Rajasthan High Court - Jaipur
Ravi Sharma vs State (Personnel Dep )Anr on 23 July, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. CIVIL WRIT PETITION NO.12210/2013 RAKESH KUMAR SHARMA & ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.10147/2013 PANKAJ MEENA AND ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.10663/2013 SATISH KUMAR JANGID AND ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.10675/2013 MINAKSHI SHARMA AND ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.10788/2013 RAMESH KUMAR SONI AND ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11247/2013 JAI PRAKASH SHARMA AND ORS V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.11596/2013 AMIT GAUR AND ORS V/S R P S C AJMER AND ANR. AND S.B. CIVIL WRIT PETITION NO.11694/2013 DHARMENDRA KUMAR SHARMA V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11704/2013 PEEYUSH SHARMA V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.11705/2013 SURESH CHAND RAJPUT & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11736/2013 NARENDRA SINGH SINGODIYA & ANR V/S R P S C AJMER & ANR AND S.B. CIVIL WRIT PETITION NO.11738/2013 ASHISH MUDGAL & ORS V/S STATE OF RAJ. & ORS. AND S.B. CIVIL WRIT PETITION NO.11749/2013 GAURAV AGARWAL & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11787/2013 SATYA NARAYAN RATHORE V/S RPSC & ORS AND S.B. CIVIL WRIT PETITION NO.11792/2013 LOKESH KUMAR TIWARI & ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11843/2013 RAMPAL AND ORS V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.11850/2013 HANUMAN SAHAI SHARMA V/S R P S C AJMER & ANR AND S.B. CIVIL WRIT PETITION NO.11859/2013 AVADHESH SHARMA & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11862/2013 AJAY PAL SINGH SILOLIYA V/S R P S C AJMER & ANR AND S.B. CIVIL WRIT PETITION NO.11867/2013 KIRTI KUMAR BUNKAR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11874/2013 ANKIT AVASTHI & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11930/2013 DIVYA SAIN & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11931/2013 DEVESH MEENA & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11956/2013 BHAWANI SINGH V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.11992/2013 PYARE LAL SHARMA V/S V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12008/2013 VIJAY ANAND PAREEK & ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12009/2013 BAJARANG SINGH V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12030/2013 ANANDI LAL SHARMA V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12038/2013 AKHILESH SHARMA & ORS V/S R P S C AJMER & ANR AND S.B. CIVIL WRIT PETITION NO.12048/2013 VISHNU SHARMA V/S R P S C AJMER & ANR. AND S.B. CIVIL WRIT PETITION NO.12060/2013 RAVI AGARWAL & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12078/2013 SMT KUMUD MANGAL V/S R P S C AJMER & ANR AND S.B. CIVIL WRIT PETITION NO.12108/2013 ANKESH KUMAR SHARMA & ANR V/S STATE & ANR AND S.B. CIVIL WRIT PETITION NO.12124/2013 PRASHANT & ORS V/S STATE OF RAJ & ANR AND S.B. CIVIL WRIT PETITION NO.12125/2013 PRADEEP GUPTA & ORS V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.12163/2013 MANOJ KUMAR NAGAR & ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12173/2013 PRITI YADAV & ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12181/2013 SURESH SINGH V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12203/2013 ASHOK SHARMA V/S R P S C AJMER AND ANR AND S.B. CIVIL WRIT PETITION NO.12290/2013 NAMITA PANDEY AND ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12292/2013 RAMBABU SHARMA AND ANR V/S STATE & ANR AND S.B. CIVIL WRIT PETITION NO.12582/2013 BIJU V/S RPSC, AJMER AND S.B. CIVIL WRIT PETITION NO.12388/2013 RAJESH KUMAR BAIRWA V/S RPSC, AJMER AND S.B. CIVIL REVIEW PETITION NO.300/2012 RAMESH CHAND CHOUDHARY V/S STATE OF AND ANR AND S.B. CIVIL REVIEW PETITION NO.124/2013 OM PANWAR V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.12168/2013 RAJESH KUMAR SHARMA V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.12428/2013 SHARDA GUPTA V/S SECRETARY R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12455/2013 YUDHISTHIR VYAS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12458/2013 RAKESH CHOPRA V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12460/2013 MUKESH KUMAR SHARMA V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.12463/2013 KAPIL PARMAR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12577/2013 GAUTAM CHAND & ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12769/2013 HEMANT KUMAR DHAWAN V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12770/2013 ANIL KUMAR SHARMA V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.18318/2012 RAJESH JHALA AND ANR V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.14915/2012 DIGAMBAR SINGH POSWAL V/S STATE OF RAJ AND ANR AND S.B. CIVIL REVIEW PETITION NO.273/2012 PANKAJ GAUD AND ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.6657/2012 SITA RAM SHARMA AND ORS V/S STATE & ANR AND S.B. CIVIL WRIT PETITION NO.359/2013 RAVI SHARMA V/S STATE & ANR AND S.B. CIVIL WRIT PETITION NO.1125/2013 RAM GOPAL SHARMA V/S STATE OF RAJ AND ANR AND S.B. CIVIL WRIT PETITION NO.1135/2013 PANKAJ MEHTA V/S STATE & ANR AND S.B. CIVIL WRIT PETITION NO.3998/2013 ADARSH KISHOR AND ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12416/2013 AKHLAQ USTA V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12418/2013 NITIN VERMA V/S R P S C AJMER AND ANR AND S.B. CIVIL WRIT PETITION NO.12472/2013 PANKAJ SHARMA V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12698/2013 RAJENDRA PRASAD SHARMA & ANR V/S STATE OF RAJ & ANR AND S.B. CIVIL WRIT PETITION NO.12730/2013 ASHU KUMAR SHARMA V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12746/2013 PRADEEP PAREEK AND ORS V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12759/2013 SUBHASH CHANDER SAINI AND ANR V/S RPSC AND S.B. CIVIL WRIT PETITION NO.1072/2013 RIDHI CHANDRA SHARMA & ORS V/S R P S C, AJMER AND S.B. CIVIL WRIT PETITION NO.1466/2013 AKASH KUMAR SHARMA AND ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.3690/2013 MOHIT DASHORA AND ANR V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.7652/2013 PRAMOD KUMAR LAVANIYAN V/S R P S C AJMER AND S.B. CIVIL WRIT PETITION NO.12291/2013 MANISH GOYAL V/S R P S C AJMER DATE OF ORDER : 23/07/2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Nav Ratan Singh, Ram Pratap Saini, Rahul Choudhary, Pradeep Mathur, Vinod Pathak, Govind Gupta, Shailesh Prakash Sharma, Deen Dayal Sharma, Mahipal Kharra, S.K. Singodiya, Yogesh Ku. Sharma, Kuldeep Aswal, Rajkumar Sharma, Banwari Sharma, Mahendra Shah, Ashok Bansal, Umesh Vyas, Dharmendra Barala, Gajender Sharma, Dharmendra Jain, Kailash Sharma, Shyam Kant Sharma, Sunil Kumar Jain, Laxmi Kant Sharma, Vijay Pathak, R.D. Meena, R.A. Verma, Shashank Agarwal, Bharat Singh, Manish Sharma, Vikas Ganan, Hridayesh Sharma, Mukesh Kumar Verma, Yunus Khan, Raj Kumar Goyal, O.P. Mishra, Narendra Kumar Sharma, Bheem Saini Bairwa, B.P. Sharma, Samay Singh, for PETITIONERS Mr. Shantanu Kumawat for ] Mr. S.N. Kumawat, AAG ] for respondents
Mr. Dilip Singh Shekhawat ] Mr. Amit Kuri ] *** Heard learned counsel for the parties.
These writ petitions pertain to selection to the post of LDC pursuant to Combined Competitive Examination of 2011. The selection aforesaid is divided in two phases namely; Phase-I and Phase-II.
A litigation came earlier before this court when candidates were not allowed to appear in Phase-II Examination after declaration of result of Phase-I. It is precisely for want of 40% marks in each paper of Phase-I Examination. This court considered the issue in reference to the rule applicable herein and allowed the petitions with many-fold directions in the case of Devender Singh Chauhan V/S Rajasthan Public Service Commission, Ajmer, S.B. Civil Writ Petition No.2608/2012, decided on 02.04.2012.
It is informed that appeal against the said judgment was not referred, rather it was implemented by the respondents. The second litigation came on the same issue regarding post of Stenographer and therein bunch of writ petitions led by Amarchand Prajapati V/S State of Rajasthan & Anr., S.B. Civil Writ Petition No.8265/2012, were decided on 29.05.2012. Therein, the judgment was implemented by the respondents by treating it to be in rem without forcing candidate individually to approach this court. The outcome of the judgment was that if candidate is having aggregate 40 marks in Phase-I Examination, he should be allowed to appear in Phase-II Examination for selection to the post of LDC.
After the judgment, few more petitions came before this court when Phase-II examination was over and even in few cases, the result was also declared followed by appointment. The writ petitions therein were dismissed on the ground of delay. The petitioners preferred review petition along with present petitions. It is precisely on the ground that judgment in the case of Stenographer namely; Amarchand Prajapati (supra) has been treated in rem by the RPSC then as to why the judgment in the case of Devender Singh Chauhan (supra) has not been given same treatment. The notices on the review petitions were issued and in the meanwhile, the RPSC revised the result of Phase-I Examination of LDC due to discrepancy in the answer of certain questions. On the revision of result, RPSC again called few candidates to appear in Phase-II Examination in reference to the same selection. The petitioners and review petitioners are those who are having aggregate 40% marks in Phase-I Examination thus as per judgment in the case of Devender Singh Chauhan (supra) so as Amarchand Prajapati (supra), they are entitled to appear in Phase-II Examination.
Learned counsel appearing for RPSC submits that the judgment in the case of Devender Singh Chauhan (supra) was not treated to be as precedent as directed in Para 3 of concluding para. The judgment therein was made applicable limited to the petitioners. Therein, it was not applied in rem and otherwise should not be applied even if RPSC has taken a decision to hold Phase-II Examination again for those who could find place in the merit on revision of the result of Phase-I examination. This court made further observation in the case of Devender Singh Chauhan (supra) to rectify the discrepancy in the rule however, according to the Department of Personnel, State of Rajasthan, there exists no discrepancy in the rule. Taking note of the aforesaid argument, these writ petitions may be decided.
I have considered the rival submissions of the parties and perused the record.
The issue for determination in the previous writ petitions was as to whether one is required to obtain 40% marks in individual paper of Phase-I Examination for the post of LDC to become eligible for Phase-II Examination. Referring to the rules applicable herein, detailed judgment was given. It was held that so far as selection to the post of LDC is concerned, requirement is to possess 40% marks in Phase-I and 36% in each paper of Phase-II Examination. Part 2 of the rules does not require a candidate to secure 40% marks in each paper of Phase-I examination to become eligible for Phase-II examination. The relevant paras of the earlier judgment are quoted hereunder for ready reference:
Learned counsel for both the sides brought to the notice of this court a Notification dated 5.7.2010 issued by the Government of Rajasthan, Department of Personnel (A-Gr-II), amending the Rules of 1970 and Rules & Regulations of 1999. For convenience and ready reference, amendment in rule 27 of the Rules & Regulations of 1999 is quoted hereunder -
2. Amendment of Rule 27.- The existing proviso to rule 27 of the Rajasthan Public Service Commission (Ministerial and Subordinate Service) Rules and Regulations, 1999, hereinafter referred to as the said rules and regulations, shall be substituted by the following, namely:-
Provided further that the Commission shall not recommend any candidate for the post of Lower Division Clerks and Stenographers who has failed to obtain a minimum of 40% marks in each of the papers of the Phase-I and a minimum of 36% marks in each of the paper of the Phase-II of the competitive examination.
Referring to the above rule, learned Additional Advocate General Mr SN Kumawat submitted that one is not allowed to appear in Phase-II examination unless secure minimum 40% marks in each paper of Phase-I examination. He accordingly supports action of the Commission in denying appearance in Phase-II examination.
Learned counsel for petitioners, on the other hand, submits that by the aforesaid Notification dated 5.7.2010 even Schedule-II appended to the Rules and Regulations of 1999, existing part-II has been substituted. Therein, a condition to obtain 40% marks in each paper does not exist. For ready reference, schedule amended by the same Notification containing condition relevant to this case is also quoted hereunder-
PART-II SCHEME AND SYLLABUS OF THE COMPETITIVE EXAMINATION FOR THE POST OF LOWER DIVISION CLERKS ..........
Explanation:
(1) to (4) .........
(5) Candidates securing minimum 40% marks in the Phase-I, shall only be admitted to the Phase-II subject to three times the number of advertised vacancies but in the said range all those candidates who secure the same percentage of marks shall be included.
Perusal of the aforesaid shows requirement of 40% marks in Phase-I thus schedule to the rules so amended does not impose a condition to obtain 40% marks in each paper. The position of fact is further looked into from the condition given in the advertisement. In the explanation at para No.5 following has been mentioned -
5.????????? ???????? ?? ?????? ?? ??? ???? ?? ??????? ??? I ??? ??????? 40% ??? ??????? ???? ???? ?????????? ?? ?? ??? II ??? ?????? ???? ????? ?????? ???? ???? ??? ?? ????? ?????????? ?? ???????? ???? ????? ?? ???? ?? ???? ??????? ??????? ???? ??.
Perusal of the advertisement again reveals that specific condition to obtain 40% marks in each paper does not exist. In the aforesaid background, not only there exist conflict in the Rules & Regulations of 1999 itself and advertisement does not impose a condition to obtain 40% marks in each paper of Phase-I examination.
Petitioners appeared in the selection in Phase-I taking note of the condition mentioned in the advertisement where compulsion to obtain 40% marks in each paper of Phase-I does not exist. The Rules and Regulations are having conflict inasmuch as rule 27, now amended, impose a condition to obtain 40% marks in each paper of Phase-I examination, whereas, schedule so amended does not caste aforesaid condition.
In the facts and circumstances, I am of the opinion that looking to the conflict in the Rules and keeping in mind the terms of advertisement, it should go to the benefit of the candidates. It is also for the reason that candidates have appeared in the selection taking note of the terms of advertisement whereby they were not asked to obtain 40% of marks in each paper of phase-I examination. The petitioners have otherwise appeared in phase-II examination pursuant to interim orders of this court thus I dispose of all these writ petitions with the following directions -
1. The petitioners, who have already appeared in phase-II examination pursuant to interim orders of this court, would be eligible to get their final result. Those who will appear in phase-II examination scheduled for 5/6.4.2012 pursuant to directions of this court, would also be entitled for the same treatment provided petitioners have obtained 40% aggregate marks in phase-I examination.
2. The direction aforesaid has been given keeping in mind the conflict in the Rules and Regulations inasmuch as rule 27 of the Rules and Regulations of 1999 provides 40% marks in each paper whereas schedule appended thereto provides 40% marks in phase-I examination, the respondents are directed to look into the aforesaid and make suitable amendment in the rules so that contradictions may not remain.
3. Examination of Phase-II is over other than at one centre where examination is scheduled for 5/6.4.2012 thus direction aforesaid would be applicable to the petitioners only and directions given above would not be treated as a precedent. Rather directions aforesaid have been passed in the peculiar facts and circumstances of the case.
4. The respondent-State has been directed to take note of the discrepancy in the Rules thus it is expected that before the next selection, necessary amendment would be made either amending rule 27 of the Rules & Regulations of 1999 or the schedule appended thereto in whatever manner the government thinks fit and proper and similar action for the rules of 1970.
The judgment referred to above was not challenged before Division Bench, rather implemented by the respondents. The fate of the judgment is similar in regard to post of Stenographer where judgment in the case of Amarchand Prajapati (supra) was taken in rem thus RPSC itself allowed all the candidates to appear in Phase-II Examination who had secured 40% aggregate marks in Phase-I examination.
In the light of the aforesaid, the position as decided by this court in the earlier two cases referred to supra, applies to the situation now existing. In fact, certain petitions were dismissed by this court on the ground of delay because by the time writ petitions were filed, Phase-II examination was over. In few cases, though judgment was given but not implemented due to completion of Phase-II examinations. The review petitions in those cases were filed for the reason that judgment in the case of Amarchand Prajapati (supra) was treated in rem. The respondents have again kept Phase-II Examination pursuant to the same selection. In the light of the aforesaid, not only writ petitions but review petitions need to be allowed because ground of delay no more survives with announcement of Phase-II examination again in reference to the same selection.
The only argument of the respondents is that earlier judgment in the case of Devender Singh Chauhan (supra) was not to be treated as precedent. For that purpose, I have gone through the Para 3 of the concluding para, which is quoted hereunder:
3. Examination of Phase-II is over other than at one centre where examination is scheduled for 5/6.4.2012 thus direction aforesaid would be applicable to the petitioners only and directions given above would not be treated as a precedent. Rather directions aforesaid have been passed in the peculiar facts and circumstances of the case.
Perusal of direction given above shows that examination of Phase-II was over other than at one centre. The direction was restricted to the petitioners only and not to be treated as precedent inasmuch as those who had not approached in time, if entertained, may open pandora box to unsettle process of selection thus judgment was not to be treated as precedent. The factual position has now changed with the announcement of Phase-II examination due to revision of result of Phase-I examination.
So far as discrepancy in rule is concerned, it is upto the DOP to take its own view. However, once judgment has been given with certain observations and it has already attained finality in absence of challenge, the DOP was expected to take proper view to remove discrepancy. In any case, the direction in the present matter is only to treat the petitioners to be eligible to appear in Phase-II Examination pursuant to Part 2 of rules quoted in the earlier judgment and reproduced in preceding paras.
The writ petitions as well as review petitions are accordingly allowed with the direction to the respondents to allow petitioners for Phase-II Examination, if they are in possession of minimum 40% aggregate marks. It is given out that Phase-II examinations have been completed again on 20th and 21st of July, 2013. Thus, direction aforesaid would apply to those petitioners who have appeared in Phase-II Examination pursuant to the interim order. This judgment as well as interim order would not apply to those who had appeared in Phase-II examination earlier and remained unsuccessful therein. The respondents may proceed with the process of selection accordingly. This disposes of stay applications also.
[M.N.BHANDARI], J.
FRBOHRA/12210CWP2013.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A.