Rajasthan High Court - Jodhpur
Malam Singh vs State Of Rajasthan on 5 May, 2022
Author: Arun Bhansali
Bench: Arun Bhansali
(1 of 16) [CW-7656/2021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7656/2021
Kishan Singh S/o Shri Kalu Singh, Aged About 21 Years, R/o
Village Dholiya Baru, Tehsil Bap, District Jodhpur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Home, Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director General Of Police, Police Department, Jaipur,
Rajasthan.
3. The Inspector General Of Police, R.a.c., Jaipur, Rajasthan.
4. The Commandant, 10Th Battalion, R.a.c. (I.r.),
Ganganagar Road, Bikaner, Rajasthan.
----Respondents
Connected With
S.B. Civil Writ Petition No. 8998/2021
Pushpendra Singh S/o Shri Samundra Singh, Aged About 38
Years, Near F.c.i. Godown, Indira Colony, District Bikaner,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Home, Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director General Of Police, Police Department, Jaipur,
Rajasthan.
3. The Inspector General Of Police, Bikaner Range, Bikaner,
Rajasthan.
4. The Superintendent Of Police, District Bikaner, Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 9003/2021
Praveen Singh S/o Shri Sardar Singh, Aged About 34 Years, R/o
Village And Post Harsani, Tehsil Gadra Road, District Barmer,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
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(2 of 16) [CW-7656/2021]
Of Home, Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director General Of Police, Police Department, Jaipur,
Rajasthan.
3. The Inspector General Of Police, Jodhpur Range, Jodhpur,
Rajasthan.
4. The Superintendent Of Police, District Barmer, Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 9038/2021
Saroj Kanwar D/o Shri Onkar Singh Rathore, Aged About 27
Years, R/o Ward No. 15, Pandorai Basti, Chhapar, Tehsil
Sujangarh, District Churu, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Home, Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director General Of Police, Police Department, Jaipur,
Rajasthan.
3. The Inspector General Of Police, Bikaner Range, Bikaner,
Rajasthan.
4. The Superintendent Of Police, District Bikaner, Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 14593/2021
Malam Singh S/o Shri Mahavir Singh, Aged About 22 Years,
Village And Post Jodhasar, Tehsil Dungargarh, District Bikaner
(Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Home, Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director General Of Police, Police Department, Jaipur,
Rajasthan.
3. The Commissioner Of Police, Commissionerate Jaipur,
Rajasthan.
4. The Deputy Commissioner Of Police (Head Quarter),
Police Commissionerate Jaipur, Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 14675/2021
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(3 of 16) [CW-7656/2021]
Prahalad Singh S/o Shri Mangu Singh, Aged About 19 Years,
Ward No. 06, Village And Post Jhanjheu, Tehsil Shri
Dungargarh, District Bikaner, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Home, Government Of Rajasthan, Jaipur, Rajasthan.
2. The Director General Of Police, Police Department,
Jaipur, Rajasthan.
3. The Inspector General Of Police, R.a.c., Jaipur,
Rajasthan.
4. The Commandant, 10Th Battalion, R.a.c. (I.r.),
Ganganagar Road, Bikaner, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Keshav Bhati.
Mr. Shoubhag Singh for
Mr. Shambhoo Singh Rathore.
For Respondent(s) : Mr. Manish Vyas, AAG.
Mr. Kailash Choudhary.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 05/05/2022 These writ petitions have been filed by the petitioners aggrieved against orders dated 2.6.2021 (in C.W.P. No.7656/2021), 18.6.2021 (in C.W.P. No.9003/2021), 6.7.2021 (in C.W.P. No.8998/2021), 6.7.2021 (in C.W.P. No.9038/2021) and 1.10.2021 (in C.W.P. No.14675/2021), whereby, the petitioners have been called upon to produce EWS certificate for the year 2018-19 and it has been indicated that on failure to produce the certificate within 7 days, their appointments in Constable Recruitment - 2019, shall be cancelled and order dated 29.9.2021 (Downloaded on 05/05/2022 at 08:44:49 PM) (4 of 16) [CW-7656/2021] (in C.W.P. No.14593/2021), wherein, the selection of the petitioner in Constable Recruitment - 2019 has been cancelled on account of non-production of EWS certificate for the year 2018-19 and seeking a direction to consider the EWS certificate submitted by the petitioners for the purpose of reservation in General (EWS) category and declare them eligible for the post of Constable General pursuant to the advertisement dated 4.12.2019.
It is inter alia indicated in the writ petitions that petitioners applied pursuant to the advertisement dated 4.12.2019 (Annex.2) for the post of Constable - General in Economically Weaker Section ('EWS') category. The petitioners passed the requisite written test and also cleared the PST/PET conducted by the respondents. The respondents thereafter issued a select list, wherein, the names of the petitioners appeared and they were called for document verification.
In the Press Note issued in this regard, it was indicated that EWS certificate issued based on gross annual income for the year 2018-19, be produced. The petitioners appeared for document verification and it appears that the petitioners produced EWS certificates valid for the year 2020-21 and 2021-22, which were issued based on gross annual income for the financial year 2019- 20 and 2020-21, respectively. The petitioners were called upon to produce the requisite certificates by the impugned orders, calling upon them to produce certificate based on the gross annual income for the financial year 2018-19. The petitioners were required to produce the certificate within a period of 7 days, failing which, it was indicated that their selection shall be cancelled. (Downloaded on 05/05/2022 at 08:44:49 PM)
(5 of 16) [CW-7656/2021] In the case of Malam Singh (in C.W.P. No.14593/2021), the petitioner was accorded selection against the posts remaining vacant for various reasons i.e. non-joining, not reporting for document verification and those found ineligible and Press Note dated 19.8.2021 was issued inter alia calling upon the candidates to produce EWS certificate based on income of financial year 2018-19, valid for year 2019-20.
The petitioner therein also produced the certificate valid for the year 2020-21 based on gross annual income for the financial year 2019-20. On account of non-production of requisite certificate, the selection of the petitioner was cancelled by the order impugned dated 29.9.2021.
Learned counsel for the petitioners made submissions that in the advertisement dated 4.12.2019, the respondents had only indicated that at the time of PST/PET, the candidates would be required to produce the original certificate and a self attested copy of various certificates including EWS certificate, in case, the candidates belong to EWS category in prescribed format. It was nowhere indicated that the EWS certificate required should be for the financial year 2018-19 and as the petitioners produced the requisite certificate at the time of PST/PET and they were permitted to undergo PST/PET based on the said certificates, the respondents cannot insist for EWS certificates based on the income of the financial year 2018-19.
Submissions have also been made that the respondents were seeking to insist for EWS certificate for financial year 2018-19 essentially on account of the Circular / Clarification issued by the Social Justice and Empowerment Department dated 30.6.2021 (Downloaded on 05/05/2022 at 08:44:49 PM) (6 of 16) [CW-7656/2021] indicating the requirement of certificate based on the gross annual income for financial year 2018-19, which amounts to changing the terms of recruitment midstream, which is not permissible in law.
Further submissions were made that as the requisite provision providing for reservation for EWS category was introduced vide notification dated 19.2.2019 and amended on 20.10.2019, the certificate for financial year 2018-19 could not have been issued and that those appointed under the EWS category also could not have produced the requisite certificate for 2018-19 and as such, the petitioners have been discriminated against. It was prayed that the action of the respondents in insisting for EWS certificate based on income of financial year 2018-19 being wholly unjustified, certificates produced by the petitioners be held to be appropriate and the respondents be directed to accord appointment in the EWS category / the cancellation of petitioner's candidature (in C.W.P. No.14593/2021) be set aside.
When these petitions (except C.W.P. No.7656/2021) came up before the Court, Coordinate Benches of this Court inter alia directed by way of interim order that the petitioners' candidature / selection in EWS category shall not be cancelled and the petitioners were required to move an application before the competent authority to issue EWS certificate for the year 2018-19 (valid for the financial year 2019-20) based on the parameters as on 31.3.2019 and, in case, an application is filed, the competent authority was directed to issue the certificate after verifying the credentials, in accordance with law. In C.W.P. No.7656/2021, a (Downloaded on 05/05/2022 at 08:44:49 PM) (7 of 16) [CW-7656/2021] Coordinate Bench ordered that no appointment shall be made on the one post disputed by the petitioner.
Learned counsel for the respondents made submissions that the entire petition and plea sought to be raised by the petitioners is baseless and that having failed to produce the requisite EWS certificate, which is sine quo non for availing the benefit of reservation under the said category, the petitioners are ineligible.
Submissions were made that the respondents during course of document verification found that the petitioners were not in possession of the requisite certificate for availing the reservation under EWS category, granted opportunity to the petitioners to produce the requisite certificate, however, they have failed to produce the requisite certificate and as such are not entitled for any relief.
Submissions have been made that the competent Social Justice and Empowerment Department issued a specific clarification dated 30.6.2021 (Annex.R/2) with regard to the requirements of the requisite certificate for grant of benefit under EWS category, which in relation to the recruitment in question specifically required that certificate must pertain to income for financial year 2018-19 and as such, the respondents were justified in requiring the requisite certificate / rejecting the candidature of the petitioners.
The petitioners by way of rejoinder have produced certain documents, by which, the petitioners were called for document verification to indicate that no reference was made with regard to production of EWS certificate for the year 2018-19 and, therefore, the respondents cannot insist based on a purported Circular / (Downloaded on 05/05/2022 at 08:44:49 PM) (8 of 16) [CW-7656/2021] Press Note issued by the Social Justice and Empowerment Department. The petitioners have also produced advertisement for Constable Recruitment - 2021 and have indicated that in the said advertisement, the respondents have specifically indicated that they would be required to produce certificate based on income for the year 2020-21, which aspect was missing in recruitment 2019 and, therefore, the respondents cannot insist for EWS certificate based on financial year 2018-19.
Attempt was also made to indicate that the petitioners even during the period 2018-19 fall within the category of EWS, however, in absence of requisite certificate they are being deprived of benefit as EWS candidates, which also is not justified.
Learned counsel for the petitioner reiterated the submissions as noticed hereinbefore, essentially relying on the fact that the advertisement dated 4.12.2019 did not indicate requirement of EWS certificate based on income for the financial year 2018-19 and, therefore, the insistence of the respondents to produce the said certificate, amounts to changing the terms of the advertisement midstream, which is not justified.
Attempt was also made to indicate that such a certificate cannot be issued and that the respondents accorded appointment to EWS candidates pursuant to the advertisement, who had not produced the certificate based on income for financial year 2018- 19 and, therefore, the action of the respondents in this regard deserves to be set aside.
Reliance was placed on K. Manjusree v. State of A.P. & Anr.:
(2008) 3 SCC 412 and Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & Anr.: (2016) 4 SCC 754.(Downloaded on 05/05/2022 at 08:44:49 PM)
(9 of 16) [CW-7656/2021] Learned counsel for the respondents also reiterated the submissions based on the submissions contained in the pleadings.
It was insisted that the requirement of seeking EWS certificate based on the gross annual income for the financial year 2018-19 is in consonance with the requirements of notification providing for the reservation and that the submissions made by the petitioners regarding certificate based on income of the financial year 2018- 19, cannot be issued is baseless and the further submissions made regarding appointments being accorded by the respondents under EWS category in absence of certificates based on income of financial year 2018-19 are false. Learned counsel produced EWS certificate based on the gross annual income for the financial year 2018-19 (valid for year 2019-20) of three candidates by way of example for perusal of the Court i.e. of Ms. Gawari Kanwar, Mr. Amar Singh and Mr. Jethu Singh Sankhala.
Further submissions were made that despite the fact that this Court by way of interim orders required the petitioners to move an application before the competent authority to issue EWS certificate for the year 2018-19 and the authority was directed to issue such a certificate, the petitioners have failed to obtain the requisite certificate and as such they are not entitled to any relief and, therefore, the petitions deserve dismissal.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A perusal of the advertisement dated 4.12.2019 reveals that under the heading 'reservations' the requisite indications made for EWS reservation reads as under:-
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(10 of 16) [CW-7656/2021]
"¼M½ dkfeZd foHkkx dh vf/klwpuk
Øekad ,Q&7¼1½Mhvksih@,&2@2019 fnukad 20-10-2019 ds vuqlkj lkekU; oxZ ds ,sls vH;FkhZ ftudh okf'kZd vk; 8-00 yk[k :i;s ls de gS mUgsa vkfFkZd fiNM+k oxZ ds vH;fFkZ;ksa ds vH;FkhZ ekurs gq, 10% vkj{k.k ns; gSA"
The stipulation pertaining to production of certificates inter alia provided as under:-
"vH;fFkZ;ksa dks "kkjhfjd n{krk ijh{kk ¼ PET/PST½ ds le;
fuEukafdr ewy izek.k i= ,oa mudh Lo&izekf.kr (Self attested)
,d izfrfyfi izLrqr djus gksaxs &
(i) .......
(ii) .......
(iii) vH;FkhZ ;fn vuqlwfpr tkfr@tutkfr@vU; fiNMk oxZ@,echlh oxZ@vkfFkZd fiNMk oxZ ls lEcfU/kr gS rks izFke Js.kh n.Muk;d ;k led{k vf/kdkjh }kjk fu/kkZfjr izk:i esa tkjh fd;k x;k tkfr izek.k&i=A"
A perusal of the above stipulation indicates that reference was made to the notification of the Department of Personnel dated 20.10.2019 for the purpose of granting reservation under EWS category and it was required that the certificate in this regard would be produced in prescribed format.
The notification dated 20.10.2019, which inter alia provided for reservation for EWS and by way of explanation indicated the parameters for claiming the said benefit as EWS category, reads as under:-
"Reservation of vacancies for Economically Weaker Sections.- Reservation of vacancies for Economically Weaker Sections shall be 10% in direct recruitment in addition to the existing reservation. The the event of non-availability of eligible and suitable candidate amongst Economically Weaker Sections in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal Procedure.(Downloaded on 05/05/2022 at 08:44:49 PM)
(11 of 16) [CW-7656/2021] "Explanation: For the purpose of this rule 'Economically Weaker Sections' shall be the persons who are bonafide resident of Rajasthan and not covered under the existing scheme of reservations for the Scheduled Castes, the Scheduled Tribes, in the Backward Classes, the More Backward Classes and whose family has gross annual income below rupees 8.00 lakh. Family for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. The income shall include income from all sources i.e. salary, agriculture, business, profession etc. and it will be income for the financial year prior to the year of application."
(emphasis added) From the perusal of the above statutory notification, which provided for reservation for EWS and the Explanation defining EWS, it is explicitly clear that it is only the persons whose family has gross annual income below Rs.8 lakh from all sources and it will be the income from the financial year prior to the year of application, would fall in the said category.
Based on the stipulation in the notification dated 20.10.2019, on a clarification sought by the respondents from the Social Justice and Empowerment Department on 30.6.2021 (Annex.R/2), a clarification in the following form was issued by the said Department:-
"fo'k; %& dkWULVscy HkrhZ esa vkfFkZd fiNM+k oxZ dks vkj{k.k fn;s tkus ds laca/k esaA izlax %& vkidk i= Øekad u&5¼2½iq-Qksa@dfu-HkrhZ-@2019 ikVZ@742 fnukad 13-05-2021 ds laca/k esaA egksn;k] mijksDr fo'k;kUrxZr izklafxd i= ds Øe esa izfrmRrj fuEukuqlkj izsf'kr gS%& (Downloaded on 05/05/2022 at 08:44:49 PM) (12 of 16) [CW-7656/2021] 1- dkfeZd yksd f"kdk;r ,oa isa"ku ea=ky; ¼dkfeZd ,oa izf"k{k.k foHkkx½ ubZ fnYyh] Hkkjr ljdkj ds eseksjsUMe la[;k 36039@1@2019 ESTT(RES) fnukad 31-01-2019 ds vuqlkj xr fofRr; o'kZ dh fu/kkZfjr vk; ds vuqlkj pkyw o'kZ ds fy;s gh vkosnd dks Income & Asset Certificate tkjh fd;s tkus dk izko/kku gSA fofRr; o'kZ 2019&20 dh vk; ds vk/kkj ij tkjh Income & Assest Certificate o'kZ 2020&21 ds fy;s ekU; gksrk gSA o'kZ 2019&20 dh oS/krk ds fy;s fofRr; o'kZ 2018&19 dh vk; ds vk/kkj ij tkjh fd;k x;k Income & Assest Certificate ekU; gksrk gSA vr% iqfyl foHkkx }kjk tkjh HkrhZ foKfIr fnukad 04- 12-2019 ¼o'kZ 2019&20½ ds fy;s fofRr; o'kZ 2018&19 dh vk; ds vk/kkj ij tkjh o'kZ 2019&20 dk Income & Asset Certificate vuqer% gSA 2- jkT; ljdkj }kjk EWS dk Income & Asset Certificate izek.k i= tkjh djus ds laca/k esa ifji= fnukad 12-03-2019 ds vuqlkj dsoy vkWu&ykbZu tkjh Income & Asset Certificate gh vuqer% gSA Lo?kks'k.kk ds vk/kkj ij tkjh vkWQ&ykbZu izek.k i= vuqer% ugha gSA vr% lwpukFkZ izsf'kr gSA"
(emphasis supplied) The said clarification also being in consonance with the statutory requirement providing for reservation for EWS, cannot be faulted. It also cannot be said that the clarification is sought to be applied retrospectively, inasmuch as, what has been indicated in the above communication is only the requirements as indicated in the statutory notification dated 20.10.2019 (supra) governing the reservation and as such the plea sought to be raised in this regard, also cannot be accepted.
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(13 of 16) [CW-7656/2021] In the present case, the advertisement is dated 4.12.2019 and, therefore, the financial year prior to the year of application in the present case would be 2018-19 only and as such the claims made by the petitioners seeking to indicate that the advertisement did not indicate the requirements of producing EWS certificate based on income for financial year 2018-19 is ex facie incorrect.
Once the advertisement as quoted hereinbefore, specifically makes a mention of notification dated 20.10.2019 and requires candidates to be belonging to EWS category as per the said notification and the said notification requires, the requisite income for the financial year prior to the year of application, no fault can be found in the insistence of the respondents for the certificate based on financial year 2018-19.
Further, the reliance placed on the Clause pertaining to production of certificate and the fact that the same does not indicate that certificate based on financial year 2018-19 is required to be produced, is of no avail to the petitioners as said Clause, quoted hereinbefore, also requires certificate in prescribed format and once the notification dated 20.10.2019 indicates eligibility on income for the financial year prior to the year of application, the 'prescribed format' would essentially mean a certificate based on income of financial year 2018-19.
The submissions made by counsel for the petitioners that the requirements of the respondents in insisting for certificate based on financial year 2018-19 amounts to changing the requirements midstream, is on its face baseless as the indication in the advertisement is explicit i.e. eligibility based on notification dated (Downloaded on 05/05/2022 at 08:44:49 PM) (14 of 16) [CW-7656/2021] 20.10.2019, which as noticed, would require in the present case, a certificate based on gross annual income for the year 2018-19.
The reliance placed on judgments in the case of K. Manjusree (supra) and Ram Kumar Gijroya (supra) have no application to the present case, inasmuch as, in the case of K. Manjusree (supra), the selection process was undertaken by not providing for any minimum marks for interview, which provision was made midstream, which was held to be not permissible in law, which is not the situation in the present case, as the stipulation is contained in the advertisement itself.
Similarly, the case of Ram Kumar Gijroya (supra), is a case which pertains to point of time for production of the requisite certificate, the same has nothing to do with the present case i.e. doing away with the requisite certificate.
As noticed hereinbefore, Coordinate Benches of this Court granted interim orders in favour of the petitioners, requiring them to move an application before the competent authority to issue EWS certificate for the year 2018-19 (valid for the year 2019-20) based on the parameters as on 31.3.2019 and the competent authority was directed to issue the certificate in accordance with law.
While finally hearing the matters, learned counsel for the petitioners were specifically put the query as pursuant to the interim orders what transpired, to which, it was submitted by counsel for the petitioners that they had approached the authorities, however, the authorities orally denied to issue the certificate, after which, the petitioners have not taken any steps for enforcement of the order passed by the Court. (Downloaded on 05/05/2022 at 08:44:49 PM)
(15 of 16) [CW-7656/2021] It would be seen that the interim order granted by the Court was in mandatory form, insofar as, the competent authority was concerned. The petitioners have failed to produce any material to indicate that pursuant to the interim orders they moved applications before the competent authorities and the competent authorities refused to issue the certificate to the petitioners.
Even if the submissions in this regard is accepted, looking to the mandatory nature of interim order passed by the Court, the petitioners in case of such refusal, should have immediately taken steps for enforcement of the directions issued by the Court, which action for the reasons best known to the petitioners, has not been taken and, therefore, having failed to take the benefit of the interim order granted by the Court for issuance of the requisite certificate in accordance with law, the petitioners, even otherwise, are not entitled to any relief, in absence of the requisite certificate based on the gross annual income for financial year 2018-19.
It may be noticed that relevant authorities for issuance of certificates in case of the petitioners are different i.e. SDO Bikaner, SDO Sujangarh (Churu), SDO Sridungargarh (Bikaner) and SDO Gadraroad (Barmer). To make an omnibus allegation by all the petitioners regarding the different competent authorities, who were mandated by this Court by way of interim order to issue the requisite certificate in accordance with law, that they orally denied to issue the requisite certificate, appears to be only a ruse for inaction on part of the petitioners despite grant of interim orders of present nature, which clearly shows the disinclination of the petitions in getting / producing the requisite certificates as mandated in law.
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(16 of 16) [CW-7656/2021] A submission was made, as noticed hereinbefore, that the certificate as sought cannot be issued and that the respondents have accorded appointments under EWS category despite the fact that candidates don't have the requisite certificates as desired by the respondents, which submission also apparently is baseless in view of the certificates produced by the respondents for perusal of the Court, wherein, not only that the requisite certificates have been issued by the competent authorities, appointments have been granted only based on such requisite certificates by the respondents and as such the making of incorrect allegations, cannot be countenanced.
In view of above discussion, the requirement indicated by the respondents to produce the EWS certificate based on gross annual income for financial year 2018-19 (valid for year 2019-20) being in consonance with the notification dated 20.10.2019, cannot be faulted and on account of failure of the petitioners to produce the requisite certificate during course of document verification / even after the petitioners were called upon to produce the same, the petitioners are not entitled to any relief / the rejection of selection of the petitioner in CWP No.14593/2021, cannot be faulted.
Consequently, the writ petitions filed by the petitioners have no substance. The same are, therefore, dismissed.
(ARUN BHANSALI),J Sumit Sharma/-
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