Rajasthan High Court - Jodhpur
State Of Raj. & Ors vs Madan Gopal Paliwal on 25 January, 2011
Author: A.M.Sapre
Bench: A.M.Sapre
{ 1}
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
D.B. CIVIL SPL. APPEAL (WRIT) NO.638/2009
State of Rajasthan & Ors.
VS.
Madan Gopal Paliwal
Date of Judgment : 25.01.2011
PRESENT
HON'BLE MR.JUSTICE A.M.SAPRE
HON'BLE MR.JUSTICE C.M. TOTLA
Mr. G.R.Punia, AAG, for the appellant-State.
Mr. Mahesh Thanvi & Mr. Pradeep Choudhary, for the
respondent.
BY THE COURT: (PER HON'BLE A.M. SAPRE, J)
The decision rendered in this appeal shall also govern disposal of other three connected appeals being S.A.W.No.552/2009, 637/2009 and 853/2009 because all these appeals involve same controversy.
2. This is a special appeal filed by State (respondent of writ petition No.2194/2008) under Rule 134 of High Court Rules against an order dated 11.5.2009 passed by Single Judge in aforementioned writ petition. So far as SAW No.637/2009 is concerned, it also arises out of same order. So far as SAW No.853/2009 is concerned, it arises out of an order passed by same learned Single Judge basing his conclusion on the order passed earlier in aforementioned two writ petitions out of which SAW No.638/2009 and SAW { 2} No.637/2009 arise. So far as SAW No.552/2009 is concerned, it arises out of a writ petition, which was decided by another Single Judge, who was pleased to dismiss the writ petition. This appeal is, therefore, filed by writ petitioner. This is how, these four appeals are filed i.e. three by respondents of writ petitions against the order allowing the writ petitions and 4th appeal by writ petitioner against an order dismissing his writ petition.
3. The question therefore that arises for consideration in these appeals is whether writ petitioners have been able to make out a case and if so, on what grounds. Since in this case, out of four writ petitions, three were decided by one Single Bench and other was decided by another Single Bench, it resulted in passing of conflicting orders on one issue because as observed supra, one Single Bench allowed three writ petitions granting benefit to the respective three writ petitioners, whereas the other one, whose writ petition was decided though later in point of time as against three writ petitions the same was dismissed. In this view of the matter, the question is which order of Single Bench is correct i.e. the one which allowed the writ petition or the one which dismissed it.
4. In order to appreciate the issue involved in the appeals, few relevant facts need mention infra.
5. In July 2007, the State (Department of Home Affairs) issued an advertisement inviting application for filling the post of Constables in State Police Department. The advertisement inter-alia provided that candidates will have to appear in written examination and if found successful in the written examination to appear before Interview Board and to undergo physical ability test as a condition precedent for their { 3} selection.
6. Several candidates appeared which included the four writ petitioners. Since all the four writ petitioners cleared written examination hence they were called for interview and were also directed to undergo physical test. It was however noticed by Selection Authority Board that all the four writ petitioners (candidates) did not secure minimum eligible marks in the interview as provided in Rules framed in this behalf and hence these four were not selected. It is against this non-selection, these four candidates felt aggrieved and filed independent writ petitions out of which these four appeals arise. Their main grievance was that since they secured good percentage of marks both in written examination and also in physical fitness test, there was no reason for the Selection Committee to ignore their candidature only on the basis of marks obtained by them in interview. According to them, granting low marks in the interview i.e. 3 out of 20 appears to be arbitrary or/and irrational and hence it should be either ignored or increased so as to entitle the writ petitioner to secure the job. In substance therefore the main attack was on granting each writ petitioner lower marks in the interview by the Interview Board due to which they were held unsuccessful in the process of selection. It was also the case of writ petitioner that in some what similar circumstances, this Court (Single Bench) in one writ petition (Satypal case) reported in 2005(8) RDD 3320 (Raj.) had allowed the writ petition and while quashing the selection, directed the State to appoint the writ petitioner. It was thus contended that on parity, these writ petitioners should also be given appointment.
7. The State filed its return and justified their decision { 4} in not selecting the four writ petitioners. According to State, Rule 23 of the Rajasthan Police Subordinate Service Rules, 1989 (for short hereinafter called 'The Rules') provides that candidates, who have secured less than 36% marks in interview and 45% marks in aggregate shall not be recommended. It was therefore, contended that so far as four writ petitioners are concerned, admittedly all of them secured less than 36% marks in the interview as would be clear from the chart enclosed along with the return. It was thus contended that so far as grant of marks in interview is concerned, it was awarded by Interview Board, which consists of penal of experts (and not by one person) and hence there is no flaw in declaring these writ petitioners as ineligible for selection. It was contended that it may be a misfortune for these four writ petitioners, who secured less marks in interview i.e. less than what is prescribed in the Rules but then no blame can be put on the State for this event. It was thus contended that decision so taken is in conformity with the requirements of Rule 23 of the Rules and hence, no case is made out at the instance of any of the writ petitioners for interference in the decision of State in not selecting the writ petitioners for the post in question.
8. As observed supra, three writ petitions were allowed by one learned Single Bench, whereas another Single Bench which did not notice the earlier order and accordingly dismissed the writ petition of one candidate.
9. This is what the learned Single Judge, who allowed the three writ petitions held in concluding para:-
"In view of the above reasons following the same principles as has been applied in the case of Satyapal Kaswan (supra), the writ petitions of the petitioners are { 5} allowed and the respondents are directed to consider the petitioners' case for appointment by taking into account the same percentage of marks as they obtained in the other two tests i.e., in the written test and physical fitness test. The petitioners' case be considered and the appropriate orders be passed within a period of two months from the date of receipt of copy of this order, which may be served by the petitioners upon the respondents."
10. Similarly the other Bench without noticing the aforesaid order while dismissing the writ petition held as under:-
"As per reply, admittedly, according to the procedure which is formulated by the respondents for the purpose of selection and published in the advertisement, the petitioner was required to obtain 36% marks out of 10 marks but according to reply, he has secured only three marks out of 10 marks, therefore, obviously, the petitioner's merit was correctly assessed and he was not found suitable as per criteria laid down by the respondents."
11. So far as order allowing the writ petitions is concerned, the learned Single Judge essentially based his reasoning and conclusion on one earlier decision of Single Bench rendered in the case of Satyapal Kaswan Vs. State of Rajasthan 2005(8) RDD 3320 (Raj.). The learned Single Judge however did not take note of Rule 23 nor examined the case of writ petitioners in the context of its requirements. So far as other writ petition was concerned out of which SAW 552/2009 arises, the learned Single Judge examined the case of writ petitioner in the light of requirement of Rules and finding that { 6} he did not obtain the requisite percentage of marks as per requirement of Rules, dismissed the writ petition. This is how, these four appeals are brought before this Court.
12. Learned counsel for the appellate (State) essentially argued two points. In the first place, he contended that order passed by Single Judge in W.P. No.2203/2006 dismissing the writ petition was in conformity with the requirement of Rule and hence it be upheld so that in consequence, other order passed by another Single Bench allowing the writ petition would be liable to be set aside. In the second place, learned counsel contended that Single Judge, who allowed the writ petition erred in allowing the same. According to him, the very fact that case in question was not examined by him in the light of requirements of Rules renders the impugned order unsustainable. It was his submission that the learned Single Judge in the first instance should have examined the case of each writ petitioner with reference to the requirements of Rule 23 and if any of the writ petitioner had been found to have fulfilled its requirements, issued direction for their appointments. Learned counsel urged that this was not done and instead straightway the writ was issued on the basis of decision rendered in Satyapal case (supra) treating both the cases being at par. Learned counsel pointed out that facts of the case of Satyapal are entirely different from that of the one involved in these cases as would be clear from mere reading of the decision. Learned counsel thus submitted that since marks of all the four candidates were found less than 36% in the interview and hence keeping in view the mandate of Rule, these candidates were not selected. It was submitted that writ petitioners had not challenged the virus of Rule 23 and even if challenged in the case of Govind did not pursue it and hence { 7} so long as Rule 23 remains on the Statute Book, the same has to be given effect to while considering the cases of candidates. Learned counsel contended that in fact if the case of writ petitioners had been considered dehors the Rule, a case for interference would have been made out. He lastly submitted that selection proceedings were not impugned on the ground of malafides as was done in the case of Satyapal nor any member of Interview Board was arrayed as party respondent attributing any malice against him in these cases and hence in the absence of any arbitrariness and malafides not being attributed, the writ petitions should be dismissed.
13. In reply, learned counsel for the writ petitioners supported the impugned judgment, which according to them rightly allowed the writ petitions by placing reliance on the decision of Satyapal. According to them, not only this decision be upheld but the other one also, which dismissed the writ petition should be allowed and benefit of the judgment be given to the unsuccessful writ petitioner at par with other three writ petitioners.
14. Having heard the learned counsel for the parties and on perusal of record of the case, we are inclined to allow three SAWs filed by State and in consequence dismiss the SAW filed by writ petitioner. As a consequence, all the four writ petitions deserve to be dismissed.
15. Rule 23 of the Rules, which is relevant for this case reads as under:-
"23. Recommendations of the Board/Commission.- The Board/ Commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post concerned, arranged in order of merit, and forward the same to the Director General-cum-Inspector { 8} General of Police, who shall in his turn intimate to the Appointing Authority concerned, the name of the candidates in order of merit as mentioned in the list, upto the number of vacancies available. The Board , Commission shall not recommend candidates, who have secured less than 36% marks in interview and 45% marks in the aggregate:
Provided that the Recruitment Board/Commission may recommend candidates belonging to the Scheduled Castes and Scheduled Tribes, who though failing to obtain the minimum marks, are declared by the Board/to be suitable for appointment to the service with due regard to the maintenance of efficiency of administration, if the candidates secure 30% marks in interview and 40% marks in the aggregate."
16. Perusal of Rule 23 would go to show that it in clear terms provide that candidates who have secured less than 36% marks in interview and less than 45% in aggregate, shall not be recommended. Proviso gives relaxation in case if the candidate is SC/ST provided other conditions mentioned in proviso are fulfilled by such candidate.
17. In our opinion, when the procedure for selection including even % of marks to be obtained by candidate in interview is prescribed in the Rules, then State is under obligation to ensure its strict compliance. Any decision taken dehors the Rule would be liable to be vitiated being in contravention of the Rules. In other words, selection of candidate must pass through the procedure prescribed in the Rules. It is only then the same can be upheld in Court of law { 9} when challenged.
18. Coming now to the facts of this case, the undisputed position of marks obtained by the writ petitioners in the written examination, physical test and interview is as follows:-
Marks in Marks in
Marks in
Sr.No. Name Written Physical
Interview
Examination Test
Mahendra Singh s/o
1. 42.5 20 3
RamKaran
Madan Gopal
2. Paliwal s/o Ram 40 20 3
Chandra Paliwal
Shyam Lal s/o
3. 43.125 20 3
Bhanwar Lal
Govind Singh s/o
5. 0 3
Gajdhar
19. It cannot be disputed that all four writ petitioners have secured less marks in % than what is prescribed in Rule 23 i.e. everyone secured less than 36% in the interview. We thus need not take into account other marks. It is due to this reason, none of them could be declared successful in the selection process.
20. As rightly argued by learned counsel for the State that since Rules are not attacked as being unconstitutional by the wit petitioner in any of the writ petitions and even if challenged, the cases of writ petitioners had to be considered in the light of its requirement of Rules along with all other candidates. There was thus uniform principle applied in { 10 } considering the cases of all candidates. Neither can we, therefore, ignore the mandate of the Rule nor can we relax any of its requirement nor can we grant or add any marks to any candidate and nor we can direct the State to exclude some marks while considering the case of any candidate. In our view, this is not the function of the Court and if it is done then it would amount to applying one method of selection for those, who approached the Court and one to those who did not come to Court. Such situation cannot be allowed to be created by the orders of the Court while enforcing the Rule.
21. It is not the case of writ petitioners that interview in question is vitiated due to malafides on the part of any member of Interview Board or it was a farce in the sense that someone was fovoured due to extraneous consideration as a result of which writ petitioners were excluded to accommodate other favourats of someone. In the first place, we do not find any averment in the writ petition on this issue. Secondly there is no specific challenge to selection process on such lines and lastly we have not been able to notice any arbitrariness in conducting of interview for want of any factual averments in the writ petition except mention of expression - 'arbitrary' or/and 'illegal'. It is not sufficient.
22. It is not for this Court to decide as to why writ petitioner was given three marks and whether he could have been awarded more than what he actually secured only because he did well in the written examination. This fact in itself may not be sufficient to increase the marks in interview. This is not the job of Court unless the action is attacked on the ground of malafides or unfairness. As observed supra, no such pleadings and/or ground much less with sufficient evidence was taken by the writ petitioner in the writ petition to { 11 } enable this Court to examine the case of writ petitioners on these lines. It is for these reason we are not inclined to accept the view taken by Single Judge when he proceeded to allow the three writ petitions.
23. In our opinion, the learned Single Judge erred in placing reliance on the decision of Satyapal (supra) for allowing the writ petition. With respect we cannot concur with this finding of learned Single Judge on this issue because the case of Satyapal turned on its own peculiar facts, which are not present in any of these four writ petitions.
24. In the case of Satyapal, he was an Ex-Army Personnel. He appeared in written examination and having successfully passed appeared in physical efficiency test. In that also, he stood first. However his candidature was rejected only on the ground that he suffered with 'Flat Foot'. He therefore, filed a writ petition challenging his rejection. The High Court allowed the writ petition and while so allowing directed the State to constitute a Medical Board to re-examine him in the physical fitness and if found fit, grant him an appointment. Accordingly he appeared before Medical Board, who found him fit to be recruited and yet his case was rejected by giving him only two marks in interview. This was then again challenged in the writ petition. It is this writ petition, which was allowed with following observations:-
"9. In accordance with Rule 23 of the Rules of 1989 an incumbent is required to secure at lest 36% marks in interview, therefore, the respondents declared him failed.
10. This Court is required to examine as to whether the respondents fairly and objectively allowed 2 marks to the petitioner in interview? In normal course the presumption is that the selection board must have { 12 } acted fairly, objectively and with view to select a best aspirant for appointment from available stuff, however, in present case a doubt is created about fairness of the selection board while granting 2 marks in interview for the reason that at first instance the petitioner was declared unfit to be appointed as constable by treating him suffered with flat foot. The petitioner subsequently on examination by competent Medical Board was found fit to be appointed as constable being not suffered with flat foot. It is also pertinent to note that the petitioner secured 31 marks out of 50 marks in written test and also stood first in 1000 meters run. It is also pertinent to note that the respondents have not given any reason as to why at first instance the petitioner was treated to be suffered with flat foot. The petitioner also served Indian Army for a considerable period. It is further important to note that the respondents were going to make appointment to the lowest post in Rajasthan Police and interview in these selection proceedings is normally to check testimonials of the aspirant. In present case the circumstances create doubts about the objectivity of the selection board. It appears that the respondents were determined for not giving appointment to the petitioner."
25. It is clear from perusal of aforesaid facts that it did not involve any interpretation of Rule or laying down any principle of law as such but the writ was issued only on peculiar facts involved in the case. It was noticed by learned Single Judge that when a candidate has passed all the tests { 13 } successfully and having served in Military for years was first denied the selection on the ground that his foot is flat and when second time, Medical Board constituted pursuant to Court's order certified him to be fit and did not suffer disqualification due to having 'flat foot', then second time, his case was rejected on other ground, which was not made basis earlier. Looking to these facts, the Court interfered and directed that he be appointed. Such is not the case in these cases because neither any such cause was pleaded nor any such ground was taken. In these cases, the only ground was that why they were granted less marks in interview. As held supra, this Court in the absence of any factual foundation as was taken in Satyapal cannot entertain such challenge and ask the Interview Board to give reasons as to why and on what basis they gave three marks.
26. It is a settled law that Courts are not experts to decide the suitability of any candidates nor can the Court undertake any such job to themselves. It is for the expert bodies to undertake this task and appoint a person to whom they consider best suited to the post. It is only when any extraneous considerations are found present in selecting any candidate, the Court may consider probing in the process to find out presence of such consideration within the well known parameters laid down for such inquiry. Such is not the case here.
27. It is for these reasons, we hold that learned Single Judge should not have relied on Satyapal case for allowing the writ petitions. It was distinguishable on facts.
28. We are also of the opinion, that learned Single Judge should have on the facts confined its examination keeping in view the requirements of Rule 23 only like what the { 14 } other Single Judge did while dismissing the writ petition. Since it was not done in three writ petitions and hence it calls for interference by this Court.
29. In view of foregoing discussion, we allow the appeals filed by State i.e. SAW No.638/2009, 637/2009 and 853/2009 and while setting aside of the impugned order hold that writ petitioners were rightly held not eligible for selection on the post of 'Constable' as per requirement of Rule 23 ibid. As a consequence of this finding the writ petition out of which these three SAWs arise are found to be devoid of any merit. They are accordingly dismissed. So far as SAW No.552/2009 is concerned, it is also dismissed.
No cost.
( C.M. TOTLA),J. ( A. M. SAPRE ),J. /tarun/