Rajasthan High Court - Jodhpur
Surendra Singh Ranawat vs State Of Rajasthan on 20 November, 2019
Author: Dinesh Mehta
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
1. D.B. Review Petition (Writ) No. 121/2019
Karan Singh Ranawat S/o Ray Singh Ranawat, Aged About 22
Years, Resident Of- Village Ranawat Ka Guda, Tehsil -
Nathdwara, District- Rajsamand.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Home
Department, Jaipur
2. Director General Of Police, Jaipur.
3. Superintendent Of Police, Udaipur
4. Superintendent Of Police, Rajsamand.
5. Dheeraj Bagora S/o Krishna Kant Bagora,, Aged About 26
Years, Resident Of - Village - Nathdwara, Tehsil -
Nathdwara, District - Rajsamand (Raj.)
6. Sangeeta Gurjar S/o Madhav Lal,, Aged About 20 Years,
Resident Of - Village - Dovada, Tehsil - Amet, District-
Rajsamand (Raj.)
----Respondents
Connected With
2. D.B. Review Petition (Writ) No. 120/2019
Mahendra Kumar Gurjar S/o Gangaram Gurjar, Aged About 25
Years, Resident Of Korsina, Tehsil Phulera, Dist. Jaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Department
Of Home Affairs, Government Of Rajasthan, Jaipur
(Raj.).
2. Director General Of Police, Jaipur, Headquarter, Jaipur
(Raj.).
3. Superintendent Of Police, Rajsamand, District
Rajsamand (Raj.).
4. Inspector General Of Police Cum Chairman, Selection
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Board For Constable Recruitment, Udaipur (Raj.).
----Respondents
Connected With
3. D.B. Review Petition (Writ) No. 122/2019
Surendra Singh Ranawat S/o Sohan Singh Ranawat, Aged
About 24 Years, Resident Of The Aostiya Gowshala, Kankroli,
District Rajsamand.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Home
Department, Jaipur.
2. Director General Of Police, Jaipur, Police Headquarter,
Jaipur.
3. Inspector General Of Police, Jaipur, Police Headquarter,
Jaipur.
4. Police Commissioner- Cum- Chairman Selection Board
For Constable Recruitment, Udaipur (Raj.).
5. Superintendent Of Police, Rajsamand (Raj.).
6. Kamlesh Kumawat S/o Laxmi Lal Kumawat, Aged
About 24 Years, Resident Of 219, Naya Akhada Road,
Near Mukhraji Choraha, Kankroli, District Rajsamand.
7. Dinesh Chandra Dholi S/o Ram Lal Dholi, Aged About
25 Years, Resident Of Village Jato Ka Dudaliya, Tehsil
Deogarh, District Rajsamand.
8. Mukesh Barhath S/o Ram Lal, Aged About 25 Years,
Resident Of Village Jato Ka Dudaliya, Tehsil Deogarh,
District Rajsamand.
----Respondents
For Petitioner(s) : Mr. Shreyansh Mardia
For Respondent(s) : Mr. Sandeep Shah, AAG
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HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Judgment Reserved on :: 08/11/2019 Pronounced on :: 20 /11/2019 Per Dinesh Mehta, J.
1. These review petitions, arise out of separate orders, however passed on one single day, i.e., 22.5.2019, by a Division Bench of this Court, of which, one of us (Dinesh Mehta, J) was a member.
2. Many appeals relating to Physical Efficiency Test of Constable Recruitment, were decided by separate orders, considering the difference in facts, particularly with respect to the date, time and place of Physical Efficiency Test, which were held for recruitment to the post of Constable. While deciding the appeals, this Court considered the finding arrived at by the learned Single Judge, whereby the writ petitions filed by the review petitioners were dismissed.
3. For the purpose of deciding these review petitions, the facts which need to be narrated briefly, are as under:-
3.1. The review petitioners - writ petitioners preferred writ petitions before this Court inter alia contending that on the scheduled date when their Physical Efficiency Test(s) were held, the condition(s) of the track was/were not ideal and hence, they were not able to perform to the best of their potential. It was alleged that it rained immediately prior/ during the test, for which the ground/ track became wet/ swampy.
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(4 of 15) [WRW-121/2019] 3.2. During the pendency of the writ petitions, learned Single Judge appointed a learned counsel of this court to be a Commissioner, who went through the video recording of the run with respect to the track conditions of various dates and time, when the Physical Efficiency Tests were conducted. 3.3. As neither of the parties had filed any objection with respect to the report submitted by the Commissioner, learned Single Judge decided the bunch of cases on the basis of the report so furnished by the Commissioner and found that except in case of candidates who appeared in the test at Kota- where there were heavy rains on 08.09.2018 at 12:48 pm, in all other cases, the conditions of track were reasonably firm and dry. 3.4. A finding came to be recorded by learned Single Judge that the track conditions did not affect the performance of the candidates. As a result of such finding, writ petitions of those petitioners, who appeared in Physical Efficiency Test at Kota out of the bunch of cases, were allowed and respondents were directed to hold fresh Physical Efficiency Test for such petitioners at Rajasthan Police Training Centre, Mandore Road, Jodhpur. 3.5. It is pertinent to note that said bunch of cases decided by learned Single Judge on 27.11.2018 was led by SB Civil Writ Petition No.13731/2018 (Revat Ram Meghwal Vs. State of Raj. & ors.).
3.6. The candidates, whose writ petitions were dismissed by learned Single Judge, preferred special appeals under Rule 134 of the Rajasthan High Court Rules. Some of such appeals came to be considered by a Division Bench of this Court on 30.01.2019. (Downloaded on 20/11/2019 at 08:58:06 PM)
(5 of 15) [WRW-121/2019] 3.7. While hearing a group of appeals led by DB Special Appeal (W) No.1907/2018 (Ravi Kumar Khatik Vs. State of Raj. & Ors.), the Division Bench of this Court was of the view that learned Single Judge was not justified in drawing the distinction between the conditions when the track looked swampy, muddy potholed and other conditions such as when the track was muddy, slightly muddy and wet. The Division Bench, thus allowed the appeals and set aside the order of learned Single Judge, dismissing the writ petitions. Relevant paras no.8 and 9 of the said judgment are reproduced hereunder:-
"8. A look at the data detailed by the learned Single Judge gives a vital information which appears to have been overlooked by the learned Single Judge. At Jaipur, on 29.08.2018 the Physical Efficiency Test was conducted in the morning and in the evening. The condition of the track as of 08:46 A.M. is the same of
04.02 P.M. and this shows the level to which the track had got affected. At Kota, Physical Efficiency Test was conducted at 09:00 A.M., 12:00 Noon and 02:00 P.M. on 07.09.2018, 08.09.2018 and 09.09.2018. The data shows that on all three dates the track was affected due to rainfall. The date of the Physical Efficiency Test held on 10.09.2018 at 09:00 A.M. and 10:00 A.M. shows same position. Physical Efficiency Test conducted in Kota on 11.09.2018 and 13.09.2018 also shows the same position. At Udaipur, Physical Efficiency Test conducted on 07.09.2018 and 08.09.2018 at 11:00 A.M. and 12:00 P.M. likewise shows the track to be affected due to rainfall.
9. Under the circumstances the nuanced distinction drawn by the learned Single Judge as noted above is too tenuous. There is enough material to show that on all the dates the tracks were badly (Downloaded on 20/11/2019 at 08:58:06 PM) (6 of 15) [WRW-121/2019] affected due to rainfall and merely because at a given time extent of damage to the track was more vis-a-vis other occasions would be no ground to drawn the distinction as has not been drawn by the learned Single Judge."
3.8. Some of the appeals came up for consideration before a co- ordinate Bench of this Court, which upon considering the facts appertain, rejected the appeals filed by the unsuccessful writ petitioners. It will be appropriate to make reference of a detailed judgment passed by the Bench on 22.05.2019 in case of Shrawan Kumar Choudhary Vs State of Rajasthan [D. B. Special Appeal (W) No. 154/2019].
3.9. The review petitioners before us are those, whose appeals were dismissed by the Division Bench on their own facts as the track was not found wet/muddy.
3.10. It is noteworthy that on the day when the special appeals filed by the present review petitioners were dismissed, the Bench had heard the appeal filed by the State against the basic judgment rendered in case of Revat Ram Meghwal (supra), which was allowed by learned Single Judge. Pertinent it is to note, that order in said appeal being DB Special Appeal (W) NO.124/2019 (State of Raj. & Ors. Vs. Revat Ram Meghwal) was reserved on such date, though it was pronounced on 31.07.2019. 3.11. The Division Bench allowed the appeal filed by the State and held that the learned Single Judge was not justified in issuing directions to conduct Physical Efficiency Test afresh as the facts and figures did not show manifest unfairness or arbitrariness. The Division Bench while relying upon its decision dated 22.05.2019 (Downloaded on 20/11/2019 at 08:58:06 PM) (7 of 15) [WRW-121/2019] rendered in case of Shrawan Kumar Choudhary (supra) held that learned Single Judge was not justified in undertaking the exercise of going into the status / conditions of the ground.
4. Seeking review of the orders passed by Division Bench in their respective appeals, Mr. Shreyansh Mardia, learned counsel for the review petitioners, contended that the Division Bench while rejecting their appeals has not considered earlier decision dated 30.01.2019, passed by a Co-ordinate Bench in the case of Ravi Kumar Khatik Vs. State of Raj. & Ors. It was argued that the decision (dated 30.01.2019) of the Coordinate Bench which was earlier in point of time, was binding upon the subsequent Division Bench and thus, a contrary view ought not to have been taken and the appeals should have been allowed, following the Division Bench decision dated 30.01.2019, instead of being dismissed.
5. In support of his contention aforesaid, learned counsel relied upon judgment of Hon'ble the Supreme Court rendered in the case of State of Bihar Vs. Kalika Kuer & Ors., reported in (2003) 5 SCC 448, particularly the following part thereof (para 5 & 10) :-
"5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsburry's Laws of England (Fourth Edition) Vol.26: Judgment and Orders Judicial Decisions as Authorities (pages 297-298, Para 578) we find it observed about per incuriam as follows:
"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction while covered the case before it, in which case it must decide which case to follow Young v. Bristol Aeroplane (Downloaded on 20/11/2019 at 08:58:06 PM) (8 of 15) [WRW-121/2019] Co. Ltd. (1944) 1 KB 718 : (1944) 2 ALI ER 293. In Hudderfield Police Authority v. Waton (1947) KB 842 : (1947) 2 All ER 193. or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force Young v. Bristol Aeroplane Co. Ltd (1944) 1 KB 718 : (1944) 2 All ER 293. See also Lancaster Motor Col. (London Ltd. v. Bremith Ltd. (1941) 1 KB 675 For a Divisional Court decision disregarded by that court as being per incuriam, See Nicholas v. Penny (1950) 2KB 466, 1950 2 All ER 89.
A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, Morvelle ltd. v. Wakeling (1955) 2 QB 379 :
(1955) 1 ALL ER 708 C. or because the court had not the benefit of the best argument, Bryers v. Candadian Pacific Streampships ltd. (1957) 1 QB 134, (1956) 3 All ER 560 CA Per Singleton LJ, affd Sub nom.
Candadian Pacific Streampship Ltd. v. Bryers (1958) AC 485, (1957) 3 ALL ER 572 and, as a general rule, the only cases in which decision should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority A. and J. Mukclow Ltd. v. IRC (1954) Ch. 615. (1954) 2 All ER; 508 CA, Morelle Ltd. v. Wakeling (1955) 2 QB 379, (1955) 1 All ER 708 CA See also Bonsor v.
Musicians Union (1954) Ch. 479 : (1954) 1 ALL ER 822 CA where the per incuriam contention was rejected and on appeal to the house of lords although the House overruled the case which cound theCourt of Appeal, the House agreed that court had been bound by it see (1956) AC 104 : (1955) 3 All ER 518 HL Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of lords, the Court of Appeal must follow its previous decision and leave the (Downloaded on 20/11/2019 at 08:58:06 PM) (9 of 15) [WRW-121/2019] House of Lords to rectify the mistake. Williams v. I Glasbrook Bros Ltd (1947) 2 All ER 884 CA Lord Goadard CJ in Hudersfield Police Authorities case observed that where a case or statute had not been brought to the Court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
10. Looking at the matter, in view of what has been held to mean by per incuriam, we find that such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment, while saying that decision in the case of Ramkrit Singh (supra) was rendered per incuriam. On the order hand, it was observed that in the case of Ramkrit Singh (supra) the Court did not consider the question as to whether the consolidation authorities are courts of limited jurisdiction or not. In connection with this observation, we would like to say that an earlier decision may seems to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the letter bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways - either to follow the earlier decision or render the matter to a larger Bench to examine the issue, in case (Downloaded on 20/11/2019 at 08:58:06 PM) (10 of 15) [WRW-121/2019] it is felt that earlier decision is not correct on merits. Though hardly necessary, we may however, refer to a few decisions on the above proposition."
6. Mr. Sandeep Shah, learned Addl. Advocate General appearing on behalf of the State submitted that the Division Bench decision dated 30.01.2019 rendered in the case of Ravi Kumar Khatik (supra) was passed on the peculiar facts obtaining in such case(s) and that the Division Bench had allowed the appeals filed by such appellants solely because the Division Bench felt that learned Single Judge was not justified in carving out distinction between different situations based upon relative wetness of the track. The said Division Bench was of the view that when the Commissioner had clearly reported the occurrence of rain and conditions of the track being wet/muddy, learned Single Judge ought to have allowed all the petitioners irrespective of extent of damage to the track or wetness.
7. He submitted that as the judgment dated 30.01.2019 had been passed on the facts involved in those appeals and similarly the order under review has been passed having regard to the facts obtaining in these cases.
8. He further argued that the judgment dated 30.01.2019 rendered in the case of Ravi Kumar Khatik (supra) does not lay down any legal principle, which was required to be followed by the subsequent Division Bench, hearing appeals filed by the present review petitioners.
9. Mr. Shah further pointed out that the State's appeal in the case of Revat Ram (supra), emanating from the writ petition (Downloaded on 20/11/2019 at 08:58:06 PM) (11 of 15) [WRW-121/2019] which was allowed by learned Single judge (granting an opportunity to re-run) itself has been allowed by the Division Bench and the basic judgment has been reversed. The Division Bench has recorded a finding that even if going by the Commissioner's report, more than 55% of the candidates were able to complete their run within the stipulated period. Having found so, the Division Bench held that it could not have been held that the condition of track was so bad, so as to render conducting of Physical Efficiency Test on that day to be unreasonable or arbitrary. Such comparative study or analysis was neither done by the learned Single Judge nor by the Division Bench deciding Ravi Kumar Khatik's case.
10. He added that Division Bench of this Court while deciding the appeal filed by the State has held, as a principle that the Court ought not to have interfered in such matters. In other words submission of learned AAG has been that earlier judgment (Ravi kumar Khatik) was on facts, whereas principle has been propounded by the subsequent Division Bench in Revant Ram's case. In contradistinction to the judgment in case of Revant Ram (supra), the Division Bench judgment in case of Ravi Kumar Khatik (supra) cannot be said to be a precedent.
11. Heard learned counsel for the parties and perused the relevant material, including the judgments cited and those passed by the Coordinate Bench(es).
12. Much emphasis has been laid by learned counsel for the petitioners upon the judgment of this Court in the case of Ravi Kumar Khatik (supra) decided on 30.01.2019. A perusal of the (Downloaded on 20/11/2019 at 08:58:06 PM) (12 of 15) [WRW-121/2019] said judgment leaves no room for ambiguity that the basic premise for which said appeal along with connected appeals were allowed by the Division Bench was, that according to the Division Bench, learned Single Judge's approach of distinguishing the cases out of the group of cases on the basis of relative condition of the ground was not proper. The following excerpt from the judgment is indicative of the reasons for which those appeals (Ravi Kumar Khatik) were allowed:-
"... ... ... the nuanced distinction drawn by the learned Single Judge as noted above is too tenuous."
13. It is pertinent that the Division Bench in its order dated 30 th January 2019 further observed that because in the given time, extent of damage to the track was more vis-a-vis other occasions, cannot be a ground to draw the distinction, as has been drawn by learned Single Judge.
14. In our opinion, the Co-ordinate Division Bench while accepting the appeal filed by Ravi Kumar Khatik (supra) was of the view that regardless of the extent of damage to the track, as a result of the rain, the learned Single Judge was required to provide an opportunity to the concerned candidates to take part in a fresh run.
15. As against this, while passing the judgment under review on 22.05.2019 itself, in the case of Shravan Kumar Choudhary Vs. State of Raj. & Ors., (DB Special Appeal Writ No.154/2019), this Court after considering the material, which was placed before the learned Single Judge, found that large number of candidates many candidates who participated in the run were able to qualify and (Downloaded on 20/11/2019 at 08:58:06 PM) (13 of 15) [WRW-121/2019] the percentage of successful candidates was more or less equal to the percentage of success, when the track was dry in form. It will not be out of place to reproduce relevant part of the judgment dated 22.05.2019 passed by Coordinate Bench, of which one of us (Dinesh Mehta, J) was a member, in the case of Shravan Kumar Choudhary (supra), which runs as under:-
"7. The State in its appeal contends that whether the track was muddy or slippery, as to permit a competitive run for the purpose of recruitment at all, was disputed. It was pointed out that none of the writ petitioners had completed the mandatory run of 13 rounds. The State argues that out of 309 candidates, 159 candidates in-fact participated in the PET, of which 82 qualified. In support of this argument, the State relies upon the additional affidavit filed in a companion case (Suresh Vishnoi V/s State of Rajasthan & Ors. D.B. Civil Special Appeal (W) No.228/2019), which was heard but later on withdrawn by the candidate. The said affidavit annexes tabular statements that disclose facts and details relating to each stadium and the PET conducted in respect of various Commissionerate and battalion, which was resorted to by the State Police for recruitment of police constables.
8. The State argues that out of the 151 candidates who participated in the PET, no less than 82 (or 54.9%) qualified and were declared successful. Therefore, the approach and direction of the learned Single Judge were not justified, in ordering a fresh PET.
9. Counsel for the writ petitioners urged this court not to upset the orders of the Single Judge, stating that the conduct of a fresh PET provided a level playing filed to the candidates, who could not (Downloaded on 20/11/2019 at 08:58:06 PM) (14 of 15) [WRW-121/2019] qualify in the previous physical test, especially the 5 km run, because the conditions at the time of the test, and the venue were in the most unconducive conditions. This resulted in arbitrariness. Counsel emphasized that the mere circumstance that some candidates qualified, or that the petitioners participated during the event, did not render the recruitment process any less illegal or discriminatory. Therefore, the directions impugned by the learned Single Judge were sound, and did not call for interference."
16. That apart while deciding the appeal filed by the State in the case of Revat Ram Meghwal (supra), this Court, on appreciation of the facts, has unequivocally held that there was no manifest unfairness or arbitrariness in the case of the petitioners and after all, they like others (both successful and unsuccessful candidates) participated, some qualified, some could not, but a sizeable number of participants qualified. It was also observed by the Division Bench that had the conditions been better, even the ones who succeeded could have still done better and thus, by giving right to run again, two uncomparables cannot be compared.
17. As such since the appeal filed by the State against basic judgment of learned Single Judge, vide which some of the writ petition were allowed, itself has been set aside, the Division Bench judgment dated 30.01.2019 passed by Coordinate Bench of this court is of little help to the review petitioners.
18. We cannot lose sight of the fact that when the Division Bench allowed some of the appeals (Ravi Kumar & Ors.) on 30.01.2019, State's appeal was not before the Court or in other words, there was no challenge to the judgment of Revant Ram Meghwal (Downloaded on 20/11/2019 at 08:58:06 PM) (15 of 15) [WRW-121/2019] (supra). The contention of the State that learned Single Judge was not required to go into the conditions of the ground, was not before the Division Bench; whereas while passing the order dated 22.05.2019, subject matter of present review petitions, the Court was alive to the stand of the State that notwithstanding the inferior track conditions, the holding of Physical Efficiency Test was not arbitrary or capricious as sizeable number of candidates, who participated in the run were successful.
19. So far as judgment cited by learned counsel for the petitioners is concerned, the principle is well settled that the subsequent Division Bench should follow the earlier judgment rendered by the co-equal bench; but since the judgment rendered in case of Ravi Kumar Khatik (supra) was rendered on its own facts and did not lay down a law of general application, in our opinion, the same was not binding.
20. The judgment under review, thus, does not require to be reviewed, recalled or modified. No manifest or error apparent on the face of record has been pointed out.
21. The review petitions, therefore, fail.
(DINESH MEHTA),J (SANGEET LODHA),J
ArunV/-
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