing Authority before joining. If an ex-serviceman applies on the basis on NOC and get selected before actual retirement, the appointing authority may relax the joining period and he shall be allowed to join the post within a period of two months of his retirement."
Learned counsel vehemently submitted that since the Rule 6B inserted in the Rules of 1988 vide notification dated 17.04.2018 (Annex.7) was substituted by Rule 6B vide notification dated 22.12.2020 (Annex. 13), it would mean that by introducing substituted Rule 6B, the defect which occurred at the time of insertion of the Rule 6B in the Rules of 1988 has been cured by the respondents and therefore the same shall apply with retrospective effect bringing the case of the petitioner to be (Downloaded on 13/12/2023 at 08:46:17 PM) [2023:RJ-JD:42912] (7 of 13) [CW-4296/2021] considered in terms of the substituted Rule 6B, from the date it was so first inserted i.e. 17.04.2018.
Learned counsel for the petitioner urged that after the issuance of the notification dated 17.04.2018, a circular dated 05.08.2020 was issued by the State Government clarifying that the bar of retiring within one year to avail the benefit of ex- serviceman category under Rule 6B of the Rules of 1988 as provided in notification dated 17.04.2018, shall not apply in the cases where the selection process has been delayed and taken more than one year's time and thus, the incumbent like petitioner who has already retired before the date of document verification or final result, whichever is later, may be given the benefit of ex-serviceman category.
Learned counsel for the petitioner thus pleaded reliance on the judgment passed by the Hon'ble Supreme Court in the case of Ramdeen Maurya (DR.) Vs. State of Uttar Pradesh and Others reported in (2009) 6 SCC 735; Dolly Chhanda Vs. Chairman, JEE and Others reported in (2005) 9 SCC 779; Government of India and others Vs. Indian Tobacco Association reported in AIR 2005 SCC 3685 and Lanco Anpara Power Ltd. Vs. State of U.P. reported in (2016) 10 SCC 329, and the judgment passed by a coordinate Bench of this Court in the case of Rakesh Kumar Swami & Ors. Vs. RPSC & Ors. (S.B. Civil Writ Petition No.7393/2020).
Per contra, learned counsel for the respondents vehemently submitted that the action of the respondent-RPSC in denying (Downloaded on 13/12/2023 at 08:46:17 PM) [2023:RJ-JD:42912] (8 of 13) [CW-4296/2021] consideration of the candidature of the petitioner in Ex- Servicemen category pursuant to the selection process initiated vide advertisement dated 02.04.2018 for RAS Exam 2018 is absolutely perfect, just and legal therefore, the same deserves to be upheld.
Learned counsel submitted that as per Air Force Order No. AFO33/2017 dated 08.12.2017 (Annex.R-4/3) which deals with the condition of granting NOC, to apply against Group "A" Posts in Central and State Government under clause-14, the NOCs for Category - I Posts are issued on submission of a covering letter as specified in Appendix- E, which further makes it clear that the NOC would be in reference to the particular advertisement and the post only. The Air Force Order No.33/2017, came into existence prior to the issuance of the advertisement dated 02.04.2018 for RAS Exam 2018. Learned counsel submitted that the document (NOC) (Annex.2) annexed in the present writ petition by the petitioner makes it clear that the petitioner has not been issued any NOC by the competent authority of the Indian Air Force for RAS Exam 2018. The NOC as a matter of fact, was issued for RAS Exam 2016 and thus, the petitioner for claiming benefit of the reservation under the Ex- Service Personnel Category, was required to obtain a fresh NOC for appearing in the RAS Exam 2018.
Learned counsel submitted that the present petitioner is not eligible to be considered under the Ex- Servicemen Category in the RAS Exam 2018 as he had appeared in RAS Exam 2018 (Downloaded on 13/12/2023 at 08:46:17 PM) [2023:RJ-JD:42912] (9 of 13) [CW-4296/2021] initiated vide advertisement dated 02.04.2018 without obtaining NOC from the competent authority of the Indian Air Force. It was thus prayed that the present petition deserves to be dismissed solely on this ground.
In arguendo, however, learned counsel for the respondents further submitted that the substituted Rule 6B vide notification dated 22.12.2020 also lays emphasis on No Objection Certificate (NOC) and provides that a person who has retired after earning his or her pension or is retiring within forthcoming one year but has obtained No Objection Certificate (NOC) from the competent authority shall be eligible to apply for the post but has to submit proof of retirement to the appropriate apportioning authority before joining, however, since in the present case, the petitioner retired much after one year from the date of the advertisement and also failed to obtain fresh NOC for applying in the Ex- Servicemen category pursuant to the RAS Exam, 2018 process, the ineligibility accorded to him is valid and justified.
Learned counsel for the respondents have pleaded reliance on the following judgments of Hon'ble Rajasthan High Court in the case of Ramesh Kumar Goyal and Anr. v. M/s Supreme Motors and Ors. (SBCWP No. 7716/2010); as well as the judgment of the Hon'ble Supreme Court rendered in the cases of Rajasthan Public Service Commission, Ajmer and Anr. v. Shikun Ram Firauda and Anr. Reported in AIR Online 2019 SC 2021 and G.J. Raja v. Tejraj Surana reported in (2019) 19 SCC 469.
(Downloaded on 13/12/2023 at 08:46:17 PM) [2023:RJ-JD:42912] (10 of 13) [CW-4296/2021] Heard learned counsel for the parties at bar and perused the material available on record.
Indisputably, the petitioner is an ex-service personnel. The petitioner after obtaining NOC from the Indian Air Force participated in the selection process initiated by the RPSC for RAS Exam, 2016. The petitioner is presently holding a post in Rajasthan Accounts Services based on the merit he secured in RAS Exam, 2016.
This Court finds that while the RAS Exam, 2016 was underway, another advertisement dated 02.04.2018 came to be issued by the RPSC for RAS Exam, 2018. The respondent- state by issuing notification dated 17.04.2018 for the first time provided 5 per cent reservation in favour of candidates belonging to Ex-Servicemen Category in the State service. Rule 6-B inserted in the Rules of 1998 vide notification dated 17.04.2018 regarding submission of proof of retirement from armed forces mandated that a person who has retired or is retiring within forthcoming one year after earning his/her pension on the basis of no objection certificate (NOC) from the competent authority shall be eligible to apply for the post but the proof regarding the retirement has to be submitted before the appropriate selection agency before the main exam, where selection is made through two stages of written examination and interview.
After coming into force, the notification dated 17.04.2018 inserting Rule 6-B in the Rules of 1988, the respondent- RPSC issued a corrigendum dated 22.05.2018 to the original (Downloaded on 13/12/2023 at 08:46:17 PM) [2023:RJ-JD:42912] (11 of 13) [CW-4296/2021] advertisement dated 02.04.2018, wherein the ex-servicemen were provided reservation in the tune of 5 per cent in the state service. The last date of filing the application was extended up to 31.05.2018.
The facts mentioned above makes it clear that on the last date of submitting application form, pursuant to the advertisement inviting application from eligible candidates for participating in the RAS Exam, 2018, the Rule 6-B of the Rules of 1988 introduced vide notification dated 17.04.2018 was in vogue which provided that in order to become eligible to claim reservation against 5 per cent posts kept reserved for ex-service personnel in state services, a candidate will be required to submit proof regarding retirement before the appropriate selection agency before the main examination, where selection process is made through two stages of written examination and interview.
It is a settled law that the eligibility for recruitment to the post shall be governed by the existing Rules or government orders and the amendment in the Rules if any, unless it is expressly or by necessary implications made to have retrospective effect shall always be construed to be prospective in nature.
A plain reading of the notification dated 22.12.2020, issued by the respondent department substituting Rule-6B does not indicate that it has been given retrospective effect. Hon'ble the Supreme Court of India, in the case of P. Mahendran and Ors. v State of Karanataka and Ors: AIR 1990 SC 405 has held:
"....every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have a retrospective effect. Unless, there are words in the statute or in the (Downloaded on 13/12/2023 at 08:46:17 PM) [2023:RJ-JD:42912] (12 of 13) [CW-4296/2021] Rules showing the intention to affect the existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only...."
This Court thus does not find any force in the argument of learned counsel for the petitioner that since the Rule-6B inserted in the Rule of 1988 vide notification dated 17.04.2018 was substituted by Rule-6B through notification dated 22.12.2020 that would mean that the defect which occurred initially has been cured and therefore, the same shall apply with retrospective effect. This is for the reason that notification dated 22.12.2020 does not take away any existing right of the ex-service personnel rather it confers new right to the ex-service personnel retiring within next year for the first time. The decision of the respondents to reject the candidature of the petitioner under the ex-servicemen category thus, cannot be faulted with.
It is also to be noted here that even in accordance with substituted Rule-6B of the Rules of 1988, a person who is retiring within forthcoming one year shall be eligible to apply for the post based on the NOC from the competent authority. However, in the present case the last date of submission of application form for RAS examination was 31.05.2018, whereas, the petitioner retired on 31.07.2019 i.e. beyond one year as required under the substituted Rule 6-B of Rules of 1988.
As far as, argument with regard to applicability of the circular dated 05.08.2020, issued by respondent DOP is concerned suffice is to note that the same has been issued in (Downloaded on 13/12/2023 at 08:46:17 PM) [2023:RJ-JD:42912] (13 of 13) [CW-4296/2021] respect to particular selection i.e. Senior Teacher Competitive examination 2018. Thus the same is having no application in the present case. Even other wise in the considered opinion of this Court a clarification issued by the DOP can not supersede the effect of notifications dated 17.04.2018 and 22.12.2020 and the recruiting agency i.e. RPSC can deviate from the mandate of the rules while making recommendations for the advertised post. The argument raised by the learned counsel for the petitioner therefore deserves to be rejected and therefore, rejected being devoid of any merit whatsoever.
The judgments relied upon by the learned counsel for the petitioner are not applicable in the present case as the same can be differentiated on the basis of facts. In view of the aforesaid discussion, the petitioner cannot claim consideration of his candidature in the ex-servicemen category against 5 per cent seats reserved in the state service. The decision of respondents in denying consideration to the candidature of the petitioner in ex-servicemen category for RAS examination, 2018 does not call for any interference by this Court.
The writ petition therefore lacks merit and is dismissed as such. Stay application also stands dismissed.
No order as to costs.
(KULDEEP MATHUR),J 45-Abhishek/-
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