Rajasthan High Court - Jodhpur
Naina Ram vs The Rajasthan High Court, Jodhpur on 26 March, 2019
Author: Sangeet Lodha
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ No. 3295/2019
1. Naina Ram S/o Sh. Ishara Ram, Aged About 19 Years,
R/o- 189, Ajit Nagar, Nathrau, Tehsil- Balesar, District
Jodhpur.
2. Avdhesh Kumar Dadhich S/o Sh. Hanuman Sahay
Dadhich,, Aged About 23 Years, R/o - Vpo - Gahold, Tehsil
- Peeplu, District Tonk.
3. Bhuvnesh Kumari D/o Sh. Ramesh Chand, Aged About 23
Years, R/o Vpo- Atarsuma, Tehsil- Baseri, District Dholpur.
4. Mukesh Choyal S/o Sh. Parma Ram Choyal, Aged About
23 Years, R/o- Choylo Ki Dhani, Vpo-Jawla, Tehsil-
Parbatsar, District- Nagaur.
5. Nitesh Kumar S/o Sh. Prabhu Dayal Sharma, Aged About
24 Years, R/o- Vpo-Chudina, Tehsil-Buhana, District
Jhunjhunu.
6. Likhma Ram Jakhar S/o Sh. Bhinya Ram, Aged About 23
Years, R/o Jakharo Ki Dhani, Vpo- Bithwliya, Tehsil-
Parbatsar, District- Nagaur.
7. Deva Ram S/o Sh. Sona Ram, Aged About 28 Years, R/o
Village Pacharo Bichuo Ki Dhani, Post- Deu, Tehsil-
Khinwsar, District- Nagaur.
8. Akash Verma S/o Sh. Veerendra Kumar Verma, Aged
About 20 Years, R/o - Opp. Chandpole Gate, Near Surjeet
School, Tehsil And District- Bharatpur.
9. Sonu Kumar S/o Sh. Kamal Singh, Aged About 20 Years,
R/o- Village- Hasanpur, Post- Gadoli, Tehsil Nadbai,
District Bharatpur.
10. Shivani Verma D/o Sh. Veerendra Verma, Aged About 22
Years, R/o- Op. Chandpole Gate, Near Surjeet School,
Bharatpur.
11. Mamta Sharma D/o Sh. Pappu Sharma, Aged About 30
Years, R/o- 80, Vishveshwariya Nagar Extension,
Gopalpura, Jaipur.
12. Purushottam Meena S/o Sh. Hariram Meena, Aged About
19 Years, R/o- Village- Jhaurol, Post-Katara, Tehsil-
Nadbai, District Bharatpur.
13. Kiran Rani D/o Sh. Pradeep Kumar, Aged About 24 Years,
(Downloaded on 30/06/2019 at 04:55:30 AM)
(2 of 10) [CW-3295/2019]
R/o- Vpo- Dhigarla, Tehsil- Rajgarh, District- Churu.
14. Anu Kumari Devatwal D/o Sh. Ram Kishore Devatwal,
Aged About 24 Years, R/o- Malviya Nagar, Jaipur.
15. Yogesh Prasad Boss S/o Sh. Likhma Ram, Aged About 22
Years, R/o- Vpo- Bosiyo Ki Dhani, Bishala Agore, Tehsil
And District- Barmer.
----Petitioners
Versus
1. The Rajasthan High Court, Jodhpur, Through The
Registrar General, Rajasthan High Court, Jodhpur.
2. The Registrar (Examination), Rajasthan High Court,
Jodhpur.
----Respondents
For Petitioner(s) : Mr. R.S.Saluja with Ms.Archana Joshi
and Mr. Ramdeen Choudhary
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Order Per Hon'ble Mr.Sangeet Lodha, J.
26th March, 2019
1. By way of this writ petition, the petitioners have questioned the legality of notice dated 22.2.19 issued by the Registrar (Examination), Rajasthan High Court, whereby the process for recruitment of Class IV Employees in various District Judgeships of Rajasthan initiated vide advertisement dated 8.2.18 issued under the provisions of the Rajasthan Subordinate Courts (Drivers and Class IV Employees) Service Rules, 2017 (for short "the Rules"), has been cancelled and fresh process is proposed to be initiated after appropriate amendments in the Rules.
(Downloaded on 30/06/2019 at 04:55:30 AM)
(3 of 10) [CW-3295/2019] 2. The facts relevant are that the Registrar General of
Rajasthan High Court, the Recruiting Authority under the Rules issued an advertisement dated 8.2.18 for filling up 2178 vacant posts of Class IV Employees (Office Peon/Equivalent Posts) in various District Judgeships of Rajasthan. As per the advertisement issued in conformity with Rule 14 read with Schedule I of the Rules, the eligibility qualification for recruitment to the post was prescribed as 'Secondary from Board of Secondary Education, Rajasthan or any other Board recognized by the Government and working knowledge of Hindi written in Devnagari script and knowledge of Rajasthani culture'. As per Rule 26 of the Rules, the merit list for selection to the post of Office Peon and equivalent posts mentioned in the Schedule was required to be prepared by the Recruiting Authority on the basis of the marks obtained in Secondary Examination conducted by the Board of Secondary Education, Rajasthan or any other Board recognized by the Government.
3. The petitioners being eligible and aspirant for recruitment to the post of Peon, submitted their online application forms well within time. Later, vide notice dated 29.6.18 candidates were extended an opportunity to effect corrections in their online application forms during the period from 2.7.18 to 16.7.18. The selection process remained pending thereafter and now all of a sudden, vide notice dated 22.2.19 issued by the Registrar (Examination), the selection process has been cancelled and the recruitment process is proposed to be initiated afresh after requisite amendments in the Rules. Hence, this petition.
4. Learned counsels appearing for the petitioners contended that at every stage of a selection process which starts with the (Downloaded on 30/06/2019 at 04:55:30 AM) (4 of 10) [CW-3295/2019] issuance of advertisement, certain vested rights accrue in favour of the candidates, which cannot be interfered with in casual and perfunctory manner. Learned counsel submitted that Rule 26 of the Rules specifically provides that the selection shall be made on the basis of marks obtained in Secondary Examination and thus, the impugned notice issued cancelling the selection process and proposing to change the procedure adopted so as to adversely affect the selection process, is ex facie illegal. Learned counsel would submit that the substitution of existing Rule 26 of the Rules by the respondents by way of Rajasthan Subordinate Courts (Driver and Class IV Employees) Service (Amendment) Rules, 2019 (for short "the Amended Rules, 2019") cannot be applied retrospectively so as to set at naught the selection process already initiated under the Rules. Learned counsel would submit that the reasons assigned for cancelling the selection process is absolutely arbitrary inasmuch as, it is specifically provided in clause (11) of the advertisement that where the marks are awarded in the Secondary Examination on Grade or CGPA basis, how the percentage of marks shall be arrived at. Learned counsel submitted that if a particular subject in the Secondary Examination is considered to be non-credit/credit subject in a particular year, the marks awarded in the subject are to be calculated accordingly i.e. in a year when it is a non-credit subject, marks awarded in the subject are not to be counted and in the event of the same being a credit subject as declared by the Board concerned, the marks will have to be taken into account. It is submitted that where the Boards are lenient in awarding marks uniformly, in that event, marks of such Board after identification could be reduced by some percentage. According to the learned (Downloaded on 30/06/2019 at 04:55:30 AM) (5 of 10) [CW-3295/2019] counsel instead of taking the requisite exercise for arriving at the appropriate percentage of marks of individual candidates, the cancellation of the recruitment process is not justified. In support of the contentions, learned counsel has relied upon the decisions of the Supreme Court in the matter of "A.A.Calton vs. Director of Education & Anr.", AIR 1983 SC 1143, "H.C.Kulwant Singh vs. H.C.Daya Ram", AIR 2014 SC 3083 and "Lt. Cdr. M.Ramesh vs. Union of India & Ors.", AIR 2018 SC 1965.
5. We have considered the submissions of the learned counsel for the petitioners and perused the material on record.
6. There cannot be any quarrel with the proposition that the statute creating vested right in favour of the persons cannot be construed as procedural provision and in absence of expressed provision, it cannot be given retrospective effect. Further, a selection process initiated for recruitment to the posts in the realm of public employment cannot be set at naught without justifiable reasons adversely affecting the vested rights of the aspiring candidates, if any accrued.
7. But then, the question which requires consideration in the instant case is that whether by merely making an application for recruitment to the post of Class IV Employees pursuant to the advertisement issued by the Recruiting Authority, any vested right is accrued to the applicants to claim consideration of their candidature for recruitment to the post advertised, on the basis of the criteria prevalent at the relevant time, which now stands amended by way of the Amendment Rules, 2019.
8. It is pertinent to note that pursuant to the advertisement issued, the aspiring candidates including the petitioners herein, submitted their applications online for consideration of their (Downloaded on 30/06/2019 at 04:55:30 AM) (6 of 10) [CW-3295/2019] candidature for recruitment to the post as per the criteria laid down. But the fact remains that for the reasons specified in the impugned notice, the matter could not proceed further, the percentage of the marks obtained by the individual candidates could not be determined and no merit list was prepared so as to create a vested right in favour of the candidates to claim appointment on the post on the basis of their position in the merit list.
9. A perusal of the impugned notice reveals that the mark sheets of the candidates were scrutinized by the Recruiting Authority but on account of serious discrepancies, the percentage of the marks obtained by various candidates from different Education Boards could not be determined and therefore, the Recruiting Authority contacted the authorities of the various Education Boards to resolve the discrepancies but to no avail. The reasons for cancellation of the selection process set out in detail in the impugned notice cannot be said to be capricious or perverse.
10. It is noticed that while cancelling the selection process, the rights of the candidates have been protected by specifically providing that all the candidates who had already applied shall be entitled to participate in the fresh selection process to be initiated after appropriate amendment in the Rules, they will be extended relaxation in age and they would not be liable to pay the examination fee afresh. That apart, the candidates who do not intend to participate, are also made entitled for refund of the examination free online.
11. It is brought to our notice by the learned counsel appearing for the petitioners that as a matter of fact, vide notification dated 5.3.19 issued by the Department of Personnel in consultation with (Downloaded on 30/06/2019 at 04:55:30 AM) (7 of 10) [CW-3295/2019] the High Court, Rule 26 of the Rules has already been amended by way of Amendment Rules, 2019, which stands substituted as under:
"26. Selection to the post of Office Peon etc.-(1) Selection to the post of Office peon and other posts mentioned at item No.3 in the Schedule-II shall be made by direct recruitment through competitive examination consisting of written test and interview, carrying 85 and 15 marks respectively.
(2) The common written test of 2 hours' duration shall be objection type-multiple choice questions of matriculation standard covering following-
(a) General Hindi
(b) General English
(c) Rajasthani culture and dialects.
(3) On the basis of marks secured in written test, candidates to the extent of five times of total number of vacancies (category wise) shall be declared qualified to be called for interview.
Explanation- In case of candidates securing equal marks in written examination, the candidate(s) elder in age shall be called for interview.
(4) Interview shall be for the purpose of adjudging overall suitability of the candidate.
(5) Merit list for selection shall be prepared on the basis of aggregate marks obtained in the written test and interview.
Explanation-
(i) In case of candidates securing equal aggregate marks in written test and interview, preference shall be given to the candidate securing more marks in interview.
(ii) In case of candidates securing equal aggregate marks in written test and interview and also equal marks in interview, preference shall be given to the candidate elder in age."
12. A bare perusal of amended Rule 26 makes it abundantly clear that by way of amendment, the eligibility qualification for recruitment to the post has not been substantially changed (Downloaded on 30/06/2019 at 04:55:30 AM) (8 of 10) [CW-3295/2019] inasmuch as, while the eligibility qualification of Secondary from Board of Secondary Education, Rajasthan or any equivalent or any other Board recognized by the Government is kept intact, only the method to be adopted for adjudging the suitability of the candidate has been changed. Now, instead of the selection on the basis of the percentage of the marks obtained in Secondary Education, the recruitment shall be made on the basis of the competitive examination consisting of written test and interview and thus, in no manner, it can be said that any vested right of the candidates who had applied for the recruitment pursuant to the advertisement in question is adversely effected.
13. In the matter of "P.Suseela & Ors. vs. University Grants Commission & Ors.", AIR 2015 SC 1976, where for the recruitment to the post of Lecturer/Assistant Professors, the additional qualification of NET was provided under the UGC Regulations, the Supreme Court while dealing with the issue observed:
"15. Similar is the case on facts here. A vested right would arise only if any of the Appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the Appellants. At the highest, the Appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the Appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the Appellants is affected, nor does it mean that the Regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private Appellants before us must fail." (emphasis supplied) (Downloaded on 30/06/2019 at 04:55:30 AM) (9 of 10) [CW-3295/2019]
14. In "State of Madhya Pradesh vs. Raghuveer Singh Yadav", 1994 (6) SCC 151, where for the recruitment to the post of Inspectors in Department of Weight and Measure in the State of M.P., the eligibility qualification prescribed was amended by the Government during the recruitment process already in vogue, the Supreme Court held :
"5. It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules." (emphasis supplied)
15. As a matter of fact, even the inclusion of the name in the select list does not create an indefeasible right in favour of the candidate for appointment to the post. There is no absolute rule either that the vacancies occurred prior to the advertisement issued must be filled in on the basis of the criteria laid down on the date when the vacancies arose.
16. As noticed above, in the instant case, the recruitment process had reached only to the stage of receipt of the applications submitted by the aspiring candidates, no merit list was prepared and no recommendations were made for appointment of the candidates to the posts advertised. Thus, no (Downloaded on 30/06/2019 at 04:55:30 AM) (10 of 10) [CW-3295/2019] vested right whatsoever was created in favour of the candidates which could be said to have been interfered with by abandonment of the selection process initiated by issuance of the advertisement in question and the selection process being initiated afresh after requisite amendment in the Rules. Thus, the decisions cited by the learned counsel regarding the prospective application of the Rules affecting the vested right do not help them in any manner.
17. For the aforementioned reasons, the decision of the respondents in cancelling the selection process for the reasons recorded cannot be said to be arbitrary and it is not even being alleged to be malafide. In this view of the matter, no case for interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India is made out.
18. The writ petition is therefore, dismissed in limine.
(DINESH MEHTA),J (SANGEET LODHA),J
Aditya/
(Downloaded on 30/06/2019 at 04:55:30 AM)
Powered by TCPDF (www.tcpdf.org)