Rajasthan High Court - Jaipur
Naresh Sharma And Ors. vs Rpsc And Anr. on 9 September, 2005
Equivalent citations: RLW2005(4)RAJ3019, 2005(4)WLC612
JUDGMENT Shiv Kumar Sharma, J.
1. Can the Public Service Commission interpret the statutory rules operating in the field in such manner so as to impose its own policy decision? is the core question that emerges in this cluster of writ petitions.
2. The petitioners in the instant writ petitions seek judicial review of the action of Rajasthan Public Service Commission (for short 'RPSC'), whereby the RPSC in exercise of powers under Rule 15 of the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (for short '1999 Rules') invited the candidates for interview by including the candidates in the general category on the strength of their merit irrespective of their status being in the reserved or non reserved category.
3. The grievance of the petitioners is that RPSC should have positioned placement in the general category only of the candidates who do no belong to the reserve category. In other words the stand of the petitioners is that at the stage of being invited for interview the placement in the general category is the exclusive privilege of the non reserved category and inclusion of reserved category candidates in such a list on account of their merit is legally untenable.
4. Before proceeding further, it will be appropriate to take stock of relevant statutory provisions.
5. Rule 4 of 1999 Rules provides that combined competitive examination for the state and subordinate services shall be conducted by RPSC. Part III, which covers Rule 6 to Rule 22 prescribes procedure for holding examination. Rule 13 prescribes for minimum and maximum age for being eligible to appear in the examination. Proviso 1 to Rule 13 provides that the upper age limit (33 years) shall be relaxed by 5 years in the case of woman candidate and the candidates belonging to the Scheduled Castes and the Scheduled Tribes of Rajasthan. As per Proviso 11 to Rule 13 the upper age limit for the candidate belonging to other Backward Classes shall be 35 years. Sub rule 2 of Rule 9 provides that those candidates who qualify for interview shall be subsequently required to submit more detailed information in their application in the printed form approved by the commission and obtainable from the Secretary to the commission on payment of such fee if any, as may be fixed by the Commission from time to time.
6. Rule 15 of 1999 Rules provides thus:
"15. Scheme of Examination, personality and Viva-voce Test. The competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and Main Examination as per the scheme specified in Schedule-Ill. The marks obtained in the Preliminary Examination by the Candidates, are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (Category wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for lower range will be admitted to the main Examination.
Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthan Culture. However, for selection to the Rajasthan Police Service Candidates having 'C' Certificate of NCC will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidates;
Provided that the Commission, on intimation being received from the Government before declaration being result of the Preliminary Examination may increase or decrease the number of vacancies advertised."
7. Rule 17 of 1999 Rules relates to recommendation of the Commission by RPSC and it reads as under:-
"(1) The Commission shall prepare for each service a list of the candidates arranged in order of their of the candidates as disclosed by the aggregate marks finally awarded to each candidate. If two or more of such candidates obtain equal mark in the aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service;
Provided that the candidates (s) belonging to the other Backward Classes/Scheduled Castes/Scheduled Tribes, who get placement in the merit list as a result of special concession given to them in terms of 'age' and 'fees' or such other concession granted by the Government shall be counted against the reserved vacancies determined for the candidates belonging to the other Backward Classes/Scheduled Castes/Scheduled Tribes irrespective of the marks obtained by them.
(2) The Commission, while giving weightage to the preference for the posts in the different services expressed by a candidate in his/her application, may recommend him/her for appointment to any post in any such service for which it considers him suitable.
(3) The list complied under this rule shall be immediately sent to the Government and also be published for general information."
8. Scheme of examination as per Rule 6 of 1999 Rules is specified Schedule-Ill, which reads as under:-
"(1) Scheme of Examination - The Competitive Examination will be held in two successive stages:
(i) Preliminary Examination
(ii) Main Examination.
(i) Preliminary Examination - The Preliminary Examination will consist of two papers, i.e. one Compulsory paper and one Optional paper, which will be of objective type and carry a maximum of 400 marks in the subjects mentioned in Section A and B. The Examination is meant to serve as a screening test only. The marks obtained in the Preliminary Examination by the candidates, who are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit.
The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (category wise) to be filled in the year in the various services and posts, but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for any lower range will be admitted to the Main Examination.
Section A - Compulsory Paper (General Knowledge & General Science)....
Section B - Optional Papers (22 Papers)....
(ii) Main Examination - The written examination will consist of the following papers. A candidate must take all the compulsory papers and any two of the optional papers and any two of the optional papers listed below. Each of the optional subjects will have two papers. The time allowed for each papers shall be 3 hours.
List of papers..
(2) Personality and Viva-voce examination (see Rule 15);-
(i) Candidates who obtain such minimum qualifying marks in the written test of the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview for a personality test which carries 160 marks. It is obligatory for a candidate to appear in the compulsory papers.
(ii) The Commission shall award marks to each candidate interviewed by them. In interviewing the candidates besides awarding marks in respect of character, personality, address, physique marks shall also be awarded for the candidate's knowledge of Rajasthan Culture. However, for selection to the Rajasthan police service, candidates having 'C' Certificate of NCC shall be given preference. The marks so awarded shall be added to the marks obtained in the written test by each such candidate."
9. Learned Counsel for petitioners canvassed that the RPSC issued an advertisement inviting applications for appearing in Rajasthan State and Subordinate Combined Competitive Examination, 2003 (for short 'Examination'). The advertisement was published in different news papers on April, 15, 2003, wherein it was indicated that combined competitive examination shall be conducted for recruitment of eight state services and four subordinate services. It was also indicate total number of posts, break up on the basis of caste reservation and further break up of reservation for the women category, male category, disabled category, Serving non-gazetted employees and departmental employees category. The total advertised posts were 493. The examination was to be conducted in accordance with 1999 Rules that were framed under proviso to Article 309 of the Constitution of India.
10. It is contended on behalf of the petitioners that in the result of main examination, which was declared on April 27, 2005 274 candidates from general category were declared qualified. The RPSC has also included the candidates belonging to reserve categories of SC and ST in the general category. According to the petitioners it is not permissible because a candidate from the caste of reserve category, who has taken relaxation while appearing in examination cannot be treated as a general category candidate. A candidate who has been declared qualified in the preliminary examination in the reservation quota by coming on lesser merit if subsequently secure better marks in the examination cannot be treated in the general category, because the entry of such candidate in the main examination is on the basis of the reservation quota and relaxation granted to it. It is further averred by the petitioner that combined competitive examination is a three tier process. At initial stage the preliminary examination and thereafter the main examination, which is divided into two parts i.e. Written examination and personality test and Viva-voce. A merit list will have to be determined on the basis of marks obtained in the main examination plus the marks obtained in interview. According to the petitioners the ultimate merit is worked out by totaling the marks secured in the main qualifying examination plus the marks secured in interview. It is further averred that the result of preliminary examination was declared category wise, thereafter the result of main examination was declared wherein 1488 were declared successful. The candidates who were declared successful, were not given category, as used to be given earlier. In the news item published on May 1, 2005 the RPSC declared cut off marks of both male and female candidates category wise. The cut off marks of the general category male and female both were 731.
11. It is further contended that cut off marks both the male and female are same so far as the general category is concerned whereas the same are different in respect of other categories. According to petitioners the list of main examination has been prepared illegally and it cannot be made the basis for determination of merit of candidates which arises only after the interviews are taken place. According to learned Counsel for the petitioners the final result of RAS Examination, 1999 was declared after including the marks secured in the interview. Thus RPSC till 1999 was resorting to the roster system only after the interview had taken place and final list was prepared.
12. Per contra, learned Counsel for the RPSC and interveners urged that the main examination consisting of optional and compulsory subjects carries maximum 1300 marks whereas the interview carries 160 marks only, the ratio of which is 89:11 respectively used for preparation of final merit list. No roster system has been adopted while declaring the result of main examination. Only meritorious candidates have been placed in general category list and the reserved category list have been prepared in which the candidates belonging to respective categories have placed as per law of land. The writ petitions are based on misconceived interpretation. It is contended that the petitioners are confused with the definition of general category and they consider general category as the category of general caste candidates (belonging to castes for whom no reservation has been provided in Constitution) excluding the SC/ST/OBC meritorious candidates, whereas this is not the meaning of general category. The general category is always consisting of meritorious candidates irrespective of their castes and defined as Open Competition Category, excluding the candidates who took advantage of reserved category at any stage except the fee. It is further averred that OBC creamy layer candidates are treated as general category candidate and they cannot be counted against reserved OBC category. Therefore in fixing of minimum marks there is no arbitrariness and that has been fixed by RPSC in exercise of its discretionary power. The petitioners are also confused with the preliminary examination and main examination. Preliminary examination is for the purpose of shortlisting of the number of candidates to permit 15 times candidates to the number of vacancies for main examination, whereas the main examination is having main examination is having main role in preparation of main merit list because the marks of main examination constitute 89% of the total marks. Therefore the main merit list from which 3 times candidates to the number of vacancies are to be called for interview is an independent of anything and which is solely based on merit of meritorious candidates. The candidate belonging to OBC category cannot be deprived of his merit merely on the ground that he was born in OBC category and he has contested with the general category candidates to creamy layer OBC category. The cut of marks of general category male and female candidates were 731 because of their performance and restriction to call for interview three times to the number of vacancies.
13. Learned Counsel appearing for the RPSC and interveners submitted that placement of reserved category in the general category will be only on the sole consideration of merit without any reference to the status of a candidate qua reserved category or non reserved category. The general category is to be taken as an open merit category. The action of the RPSC is in consonance with the law laid down by the Hon'ble Apex Court and on the pattern of mechanism adopted by the Union Public Service Commission. Learned Counsel further urged that if the submission of petitioners is accepted than after the main examination a candidate of reserved category, even if he secured more marks and is more meritorious as compared to a non reserved category would be thrown out of the selection process, while a less meritorious non reserved category candidate would march into interview process. He further submitted that the judicial review depends on several circumstances. The action of RPSC is mechanism dictated by reasonableness, rationality, and the same is in consonance with the law laid down by the Apex Court and is aimed at serving the intent of reservation, protecting constitutionally rights therefore the judicial review will not be expedient in the interest of justice.
14. I have pondered over the submissions. Although various judicial pronouncements have been cited in support of the contentions, I would consider only a few which have direct bearing on the issues at hand.
15. In Ritesh R. Shah v. Dr. Y.L. Yamul, , the Apex Court held that there cannot be any dispute with the preposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16(4).
16. In Indra Sawhney v. Union of India, , the Apex Court held that it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.
17. In R.K. Sabharwal v. State of Punjab, , in view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category.
18. In R.S. Dass v. Union of India, (1986) Supp. SCC 617, the Apex Court held that where the Selection committee is constituted by High ranking responsible officers presided over by Chairman or a member of the Union Public Service Commission, there is no reason to hold that they would not act in fair and impartial manner in making selection. Where power is vested in high authority, there is a presumption that the same would be exercised reasonably.
19. In Haryana Public Service Commission v. Amarjeet Singh, (1999) SCC (L & S) 1451 the Apex Court held that the criterion adopted by the Public Service Commission might be defective but it was applied uniformly and therefore no prejudice was caused to respondents 1 and 2 or any other candidate.
20. In Tata Cellular v. Union of India, , the Apex Court held:-(para 94) "that it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which administrative action is subject to control by judicial review can be classified as under:-
(i) Illegality: this means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.
(ii) Irrationality, namely wednesbury unreasonableness.
(iii) Procedural impropriety.
In para 98, Wednesbury principle has been incorporated thus:-
"Wednesbury principle : A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it."
Para 99: "(1) It is open to the court to review the decision maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision maker. If the weight of facts pointing to one course of action is overwhelming then a decision the other way cannot be upheld. Thus in Emma Hotels Ltd. v. Secretary of the State of Environment, 1980 (41) P & CR 255, the Secretary of State referred to a number of factors which led him to the conclusion that a non resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel used for planning purposes, but constituted a separate use. The Divisional court analysed the factors which led the Secretary of State to that conclusion and having done so, set it aside. Donaldson LJ said that he could not see on what basis the Secretary of State had reached his conclusion.
(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R.V. Barnet London Borough Council ex P. Johnson, (1989) 88 LGR 73, the condition imposed by a local authority, prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down."
Para 113 "(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made."
21. In Dharamveer Tholia v. State of Raj., 2000 (3) WLC (Raj.) 399 : RLW 2000(3) Raj. 1809, this Court held as under:-
"49. Rule 15 of the Rules of 1999 provides the procedure to prepare the list of candidates for appearing in the main examinations, therefore, the result of the preliminary examination cannot be considered to be a final result. In regard to the submission made by the Senior Counsel for the petitioner about the reservation policy provided under Article 16(4) of the Constitution as well as the judgments cited are not in dispute but the same in our view will not be of any help or assistance to the petitioners at this stage of short listing. The judgment of the Hon'ble Supreme Court relied on by the petitioner in Sabharwal's case (supra) pertains to the promotion policy and also of the vacancies based on roster system which in our opinion, will be applicable only at the time of preparing the final select list. As per Rule 15, the RPSC shall permit the candidates 15 times the total approximate number of vacancies in each categories in the main examination and this rule has been upheld by the Supreme Court in Chattar Singh's case (supra). The reservation policy is meant for recruitment only and there is no other reservation policy for short listing in examination. As such, the actions of the RPSC are within the mandate of Article 16(4) of the Constitution of India as well as the Rules of 1999. If the contention of the learned Counsel for the petitioners is accepted, the thousands of meritorious candidates who have been selected as per the preliminary examination will be affected and their interest will be jeopardised."
22. In Inder Prakash Gupta v. State of J&K, 2004 (6) SCC 786, the Apex Court held in para 28 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 authority 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-of marks."
23. In State of Punjab v. Manjit Singh, 2003 (1) SCC 559, the Apex Court held as under:-
"11. In the case in hand, it was not for the commission in have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to-the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
24. Coming to the scheme of Examination as already noticed, that according to Rule 15 the candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by RPSC in their discretion shall be summoned for interview. The scheme of examination as per Rule 6 is specified in Schedule III according to which the candidates who obtain such minimum qualifying marks in the written test of the Main Examination as may be fixed by the RPSC in the discretion shall be summoned by them for an interview for a personality test which covers 160 marks. The RPSC shall award marks to each candidate interviewed by them. The marks so awarded shall be added to the marks obtained in the written test by each such candidate. Rule 17 provides that the RPSC shall prepare for each service, a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate.
25. The candidate belonging to the Scheduled Castes and the Scheduled Tribes entered in the examination after getting relaxation by 5 years in the upper age limit which was according to Rule 13, thirty three years whereas candidates belonging to other Backward Classes (OBC) got themselves entered in the examination after having two years relaxation in the upper age limit. As per Rule 15 the number of candidates to be admitted to the Main Examination was 15 times the total approximate number of vacancies (category wise). The candidates who appeared in the main examination category wise, their result of main examination ought to have been declared category wise. The RPSC undeniably adopted this procedure in the Examination conducted in 1999 and no departure could be made from the procedure so adopted while conducting examination in 2005. Integrated scheme of Examination incorporated in Schedule III ought to have been followed in letter and spirit. I find no substance in this argument that main examination is having main role in preparation of main merit list because the marks of main examination constitute 89% of the total marks. Final merit list as per Rule 17 in my opinion, should be prepared on the basis of marks obtained in the main examination plus the marks obtained by the candidate in interview.
26. I find myself unable to agree with this contention of learned Counsel for the RPSC and interveners that the RPSC has adopted a mechanism that is dictated by reasonableness rationality and is aimed at serving the intent of reservation and protecting constitutional rights, therefore interference by way of judicial review will not be expedient in the interest of justice. In my opinion interpretation of Rule 15 accorded by the RPSC is neither fair nor equitable. The RPSC while conducting Examination in 1999 declared the result of main examination category wise pursuant to Rule 15, therefore new interpretation can not be accorded to main Examination of 2005. In Inder Prakash Gupta v. State of J&K (supra) their Lordships of the Supreme Court indicated that Public Service Commission 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 purpost. Even for the purpose of short listing the Commission cannot fix any kind of cut-off marks. In State of Punjab v. Manjit Singh (supra) the Hon'ble Supreme Court observed that the Public Service Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. The Commission has to conform to the provisions of law and has also abide by the rules and regulations. The Commission cannot impost its own policy decision in a matter beyond its purview.
27. The RPSC in the intant matter made an attempt to smash the integrated scheme of examination provided by Schedule III. It is no doubt true that discretion has been given to RPSC by Rule 15 to fix minimum qualifying marks for the main examination but this discretion cannot be exercised in making departure of the procedure already laid down in by RPSC in 1999 Examination by declaring the result of main examination category-wise. The new interpretation accorded to Rule 15 by RPSC in my view, not in larger public interest.
28. Ratio indicated in Ritesh R. Shah (supra) is not applicable to the facts of the instant matter. In Ritesh R. Shah the question was whether a candidate belonging to the Scheduled Caste/Scheduled Tribe and other reserved category even if he is entitled to be selected for selection for admission in the open competition on the basis of his own merit yet can he be counted against the quota meant for reserved category or will he be treated as an open competition candidate? In the instant matter as per Schedule III without adding the marks obtained by the candidates final merit list can not be drawn. But ignoring the mandate of Rule 17 and Schedule HI and by making departure from the earlier mechanism adopted in similar circumstances, the RPSC drew the merit lit out of 89% marks of main written test. Once the harmonious construction of Rule 15 was followed by the RPSC in 1999, it is inexplicable as to why in 2005 the said construction has not been followed. I find procedural impropriety on the part of RPSC, which is amendable to judicial review as mandated by the Apex Court in case of Tata Cellular's (supra).
29. For these reasons, I allow the writ petitions and quash the result of Rajasthan State and Combined Competitive Main Examination declared on April 27, 2005 by the RPSC. The interviews (Personality and Viva-voce Examination) held thereafter also stand quashed. I direct the RPSC to declare the result of Main Examination category wise afresh, strictly in the same manner as was adopted by it on October 24,2000 while declaring the result of Main RAS and Subordinate Service Examination of 1999. The qualified candidates thereafter shall be summoned for interview (Personality and Viva-voce Examination) and final merit list shall be drawn on the basis of marks obtained in Main examination plus the marks secured in interview. The number of candidates to be called for interview shall not exceed thrice the number of vacancies to be filled. The parties shall bear their own costs.