Rajasthan High Court - Jodhpur
Deepak Kumar Chhangani vs State Of Rajasthan on 9 September, 2019
Equivalent citations: AIRONLINE 2019 RAJ 1528
Bench: S. Ravindra Bhat, Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Civil Writ Petition No. 17049/2018
Deepak Kumar Chhangani & ors.
----Petitioners
Versus
State Of Rajasthan & ors.
----Respondents
For Petitioner(s) : Mr.R.S.Saluja
For Respondent(s) : Mr.Rajat Arora for
Mr.K.S.Rajpurohit,AAG
HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reportable Reserved on 03/07/2019 Pronounced on 09/09/2019 Per Hon'ble Chief Justice
1. This writ petition challenges an amendment to Rule 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965, by the second Amendment Rules, 2018 (hereafter "the amendment") with effect from 28.6.2018. The amendment inserted a proviso to Rule 19 by which appointment to the post of Pharmacists has to be through merit in a written examination conducted by the Appointing Authority/Board (depending upon the marks obtained by the candidate) in such written examination. The second challenge is to the establishment of the Staff Selection Board by a notification issued on 29.1.2014. That notification brought into force the Rajasthan Subordinate and Ministerial Service Selection Board (hereafter "the Board") by a separate set of rules, framed under proviso to Article 309 of the Constitution, in 2014. In terms of Rule 8 recruitment to the post of subordinate and ministerial services, notified or specified by the Government has to be made (Downloaded on 11/09/2019 at 08:49:01 PM) (2 of 13) [CW-17049/2018] by the Board. For this purpose, the Board is empowered to conduct examinations and hold interviews and other processes.
2. The facts are that the post of Pharmacist was encadered under the Rajasthan Medical & Health Service Rules, 1965. For some time recruitment was resorted through written examination conducted by the State. This became the subject matter of certain litigation when in Umesh Singhal V/s State & ors. (S.B.Civil Writ Petition No.311/2014 decided on 5.3.2014) the results of the examination were directed to be re-evaluated. The petitioners urge that faulty preparation of such merit list was in deviation of the directions given by the Supreme Court in Rajesh Kumar Daria V/s Rajasthan Public Service Commission & ors. (2007) 8 SCC 785 which resulted in yet another litigation- Satyendra Kumar V/s State & Ors. (S.B.Civil Writ Petition No.6656/2015).
3. The petitioners contend that they obtained qualifications to hold the post of Pharmacist long back. However, there was a change in the rule position in November, 2011 after which a recruitment process was issued for the first time in that year and later in 2013. Now in 2018, when a third time selection process has been undertaken i.e. after a time lag of almost five years, it is the Board was constituted through the Rules of 2014 which is to conduct examinations and hold interviews.
4. The petitioner complains that the Board was no doubt established by virtue of Rule framed under Article 309 of the Constitution of India; however, that cannot over-ride the constitutional mandate of Article 320(3) which provides that in matters of recruitment the State Public Service Commission has to be consulted. It is submitted in this regard that the constitution of the Board through the Rules of 2014 violates the constitutional mandate and even is a blatant attempt to sidestep public appointments to civil posts and services under the state, through a constitutionally mandated procedure. Therefore, the setting up of the Board and conduct of recruitment/selection process for (Downloaded on 11/09/2019 at 08:49:01 PM) (3 of 13) [CW-17049/2018] filling vacancies in public posts, has to be declared unconstitutional.
5. The other ground of challenge by the petitioners is that the introduction of the written examination as the only mode for determining merit in filling-up of the posts of Pharmacist is contrary to Article 14 of the Constitution. It is submitted that the record of the State of Rajasthan has been dismal with regard to the conduct of written examination and repeatedly matters have reached the Courts; in many cases selections were held to be arbitrary. It is submitted more fundamentally that whilst the State is empowered undoubtedly to adopt the choice of recruiting individuals to posts through appropriate selection process, at the same time the aspirations and expectations of those qualified to hold posts and who have been prevented or deprived from participation in past recruitment process because of the State's inaction or fault, too needs to be borne in mind.
6. Elaborating on this aspect it is argued by the learned counsel that the introduction of the written examination as the sole basis for merit determination in the recruitment process, would be harsh and operate adversely to those who had completed their education long back. It is stated in this regard though that a large number of persons had qualified and are holding the relevant educational qualifications for the post of Pharmacist, yet on account of long passage of time and inaction of the State, they cannot not be considered for appointment if it is based on competitive examination. To expect such candidates to perform on par with recently qualified individuals (i.e. those who graduated from institutions only recently) would place them at an unfair disadvantage.
7. It is submitted that though the Pharmacists had obtained the educational qualifications long back, but are now required to compete with candidates who have just graduated or obtained their diploma and degree in pharmacy. This treatment is unreasonable and unfair as both older candidates and younger candidates are not kept on the level playing field. It is therefore (Downloaded on 11/09/2019 at 08:49:01 PM) (4 of 13) [CW-17049/2018] argued that though the introduction of uniform written examination- though on the superficially appears to be consistent and fair, yet it operates harshly against the older candidates who have been out of touch with academics. Therefore, the State ought to have adopted policy of graded weightage for experience, academic qualifications and interview or some other process whereby the aptitude and knowledge in the light of experience, could have been assessed on an overall basis, rather than placing undue or entire emphasis on merit through written examination.
8. The State resisted the writ petition and the submissions made in the counter affidavit inter-alia are as follows:-
"4. That the recruitment to the post of Pharmacist is governed by the Rules namely Rajasthan Medical and Health Subordinate Service Rules, 1965 (hereinafter referred to as the Rules of 1965). As per proviso to Rule 19 of the Rules of 1965 the merit for the post of Pharmacist was to be prepared on the basis of the marks obtained in the written examination and the bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government and the National Health Mission. Subsequently, when the recruitment process of the Pharmacists was initiated in the year 2013 an amendment was introduced in Rule 19 of the Rules of 1965 and it was provided that the merit for the post of Pharmacist was to be prepared on the basis of the marks obtained in qualifying as specified in the Schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, the National Health Mission, Chief Minster BPL Jeevan Care Relief Society, Medi Care Relief Society, Aids Control Society, Institutes under the Cooperative Department or Sahkari Upbhokta Bhandar.
5. That now, the recruitment process is being initiated as per the Advertisement dated 13.08.2018. However, the Rule 19 of the Rules of 1965 has been amended vide notification dated 28.06.2018 and it has been provided that the merit for the post of Pharmacist shall be prepared on the basis of the marks obtained in the written examination and the bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the government, the National Health Mission, Chief Minister BPL Jeeevan Care Relief Society, Medi Care Relief Society, Aids Control Society.
6. That the petitioners are aggrieved with the condition that the merit shall be prepared on the basis of marks obtained in the written examination as per the notification (Downloaded on 11/09/2019 at 08:49:01 PM) (5 of 13) [CW-17049/2018] dated 28.08.2018 and exclusion of the earlier provision for preparing merit on the basis marks obtained in qualifying as specified in the schedule appended. According to the petitioner they are working on the post of Pharmacist under the Cooperative Department or Sahkari Upbhokta Bhandar and has obtained their qualification long back and they are out of touch study for a number of year and in case examination conducted they will hardly be able to compete with the fresh pass out candidate."
9. The state submits that the provision for conducting written examination and preparing merit on the basis of marks obtained in the written examination has rationale and nexus with the object sought to be achieved by the 1965 Rules. The object of conducting written examination is to provide level playing field to all of the candidates and to provide equal opportunity in the public service. Therefore, in order to provide true interpretation and true meaning to the public recruitment, procedure of preparing the merit on basis of marks obtained in qualifying has rightly been excluded from Rule 19 of the Rules of 1965 and there is no un- constitutionality involved.
10. It is submitted that the state has the authority to frame the eligibility criteria for any public or civil post and there is reasonable basis to hold that the provision prescribing the eligibility and adoption of an appropriate mode for judging suitability to a post in question cannot be called as per se invalid, or unconstitutional and cannot be hit by Articles 14 and 16 of the Constitution of India. The petitioners cannot be said to constitute a special class superior than the other candidates, who can legitimately claim that the operation of the rules requiring all eligible candidates' participation in an examination, to adjudge merit. Therefore, the edifice of the writ petition falls to ground. That the petitioners who are working as a pharmacist with the cooperative societies are also excluded from cadre of persons who are granted bonus marks on the basis of length of their service and therefore, the petitioners are illegally demanding that the merit list should be prepared on basis of marks obtained in the qualifying examination and not on the basis of common written examination.
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11. It is further argued that the petitioners' contention of having acquired the qualifications long back and are out of touch of study and hence, looking at this hardships the merit should be prepared on the basis of marks of the qualifying examination, cannot be accepted because if the petitioners are out of touch of study then it is the fault on the part of the petitioners only and the respondents cannot be blamed for the same. It is further submitted that the petitioners want to take undue advantage without any basis.
12. It is further submitted that so far as the argument with respect to setting up of the Board is concerned, the petitioners submission that the Rules of 2014 are unconstitutional is without basis. It is stated in this regard that the provisions of Article 320(3) are recommendatory and on this ground alone the Rules setting up the Board cannot be held unconstitutional.
Analysis & Findings
13. Before considering and analyzing the relevant rival arguments, it would be useful to extract the relevant provisions of the impugned 2018 amendment to the rules and the Rules of 2014, setting up the Board. The relevant amendment carried out by the Rajasthan Medical & Health Subordinate Service (IInd Amendment) Rules, 2018 reads as follows:-
"3. Amendment of rule-19.- The existing first proviso to rule 19 of the said rules, shall be substituted by the following, namely:-
"Provided that in case of appointment to the post of Pharmacist, the written examination shall be conducted by the Appointing Authority/Board and the merit shall be prepared on the basis of marks obtained in such written examination and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, Chief Minister BPL Jerevan Raksha Kosh, National Rural Health Mission, Medicare Relief Society, AIDS Control Society."(Downloaded on 11/09/2019 at 08:49:01 PM)
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14. The relevant extract of the Rajasthan Subordinate and Ministerial Services Selection Board Rules, 2014 reads as follows:-
"2.Definitions.-In these rules, unless the context otherwise requires.-
(a) "Board" means the Rajasthan Subordinate and Ministerial Service Selection Board;
(b) "Chairman" means a Chairman of the Board and includes an acting Chairman appointed by the Government;
(c) "Government" means the Government of Rajasthan;
(d) "Member" means a member of the Board and includes the Chairman thereof; and
(e) "State" means the State of Rajasthan.
****** ***********
8. Functions of the Board.- Notwithstanding anything contained in any rules governing the direct recruitment, the recruitment to the post of subordinate and ministerial services as may be specified by the Government, from time to time, shall be made by the Board. The Board shall among other things, conduct examinations and/or hold interviews, whenever required in the selection process according to the relevant recruitment rules."
15. Article 320 of the Constitution of India reads as under:-
"320. Functions of Public Service Commissions.- (1) It shall be the duty of the Union and the State Public Service Commission to conduct examinations for appointments to the services of the Union and the services of the State respectively.
(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required. (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted--
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions (Downloaded on 11/09/2019 at 08:49:01 PM) (8 of 13) [CW-17049/2018] relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them:
Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. (4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335.
(5) All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid."
16. No one has a right to be appointed to a public office or post. What however, the constitution guarantees is fair and equal opportunity. The state can prescribe relevant criteria and norms to ensure such equal opportunity, while judging suitability of the candidates, on the basis of a competitive process or such process which might incorporate several features or elements such as weightage to academic qualifications, eligible experience, (Downloaded on 11/09/2019 at 08:49:01 PM) (9 of 13) [CW-17049/2018] interview or written test or a combination of some of them. These are essentially matters of policy. While fixing such norms, the state takes into account general considerations, not particular concerns of individual potential candidates. Therefore, the fact that some of such aspirants to public office might have advanced in age, or become rusty in their theoretical knowledge, are not matters that can lead the courts to conclude that overlooking such concerns or not accommodating them, leads to unfairness or arbitrariness of the norms, or the recruitment process. Being essentially executive policy decisions, the court's role is negligible. This aspect was highlighted by a recent Supreme Court judgment in Arunachal Pradesh Public Service Commission & Ors. v Tage Habung & Ors 2013 (7) SCC 737, when after considering previous decisions, it was observed as follows:
"In the case of Inder Parkash Gupta v. State of J&K and Ors. 2004 (6) SCC 786, this Court held as under:
"28. The Jammu & Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979 admittedly were issued Under Section 124 of the Jammu and Kashmir Constitution which is in pari materia with Article 309 of the Constitution of India. The said Rules are statutory in nature. The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated Under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of shortlisting, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of shortlisting, the Commission cannot fix any kind of cut- off marks. (See State of Punjab v. Manjit Singh (2003) 11 SCC 559)."(Downloaded on 11/09/2019 at 08:49:01 PM)
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27. In the case of Union of India and Ors. v. S. Vinodh Kumar and Ors. (2007) 8 SCC 100, the Appellant Railways, while making recruitment for the post of Gangman fixed cut- off marks separately for general category and reserved category candidates (para 3 of the judgment). However, some of the vacancies remained unfilled because the Railways could not get requisite number of candidates within the cut-off marks. The competent authority took a specific decision not to lower the cut-off marks because it was not considered to be conducive to general merit of candidates. The question was whether this decision was arbitrary in view of the fact that some of the vacancies remained unfilled. This Court held as under:
"10. ... The fact that the Railway administration intended to fix the cut-off marks for the purpose of filling up the vacancies in respect of the general category as also reserved category candidates is evident from the fact that different cut-off marks were fixed for different categories of candidates. It is therefore not possible to accept the submission that the cut-off marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cut-off marks is neither denied nor disputed. If the cut-off marks were fixed on a rational basis, no exception thereto can be taken.
11. ... Once it is held that the Appellants had the requisite jurisdiction to fix the cut-off marks, the necessary corollary thereof would be that it could not be directed to lower the same. It is for the employer or the expert body to determine the cut-off marks. The court while exercising its power of judicial review would not ordinarily intermediate therewith. The jurisdiction of the court in this behalf is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut-off marks for different categories of candidates.
28. There cannot be any dispute that the merit of a candidate and his suitability is always Assessed with reference to his performance at the examination. For the purpose of adjudging the merit and suitability of a candidate, the Commission has to fix minimum qualifying marks in the written examination in order to qualify in the viva voce test. It is now well settled that fixing the qualifying marks in the viva voce test after the commencement of the process of selection is not justified but fixing some criteria for qualifying a candidate in the written examination is necessary in order to shortlist the candidates for participating in the interview."
17. For the above reasons, which apply with equal force in this case, it is held that the challenge to the amended Rule 19, (Downloaded on 11/09/2019 at 08:49:01 PM) (11 of 13) [CW-17049/2018] brought into force through the impugned amendments, is insubstantial and meritless.
18. The second issue is whether the framing of the 2014 rules and setting up of a Board for recruitment to a certain class or category of civil posts or services under the state (of Rajasthan) is unconstitutional, as contrary to Article 320 (3) of the Constitution of India. This precise question, as to the imperative nature of Article 320 had arisen in State of U.P. v Manbodhan Lal Srivastava AIR 1957 SC 912, when the Constitution bench of the Supreme Court, ruled that it was not a mandatory condition, holding as follows:
"7. Article 320 does not come under Chapter I headed "Services" of Part XIV. It occurs in Chapter II of that part headed "Public Service Commissions." Articles 320 and 323 lay down the several duties of a Public Service Commission. Article 321 envisages such "additional functions" as may be provided for by Parliament or a State Legislature. Articles 320 and 323 begin with the words "It shall be the duty.................", and then proceed to prescribe the various duties and functions of the Union or a State Public Service Commission, such as to conduct examinations for appointments; to assist in framing and operating schemes of joint recruitment; and of being consulted on all matters relating to methods of recruitment or principles in making appointments to Civil Services and on all disciplinary matters affecting a civil servant. Perhaps, because of the use of the word "shall" in several parts of Art. 320, the High Court was led to assume that the provisions of Art. 320(3)(c) were mandatory, but in our opinion, there are several cogent reasons for holding to the contrary. In the first place, the proviso to Art. 320, itself, contemplates that the President or the Governor, as the case may be, "may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted."
The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the Commission need not be consulted. If the provisions of Art. 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary.
If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in (Downloaded on 11/09/2019 at 08:49:01 PM) (12 of 13) [CW-17049/2018] the terms in which it stands. That does not amount to saying that it is open to the Executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the Executive Government, when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.
8. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it, not by way of a mere formality, but, with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non- compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320(3)(c) could have the effect of nullifying the final order passed by the Government.
9. Thirdly, Art. 320 or the other articles in Chapter II of Part XIV of the Constitution deal with the constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a public servant. Chapter II containing Art. 320 does not, in terms, confer any rights or privileges on an individual public servant nor any constitutional guarantee of the nature contained in Chapter I of that Part, particularly Art. 311. Article 311, therefore, is not, in any way, controlled by the provisions of Chapter II of Part XIV, with particular reference to Art. 320.
10. The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the (Downloaded on 11/09/2019 at 08:49:01 PM) (13 of 13) [CW-17049/2018] requirements of Art. 320(3)(c) ? It does not, either in express terms or by implication, provided that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government. This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Art. 320 is mandatory."
19. In the present case, the functions of the Board are spelt out by Rule 8 of the 2014 Rules, which begins with a non-obstante clause, overriding all other rules. It provides that notwithstanding anything contained in any rules "governing the direct recruitment, the recruitment to the post of subordinate and ministerial services as may be specified by the Government, from time to time, shall be made by the Board." In the opinion of this court, this rule, which has the force of law, overrides all other rules in regard to matters provided for by it; furthermore, this provides the exclusion of the sort contemplated by proviso to Article 320 (3) of the Constitution of India. As a consequence, it is held that the second challenge of the petitioners, i.e. legality and constitutionality of the 2014 Rules, has no merit; that too is rejected.
20. In view of the foregoing analysis and conclusions, this court is of the view that the writ petition has to fail; it is accordingly dismissed. All pending applications too are disposed of.
(DR. PUSHPENDRA SINGH BHATI),J (S. RAVINDRA BHAT),CJ Parmar/Ashutosh (Downloaded on 11/09/2019 at 08:49:01 PM) Powered by TCPDF (www.tcpdf.org)