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Rajasthan High Court · body

1994 DIGILAW 783 (RAJ)

Dinesh Sharma v. State of Rajasthan

1994-09-27

ARUN MADAN

body1994
Honble MADAN, J. — This writ petition under Art. 226 of the Constitution of India has been filed by the petitioners in the matter of Rajasthan Computer States and Subordinate service Rules, 1992 and in the matter of advertisement, dated 31.7.193 issued by the department of computers published in Rajasthan Palrika, dated 6.8.1993 for the enforcement of petitioners fundamental rights under Arts. 14, 16 and 26 of the Constitution of India. (2). Brief facts giving rise to this writ petition are that petitioner No.l passed his secondary examination conducted by Board of Secondary Education, Rajasthan, Ajmer in the year 1978(Annx.2). Thereafter petitioner No.l qualified Higher Secondary Examination and joined B Com. classes at Sakambari Mahavidhyalaya, Sambherlake affiliated to the State University. After qualifying B.Com. examination in the year 1983 (Annx,3) petitioner No. 1 joined an institute of computer training at Udaipur for certificate course in computers and Data Entry Operation and theory. The petitioner successfully qualified the said course in November, 1993 (Annex.4). Petitioner No.l worked as Data Entry Operator at Sulabh Data Centre, Ajmer Road, Jaipur for a period of two years between 1st June 1989 to 18.07.1991 and an experience certificate was issued in this regard by the said institute on 20.07.1988 (Annex.5). (3). Likewise petitioner No.2 qualified secondary examination from the Board of Secondary Education, Rajasthan, Ajmer in the year 1980 (Annexs. 7 &8 respectively). After passing higher secondary examination the petitioner took his B.A. examination from University of Usmania through correspondence course and passed the same in the year 1991. The said petitioner subsequently took computer course training for Data Entry Operators from the H.I. Technical Computer Centre, Jaipur in January, 1989 (Annex.9) and obtained experience for a period of two years while working as Data Entry Operator in an institute at Jaipur. (4). On 1st October,1991 Deputy Secretary and officiating Director, Department of Computers on the basis of advertisement published in the Rajasthan Patrika of the said date for appointment to various posts of Data Entry Operators, advertised vacancies for the said posts out of which four were open for competition of the candidates falling in the general category. According to the qualification and experience as required for the post of Data Entry Operators it was provided in the said advertisement that the prospective candidate as on 1.1.1992 should not be less than 18 years and not more than 30 years of age. According to the qualification and experience as required for the post of Data Entry Operators it was provided in the said advertisement that the prospective candidate as on 1.1.1992 should not be less than 18 years and not more than 30 years of age. With regard to the educational qualification, it was provided that the candidates must be a graduate from any University or any degree equivalent to that from any institution recognised and affiliated by the Government and also having minimum practical experience with speed of 8000 words per hour. Pursuant to that advertisements the petitioners appeared in the interview in 22nd 24.12.1991 but their result was not declared by the respondents for a period exceeding 1 l/2years for reasons best known to them. Thus the petitioners were kept in dark about their results. (5). Subsequently another advertisement was issued by the respondents on 31.07.1993 which was published in Rajasthan Patrika, dated 6.08.1993, whereby respondent No.2 sought to cancel the entire process undertaken for appointment to the posts of Data Entry Operator in the department of computers for the reason that in view of promulgation of the Service Rules under the proviso to Art. 309 of the Constitution of India, referred to as the Rajasthan Computer State and Subordinate Service Rules, 1992 (for short "the Rules of 1992), as a result of which the earlier advertisement dated 1-10-1991 stood cancelled. The second advertisement was issued on the basis of newly promulgated Service Rules; whereas when the first advertisement was issued there were no rules in force regulating the service conditions of the employees. (6). In the second advertisement the total number of posts which were advertised for Data Entry Operators were 169 out of which 30 posts were reserved for SC and 22 posts for ST and remaining 117 posts were for general category candidates; in the pay-scale of Rs.1400-2600. With regard to educational qualification it was provided that the candidates should be graduate in Art, Science, Commerce, Economics, Maths with one years practical experience in Computers. Apart from the above, with regard to the age, it was provided that as on 1.1.1994 a candidate should not be less that 21 years and not more than 33 years of age. With regard to the age suitable relexation in accordance with the rules, was to be made for SC/ST/Ladies/Ex. serviceman and State employees. Apart from the above, with regard to the age, it was provided that as on 1.1.1994 a candidate should not be less that 21 years and not more than 33 years of age. With regard to the age suitable relexation in accordance with the rules, was to be made for SC/ST/Ladies/Ex. serviceman and State employees. It was further provided that the candidature of the candidates who had appeared in the interviews in the basis of earlier advertisement, dated 1.10.1991 would stand cancelled, since the service rules were not promulgated earlier and the said rules came into force w.e.f. 5.01.1993. (7). Being aggrieved was a result of cancellation of their candidature in terms of the impugned advertisement dated 31.7.1993 the petitioners have filed the present writ petition in this court claiming an appropriate relief of being appointed on the post of Data Entry Operators in the department of Computers as they were eligible in terms of the first advertisement, dated 1.10.1991 and that they had appeared at the test and interview for the post of date Entry Operators. (8). In reply to the contentions advanced by the learned counsel for the petitioners learned counsel for respondents No. 1 an 2 controverted the contentions advanced on behalf of the petitioners by specifically alleging that the petitioners do not have any cause or reason to challenge the advertisement, dated 31.7.1993 inasmuch as there is no vested right with the petitioners for appointment of public office, issued service were not framed and in absence of the rules the respondents were within their right to cancel the said advertisement dated 1.10.1991. It was further contended that if the petitioners had been communicated the results on the basis of interview held earlier, then the legal right would have accrued to them for appointment on the post of date Entry operators, but in absence of such communication and also in absence of communication with regard to any appointment letters for the said posts, the petitioners are not entitled to claim any vested right posts, the petitioners are not entitled to claim any vested right for appointment to the said posts because there was no com-munication to the petitioners with regard to any appointment letters and, therefore, the action of the respondents in cancelling the first advertisement is neither arbitrary not violative of petitioners fundamental rights under Arts.14,16 and 26 petitioners of India as alleged. It was further contented on behalf of the respondents that the first advertisement dated 1.10.1991 was prior to the notification of the Rajasthan Computer state and subordinate Service Rules, 1992 hence in absence of service rules which were not in force at the relevant time the respondents respondents reserved the right to cancel the earlier advertisement the said rules came into force vice notification dated 5.12.1992 vide GSR No.4l issued by the department of personnel and administration reforms in exercise of the powers conferred by proviso to Art. 309 of the Constitution of India. However, it has not been disputed by the respondents that the petitioners had applied as per notification, dated 1.10.1991 and the provisional cards for appearing in speed test were issued but without having any rules and regulations for the post of Data Entry Operators. Since of 1992 came into force W.E.F. 5.1.1993i.e., the date of publication in Rajasthan Patrika the respondents had decided to cancel the incomplete process of recruitment in the interest "of the "candidates appointed on the post of date entry operators. It is further contended, as such the petitioners are not entitled to be appointed on the post of Data Entry Operators in the light of Rules of 1992 and that the cancellation of examinations/advertisement, dated 1.10.1991 having already been cancelled by the respon-dents since it was in absence the Rules, the second advertisement dated 31.7.93 published on 6.8.1993 was in accordance with the Rules ofl992 and as such the claim of the petitioners with respect to appointment on the post of Data Entry operators is not challengable in law. It was further submitted that it would not be proper and further submitted that it would not be proper an justified to facilitate only the petitioners, since so many individuals/applicants had not applied on the basis of the second advertisement because of the age factor, i.e., having completed 33 years of age in pursuance of the advertisement dated and , therefore to say that the petitioners had been excluded on the ground of age bar, is of no consequence. (9). (9). After hearing the arguments and the contentions advanced at the Bar by the learned counsel for the parties and after examining the documents tendered on the record, I am if the considered opinion that the petitioners have no vested rights to appointment in a public office in absence of the rules which were not in force as on the date of first advertisement dated 1.10.1991 and, therefore, the respondents were well within their rights to have cancelled the said advertisement on the" basis that second advertisement, dated 31.7.1993 which was published on 6.8.1993 in accordance with the Rules of 1992 which came into force w.e.f. 5.1.1993 I am further of the opinion that as on the date of first advertisement the Government had not completed the process for appointment to the post of date Entry operators in pursuance of the said advertisement inasmuch there were no rules in force governing the conditions of service of Data Entry Operators at the relevant time and the respondents were thus justifies in cancelling incomplete process of recruitment in the interest of candidates to be on the said post in future. It is not the case of the petitioners alone having been discriminated inasmuch as many individuals who might have been affects on the ground of age bar, did not make any grievance and it was at the time of scrutiny when the petitioners had again applied in pursuance of the advertisement, dated 31.7.1993 it was found that the petitioners are not eligible to be considered for appointment on the post of Data Entry operators under the Rules of 1992 on the ground of age bar and, therefore the petitioners having voluntarily applied to the department again tin pursuance of the second advertisement dated 31.7.1993/6.8.1993 petitioners are now estopped from alleging to the contrary. The petitioners having crossed upper age limit of 33 years as on the date of second advertisement dated 1.7.1993, they had become ineligible to be considered for appointment on the post of Data Entry operators and have no vested right of appointment to public office (10) I am fortified in my view from the judgment of the Apes Court in the matter of Jai Singh Delal & ors. Vs. State of Haryana & Anr. (1), wherein the challenge made by the petitioners was to Rules 5 o the Punjab civil Services (Executive Branch) Rules . 1930. Vs. State of Haryana & Anr. (1), wherein the challenge made by the petitioners was to Rules 5 o the Punjab civil Services (Executive Branch) Rules . 1930. In the above case it was held tat the requirement under the proviso to Rule 5 to consult Public Service Commission on the methods of special recruitment while Government can take independent decision to resort or not to resort to special recruitment and hence the Government without consulting the commission can withdraw earlier decision regarding special recruitment and the Government the anology Punjab General Clauses Act, 1898 under S. 19 has inherent powers to do so. It was held further by the Apex Court : — "The law is settled that even candidates selected for appointment have no state government at a subsequent date not to fill up the posts or to resort to fresh selection according to revised criteria. In the presents case, the selection was yet to be made by the Commission. Therefore the petitioners cannot even claim that they were selected for appointment by the commission The selection process had no9t been completed and before that the state Government reviewed its-earlier decision and decided it revise the eligibility criteria for appointment. It was further held: "The state is under no legal duty to full up all or any of the vacancies by appointing candidates selected for that purpose Albeit the state must act in good faith and must no exercise its power malafide or in an arbitrary manner. The Constitution Bench referred with approval the earlier decision of this court in Subhash Chander. Therefore the law is settled that even candidates selected for appointment have no right to appointment and it is open to the state Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. In the present case, the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. In the present case, the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. The selection process had not been completed and before, it" could be completed the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment, It is, therefore clear frome the settled legal position that the petitioers had no right to claim that the selection process once started must be completed and the Government cannot refuse to make appointments of candidates duly selected by the HPSC." In Mohan Kumar Singhania & Ors. Vs. Union of India and Ors (2), the Apex Court while under art 14 of the constitution of India need not be perfect and that the rules of cllassification can be framed for securing requisite standard of efficiency in service. In this case the challence was to validity of second proviso introduced vide notification dated 13.12.86) governing conditions of Civil services. The question which had arisen before the Apex Court was regarding the validity of second proviso to Rule 4 of the Civil Service Rules.It was held that the validity of second proviso to rules had to be tested in the context of circumstances in which was enacted. The rationale underlying the course at the training centre is that the officers of Civil Series must acquire understanding of constitutional, social economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the services to which they are appointed. It was held by the Apex Court that the second proviso cannot be held to be bad on the ground that the authorities have stepped out of. the constitutional limits in issuing the notification inserting the impugned proviso and that it was not been placed before the houses for parliament the Appex Court further held: — "There is no substance in the contention that the restriction under the second proviso that the candidates should severe from the service, if he intends to appear for the third time, after he has been allocated and appointed to a service is unjust or unrcasnable. There is no question of severance of status as the restriction impored by the impugned proviso cannot be said to be unjust, unreasonable or arbitrary or change of any policy and moreover, the spirit of the main rule is not in any way disturbed." (12). It is thus clear from the above that there is no vested right with any individual to claim a right for appointment to any public office in absence of any letter of appointment and in this case since the petitioners had merely applied in pursuance of an earlier advertisement, dated l.10.1991 for the post of Data Entry Operators which was subsequently cancelled, since the process of selection was incomplete and subsequently the petitioners had again applied for the second time in pursuance of second advertisement, dated 31.7.1993, the petitioners by their own conduct, act and acquiscence had foregone their rights to claim such appointment since they had become over-age on the basis of scrutiny of their applications as referred to above. (13). Consequently this writ petition has no force and is dismissed without any order as to cost.