Rajasthan High Court - Jaipur
Kavindra Son Of Shri Jagdish Prasad vs Rajasthan Public Service Commission on 8 March, 2022
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5895/2020
1. Kavindra Son Of Shri Jagdish Prasad, Aged About 24
Years, Presently Resident Of Plot No. 79, Kirti Sagar,
Badarwas, Gopalpura By Pass Road, Jaipur.
2. Bhagchand Chhaba Son Of Shri Nand Lal, Aged About 25
Years, Resident Of Jato Ka Mohalla, Village Sinodiya, Post
Gagradu, Tehsil Dudu, District Jaipur.
3. Hanuman Ram Goliya Son Of Shri Dhagla Ram Goliya,
Aged About 28 Years, Resident Of Village And Post
Khakharki, Tehsil Merta City, District Nagaur (Raj.)
----Petitioners
Versus
1. Rajasthan Public Service Commission, Ajmer Through Its
Secretary.
2. State Of Rajasthan, Through The Principal Secretary,
Department Of Fisheries, Government Of Rajasthan,
Government Secretariat, Jaipur.
3. Director, Directoate Of Fisheries, Government Of
Rajasthan, Tonk Road, Jaipur.
4. Mukesh Sharma Son Of Shri Dhul Chand Sharma,
Resident Of Village Daroli, Tehsil Ballabhnagar, District
Udaipur.
----Respondents
For Petitioner(s) : Ms. Sushila Kalwania For Respondent(s) : Ms. Sheetal Mirdha, AAG Mr. M.F. Baig (for RPSC) HON'BLE MR. JUSTICE INDERJEET SINGH Order 08/03/2022
1. This writ petition has been filed by the petitioners with the following prayers;
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow this writ petition and-(Downloaded on 11/03/2022 at 09:18:44 PM)
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(a) by issue of an appropriate writ, order or direction in the nature thereof to quash and set aside the result of the recruitment on the posts of Fisheries Development Officers and Assistant Fisheries Development Officers declared on 19.05.2020 (Annexure 16 and 17) by the Rajasthan Public Service Commission, Ajmer and direct Rajasthan Public Service Commission, Ajmer to prepare revised results irrespective of any category to the extent of General category (open category seats and consider the cases of the petitioners for further selection process i.e. Interview and give the appointment to the petitioners on the basis of their merit on the posts of Fisheries Development Officer and Assistant Fisheries Development Officers;
(b) by issue of an appropriate writ, order or direction in the nature thereof direct the RPSC to count the petitioners as if they belongs to open category to the extent of their merit and be included in the merit list of general category candidates as per the formula laid down by the Hon'ble Supreme Court in catena of judgments from Indra Sawhney to Rajesh Daria, and this Hon'ble Court in Sheikh Mohammad Afzal's case and allow them to appear in interview for the posts of Fisheries Development Officer and Assistant Fisheries Development Officer and resort to reservation policy at the stage of final selection and appointment only;
(c) by issue of an appropriate writ, order or direction in the nature thereof direct the respondents that if the petitioners find place in the merit list so prepared they be given appointment on the basis of their merit on the posts of Fisheries Development Officers and Assistant Fisheries Development Officers in pursuance to the advertisement dated 08.07.2019 and corrigendum advertisement dated 14.05.2020 issued by the RPSC
(d) award costs of this writ petition to the petitioners; and (Downloaded on 11/03/2022 at 09:18:44 PM) (3 of 10) [CW-5895/2020]
(e) award such other and further relief/s, as may be deemed just and expedient in the facts and circumstances of the present so as to give full relief to the petitioners."
2. By way of this writ petition, the petitioners have challenged the selection process initiated by the Rajasthan Public Service Commission (hereinafter to be referred as the "Commission"). At the outset, counsel for the petitioners submitted that they have raised certain questions for consideration of this Court in the present petition and advanced their arguments in respect of not adding the marks towards academics before proceeding for interview.
3. Brief facts of the case are that the Commission issued an advertisement dated 08.07.2019 followed with corrigendum dated 14.05.2020 for holding selections for the post of Fisheries Development Officers and Assistant Fisheries Development Officers under the Rajasthan Fisheries State and Subordinate Service Rules, 2012 (hereinafter to be referred as the "Rules of 2012"). In pursuance thereof the petitioners applied for the post of Fisheries Development Officers and Assistant Fisheries Development Officers and after holding the screening test, its result was declared by the Commission on 19.05.2020 without declaring the cut-off marks of the screening test. It has been prescribed in the advertisement that screening test would be of 40 marks, for academics there would be 20 marks and the interview would be of 40 marks, as such the total marks would be 100, as stipulated in the advertisement.
4. Counsel for the petitioners submits that the process/procedure adopted by the Commission for holding the selection is contrary to Rule 25 of the Rules of 2012 and in support of contention made a (Downloaded on 11/03/2022 at 09:18:44 PM) (4 of 10) [CW-5895/2020] reference of Rule 25 of the Rules, 2012 as well as of the advertisement prescribing marks for each of the three stages, which both are as under :-
"25. Scrutiny of Applications:-
The Commission or the Appointing Authority, as the case may be, shall scrutinize the applications received by them/it and require as many candidates qualified for appointment under these rules as seem to them/it desirable to appear before them/it for interview.
Provided that the decision of the Commission or the Appointing Authority, as the case may be, regarding the eligibility or otherwise of a candidate shall be final."
अन्य वविविरण च्यन अभ्यरर्थि्यियों कं के च्यन हं केतह च्यन प्रप्रक प्रक्रि्य्रक्रिया रिया ननया निमन्रक्रियानहम्नानुस्रक्रियार र हं केार रहेगस:-
प्रकरक्रि्य् म्नानुसंवसक्रक्रिया परपरीक्रक्रिया मष प्र्रक्रिया प्रापत कियों अ क्रक्रियादमस क क्रक्रिया म्नानुस्रक्रियाक्रक्रियात क्रक्रियार कहल पूण्रक्रियाणां क क्रक्रिया 40 प्ररिया नतशत भ्रक्रियार्रक्रियां क भ्रक्रियार्रक्रियां क क्रक्रिया भ्रक्रियार्रक्रियां क की ार रहेगणन्रक्रिया Marks secured in screening testx40 Total marks of screening test 40 अं क 20 अं क 40 अं क 100 अं क
5. Counsel for the petitioners submits that contrary to Rule 25 of the Rules of 2012 & also against their own scheme as prescribed in the advertisement, the Commission after holding the screening test and without adding the marks to be allotted towards the academics, has directly called the candidates for interview whereas the Commission should have proceeded for interview only (Downloaded on 11/03/2022 at 09:18:44 PM) (5 of 10) [CW-5895/2020] after adding the marks towards screening test plus the marks towards academics.
6. In support of the contentions, counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Sasidhar Reddy Sura Vs. State of Andhra Pradesh & Ors. reported in (2014) 2 SCC 158 where in para-14 it has been held as under;
"14. The said concept, with regard to the minimum age, has been brought in only from the report of the Commission. For the reasons recorded in the report of the Commission, the Commission was of the view that the post of a District and Sessions Judge, being an important post, which not only requires integrity and intelligence but also requires maturity, the Commission was of the view that a person not having completed 35 years of age should not be appointed to the said post. It is pertinent to note that this was merely a recommendation or suggestion made by the Commission. The recommendation or suggestion, if not supported by the Rules, cannot be implemented. In the instant case, the Rules are silent with regard to the minimum age. It only speaks about the maximum age. In the circumstances, one cannot read provisions incorporated in the report of the Commission into the Rules. The Rules are statutory and framed under the provisions of Article 309 of the Constitution of India. In our opinion, if the recommendations made by the Commission and the statutory Rules are at variance, the provisions incorporated in the Recruitment Rules have to be followed. It is pertinent to note that when such a question had been raised before this Court, in Syed T.A. Naqshbandi's case, this Court had also observed that till relevant recruitment rules are suitably amended so as to incorporate the recommendations made by the Commission, provisions of the statutory rules must be followed."(Downloaded on 11/03/2022 at 09:18:44 PM)
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7. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Hemani Malhotra Vs. High Court of Delhi reported in (2008) 7 SCC 11 where in para Nos.14, 15 & 16 it has been held as under;
"14. It is an admitted position that at the beginning of the selection process, no minimum cut-off marks for viva-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in K.Manjusree Vs.State of A.P., the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:(SCC pp.526- 27, para 33) "33. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for (Downloaded on 11/03/2022 at 09:18:44 PM) (7 of 10) [CW-5895/2020] interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
From the proposition of law laid down by this Court in the abovementioned case it is evident that previous procedure was not to have any minimum marks for viva-voce. Therefore, prescribing minimum marks for viva-voce was not permissible at all after the written test was conducted.
15.There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva-voce, but if minimum marks are not prescribed for viva-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva-voce, test was illegal.
16. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree did not notice the decisions in Ashok Kumar Yadav v. State of Haryana: as well as in K.H. Siraj v. High Court of Kerala, and, therefore, should be regarded either as decision per incuriam or should be referred to a larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it (Downloaded on 11/03/2022 at 09:18:44 PM) (8 of 10) [CW-5895/2020] is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree the Court noticed the decisions in: (1) P.K. Ramachandra Iyer v. Union of India; (2) Umesh Chandra Shukla v. Union of India; and (3) Durgacharan Misra v. State of Orissa, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the larger Bench for reconsidering the said decision."
8. Counsel further submits that the criteria for selection cannot be altered by the Authorities concerned in the middle or after the process of selection has commenced, in support thereof counsel placed reliance upon a judgment passed by the Hon'ble Supreme Court in the matter of K. Manjusree Vs. State of A.P. & Ors., reported in (2008) 3 SCC 512.
9. Counsel appearing on behalf of the respondent(s) while opposing the writ petition submitted that it is within the discretion of the Commission to adjudge the suitability of the candidate and to evolve the method for recruitment. Counsel fairly admitted that they have not added the marks of academics while calling the candidates for interview and they will add the marks towards the academics after the interview is held.
10. Counsel for the respondents relied on the judgment passed by the Hon'ble Supreme Court in the matter of West Bengal (Downloaded on 11/03/2022 at 09:18:44 PM) (9 of 10) [CW-5895/2020] Central School Service Commission & Ors. Vs. Abdul Halim & Ors., reported in 2019 (18) SCC 39.
11. Counsel further relied on the judgment passed by the Hon'ble Supreme Court in the matter of A.P. Public Service Commission Vs. Baloji Badhavath & Ors., reported in (2009) 5 SCC 1 and further on the judgment passed by the Hon'ble Supreme in the matter of Pranav Verma & Ors. Vs. The Registrar General of High Court of Punjab and Haryana At Chandigarh & Anr. reported in 2019 (2) SCT 814 (SC).
12. Counsel further relied on the judgment passed by the Co- ordinate Bench of this Court in the matter of Vijendra Singh Dudi Vs. State of Rajasthan and other connected matters (S.B. Civil Writ Petition No. 6657/2020, decided on 07.04.2021).
13. Heard counsel for the parties and perused the record.
14. This writ petition filed by the petitioners deserves to be allowed for the reasons; firstly, a bare reading of Rule 25 of the Rules of 2012 clearly shows that although it is the discretion of the recruiting agency to adopt any suitable procedure for appointment and to adjudge the suitability of the candidate but the same cannot be done contrary to their own advertisement; secondly, as per the selection process prescribed in the advertisement, total 40 marks have been fixed towards screening test, 20 marks towards academics, followed with the interview of 40 marks, thus it is clear that the marks awarded towards screening test plus the marks towards academics would be taken into consideration before proceeding for interview and therefore, in the facts and circumstances, the writ petition deserves acceptance and the result dated 19.05.2020 needs to be quashed. However, it is made clear that in the present judgment only the question of not adding (Downloaded on 11/03/2022 at 09:18:44 PM) (10 of 10) [CW-5895/2020] the marks of academics has been considered and the other questions are kept open.
15. In that view of the matter, the writ petitions are allowed. The result declared by the respondents dated 19.05.2020 is quashed. The Commission is directed to first add the marks of screening test (40 marks) and of academics (20 marks) and only after declaring the revised results in terms thereof, shall proceed to hold the interview. The other questions are kept open as observed above.
(INDERJEET SINGH),J Upendra/145 (Downloaded on 11/03/2022 at 09:18:44 PM) Powered by TCPDF (www.tcpdf.org)