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2001 DIGILAW 1902 (RAJ)

State of Rajasthan v. Smt. Kirti

2001-12-07

ARUN KUMAR, JAGAT SINGH

body2001
JUDGMENT 1. - These appeals are directed against the judgment of the learned Single Judge dated 23rd May, 1997 whereby the writ petition filed by the respondent challenging the action of the appellant in not considering the preferences indicated by the respondent in her application which she was required to submit after declaration of the result of the written examination was allowed. The learned Single Judge while allowing the writ petition directed the Rajasthan Public Service Commission (hereinafter referred to as the Commission') to consider of the case of the respondent in the light of Rule 15(3) of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962 (hereinafter referred to as 'the Rules'). Further, a direction was issued to the effect that if the merit of the respondent was above the candidate who had been offered appointment, she be considered for such speciality.Briefly, the facts are that the Commission issued an advertisement for recruitment to the Rajasthan State Civil Services viz. Rajasthan Administrative Service, Rajasthan Cooperative Service and Rajasthan Police Service etc. The respondent applied in pursuance of the said advertisement. She qualified in the preliminary examination which was held in August, 1991 and her result was declared on 23rd February, 1992. By a communication dated 16th March, 1992, the respondent was asked to appear for the interview on 8th April, 1992. It is significant to note here that through this communication the respondent was required to fill in a form. She was further required to take the original form alongwith her at the time of interview and submit it to the concerned authorities. The respondent was specifically instructed not to send the application form by post. In this second form the respondent changed her preferences. In the original form submitted by the respondent in pursuance of the advertisement she was required to give certain preferences for the Service she wanted to join. The second form to be submitted at the time of interview also contained a column regarding preferences for the Service. The respondent changed her preferences. On account of this change in the preferences the respondent was ultimately not selected and this action of the appellant was challenged by way of writ petition. 2. Thus the main issue for consideration in this appeal is whether the respondent could change her preferences in the facts and circumstances of the case. The respondent changed her preferences. On account of this change in the preferences the respondent was ultimately not selected and this action of the appellant was challenged by way of writ petition. 2. Thus the main issue for consideration in this appeal is whether the respondent could change her preferences in the facts and circumstances of the case. The appellant has mainly relied on Rule 10(4) of the Rules and on the basis of the said provision it is argued that a candidate is allowed to change his/her preferences only within 30 days of the date of declaration of the result of the written examination and not beyond that time limit. Since the respondent failed to comply with the said rule inasmuch as she did not apply for change of preference within 30 days, she was not entitled to change her preference as originally given. The respondent challenged the Rule containing limitation of 30 days. However, without pronouncing on the validity of Rule 10(4) the learned Single Judge granted relief to the respondent primarily on the basis of facts on record. 3. The learned counsel for the respondent has stressed that a column regarding preferences is contained in the original application form to be filled in in pursuance of the advertisement. In the second application form which the candidates are required to fill in after declaration of result of the written examination again there is a column where the candidates have to indicate their preferences. There is no stipulation in the second application form that the candidates must stick to the preferences given in the original form nor does the form contain any indication about the 30 days' limitation contained in Rule 10(4). Therefore, it is submitted on behalf of the respondent that the respondent was led to believe that by requiring her to indicate her preferences all over again in the second application form, the authorities were permitting change of preferences otherwise there would be no need to have the column regarding the preferences in the second application form. In any case it is submitted that if the preferences could not be changed the second application form would have contained a stipulation to this effect. In any case it is submitted that if the preferences could not be changed the second application form would have contained a stipulation to this effect. As a matter of fact the learned counsel justified the existence of a column regarding the preferences in the second application form on the ground that after the declaration of the result of the written examination a candidate knows his/her position in merit and is in a better position to make assessment about which to join. It is in the fitness of things that if a candidate has performed better, he or she should be in a position to exercise choice regarding service by changing the preferences. This is pointed out as the justification for the existence of the column regarding preferences in the second application form. 4. Coming to Rule 10(4) it is to be noted that the said Rule as it stood after the 1982 amendment did not permit any change of preferences. In 1984 the Rule was again amended so as to contain the provision regarding change of preferences within 30 days of declaration of the result of written examination. According to the respondent she was not aware of the Rule permitting change of preferences within 30 days of declaration of result of written examination. It was submitted that although in the original application form it was stated that the candidate could obtain copy of the Rules from the Government Press, yet when the respondent approached the Press for a copy of the Rules she was given only copy of Rules as in the year 1978. These Rules are of no use because the Rules have undergone many amendments thereafter. Therefore, it was contended on behalf of the respondent that the respondent was not in a position to know the Rule about 30 days' limitation. In the rejoinder affidavit filed by the respondent to the counter affidavit of the State filed in the writ petition she has given details about the efforts made by her to obtain a copy of the latest Rules which she failed to get. The respondent pleaded complete absence of knowledge about the amended Rules. In the rejoinder affidavit filed by the respondent to the counter affidavit of the State filed in the writ petition she has given details about the efforts made by her to obtain a copy of the latest Rules which she failed to get. The respondent pleaded complete absence of knowledge about the amended Rules. Neither in the writ proceedings nor in the appeal before this Court any effort was made on behalf of the State to rebut this contention of the respondent that the amended Rules were not available and, therefore, she could not be supposed to have knowledge thereafter. The learned counsel for the appellant only argued that the Rules are notified in the official gazette and all concerned are supposed to know about the same. This reply is not satisfactory. Of course, Rules are notified in the official gazette but it is well known that the notifications take a long time to be published and thereafter it takes long even to obtain copies thereof. In the present case we need not import this fact in view of the specific pleadings by the respondent to the effect that in the year 1992 also what she could obtain from the Government Press was only a copy of the 1978 Pules and not the latest Rules and there is no rebuttal to this. 5. After giving careful consideration to the rival contentions we are of the considered opinion that in the facts and circumstances of the case it cannot be presumed that the respondent had knowledge about the amended Rule containing a limitation of 30 days within which a candidate could change his/her preferences after declaration of the results of written examination. In this connection further it is to be noted that in the original application form there is no stipulation that a candidate will not be allowed to change his/her preferences. Secondly, in the application form required to be submitted at the time of interview there was again a column for indicating preference. With this column there is no condition that the preferences have to be the same as in the original application form nor there is any indication that preferences as given in the original application form cannot be changed. Secondly, in the application form required to be submitted at the time of interview there was again a column for indicating preference. With this column there is no condition that the preferences have to be the same as in the original application form nor there is any indication that preferences as given in the original application form cannot be changed. Therefore, we are inclined to accept the contention of the learned counsel for the respondent that the presence of column regarding preferences in the second application form led the respondent to believe that she could change her preferences. More so, for the reason that the existence of the column regarding preferences in the second application form shows that it is really meant to give a chance to the candidates to change their preferences based on their performance in the written examination. Thus, even if there is a confusion and the real intention was that a candidate should not be allowed to change preferences, the confusion is a creation by the appellants themselves and the benefit must go to the candidate i.e. the respondent. The appellants have led the respondent to believe that she could change her preferences by virtue of the fact that the second application form again contained a column regarding the preferences. The respondent, therefore, indicated her desire to change her preference in the second application form. She cannot be made to suffer or penalised on this account. 6. It is to be noted that the case pertains to a competitive examination. It is not a qualifying examination. In a competitive examination the effort is to get the best candidates as per their performance in the examination. When the emphasis is on performance it appeals to reason that candidates should be given choice regarding which Service they have to join based on their performance in the competitive examination. Therefore, the provision for change of preferences by a candidate on the basis of his or her performance in the written examination appears to be fully justified. 7. In the facts of the present case the time limit contained in Rule 10(4) cannot be enforced in the case of the respondent. Since our decision turns on the facts of the case, we do not consider. it necessary to refer to the authorities cited by the learned counsel for the parties which are based on general principles. 8. 7. In the facts of the present case the time limit contained in Rule 10(4) cannot be enforced in the case of the respondent. Since our decision turns on the facts of the case, we do not consider. it necessary to refer to the authorities cited by the learned counsel for the parties which are based on general principles. 8. The appeals thus have no merit and the same are hereby dismissed, leaving the parties to bear their respective costs.Appeals dismissed. *******