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2014 DIGILAW 982 (RAJ)

Jai Kishan Soni v. State of Rajasthan

2014-04-22

VINEET KOTHARI

body2014
JUDGMENT : 1. This writ petition pertains to selection or appointment of the petitioner in pursuance of Advertisement dated 09.04.2007 for the post of Sub-Inspector (Armed Police), Platoon Commandar (Sub-Inspector, RAC), Sub-inspector, (Mewar Bhil Corps or MBC) and in the back ground of two judgments rendered by the coordinate bench of this Court in the case of Mangla Ram Bishnoi v. State of Rajasthan decided on 30.06.2010 since reported in 2011 (1) WLC 148 and decision in the case of Ramnarayan Bhanwaria v. The State of Rajasthan and Ors., S.B. Civil Writ Petition No. 3705/2009 decided on 20.09.2011 a copy which is place on record as Annex. 3. 2. The petitioner participated in the said selection process and vide Annex.1 mark-sheet, he was declared successful with 284 marks and given merit rank No. 118 for S.I. (AP), 118 for P.C. (RAC), and 111 for S.I. (MBC). The method of scaling of the marks was adopted by the respondent - RPSC in the said selection process for the subject Hindi and for the said subject, both raw marks and scaled marks were given in the said marks sheet. If scaled marks are taken into account the marks of the petitioner in the interview as well as written examination will be 284 and if raw marks are taken into account, his total marks would be 285, since, he was given raw marks in Hindi at 102 and scaled marks at 101. 3. The petitioner according to his preference given for Armed Police category - first category in the said Advertisement dated 09.04.2007 was appointed vide Annex-2 dated 12.08.2011 as Sub-Inspector (Armed Police) after the decision of this Court in the case of Mangla Ram Bishnoi (supra) was rendered by this Court, in the said judgment, the learned Single Judge has held that the candidates belonging to the Backward Classes scoring higher marks than the last candidate in General Category cannot be denied appointment in General Category merely, because they availed the benefit of age relaxation on the ground of their belonging to such Backward Classes. After the said judgment rendered on 30.06.2010, the petitioner was given such appointment as Sub-inspector (AP) on 12.08.2011 after being given training in the said category by the respondent - Department vide Annex.2. 4. After the said judgment rendered on 30.06.2010, the petitioner was given such appointment as Sub-inspector (AP) on 12.08.2011 after being given training in the said category by the respondent - Department vide Annex.2. 4. Thereafter, another judgment in the case of Ramnarayan Bhanwaria (supra) was rendered by another learned Single Judge of this Court on 20.09.2011 in which, it was held that scaling of marks was illegal and was contrary to the Supreme Court decision in the case of Sanjay Singh v. U.P. Public Service Commission, Allahabad reported in JT 2007 (2) SC 534 and therefore, revised merit list for such selection processes taking only the raw marks into account for Hindi Subject should be prepared and appointment to those persons, who got higher raw marks than the persons already appointed, may be offered such appointment. However, the learned Single Judge took care to hold that selection processes already taken place and appointment already offered shall not be disturbed which should save the appointment of the present petitioner also as Sub-Inspector (Armed Police) vide Order Annex.2 dated 12.08.2011, a month before the judgment was rendered in the case of Ramnarayan Bhanwaria (supra) on 20.09.2011. 5. It would also be relevant to quote relevant portion of the said judgment in the case of Ramnarayan Bhanwaria (supra) for ready reference : "Having considered all the facts and circumstances of the case, I am an absolute agreement with learned counsel for the respondent-Commission that though the adoption of scaling in the examination concerned was not in accordance with law in view of the judgment of Hon'ble Supreme Court in the case of Sanjay Singh (supra), but appointments now cannot be given to the petitioners against the vacancies advertised under the notification dated 9.4.2007 being filled-in in the year 2008-2009 itself. The relief claimed by the petitioners can certainly be given to them by adopting the same mode as adopted by the Hon'ble Supreme Court in the case of Sanjay Singh (supra). The candidature of the petitioners can certainly be considered for appointment against the future vacancies. It is the position accepted by the respondent that the future vacancies are available with them. Accordingly, these petitions for writ are accepted. The formulate of scaling applied by the respondent while determining merit of the candidates, who faced Sub-Inspector Police Combined Competition Examination, 2007 is declared illegal. It is the position accepted by the respondent that the future vacancies are available with them. Accordingly, these petitions for writ are accepted. The formulate of scaling applied by the respondent while determining merit of the candidates, who faced Sub-Inspector Police Combined Competition Examination, 2007 is declared illegal. However, this declaration shall not have any adverse effect to the process of selection already taken place and completed. The candidature of the petitioners shall be considered for appointments to the post of Sub-Inspector against the future vacancies and if any of the petitioner is having higher raw marks than the raw-marks in written examination, the last selected candidate as a consequent to the Examination of 2007, his/her candidature would be considered for appointment in his own category, and on consideration, if he/she stands in merit, appointment be accorded to him/her on the post concerned on or before 1.12.2011. The petitioners if selected, they shall be treated as the recruits against the vacancy year pertaining to that the advertisement dated 9.4.2007 relates and their seniority shall be reckoned accordingly. The relief granted in these petitions for writ shall remain confined to the petitioners only. Sd/- (GOVIND MATHUR), J" 6. It was thus made clear by this Court in the case of Ramnaryan Bhanwaria (supra) that the appointment in pursuance of revised merit list prepared on the basis of raw marks only and ignoring the scaled marks for Hindi Subject will be given against the future vacancies so as not to disturb the appointments already made. It was thus made clear by this Court in the case of Ramnaryan Bhanwaria (supra) that the appointment in pursuance of revised merit list prepared on the basis of raw marks only and ignoring the scaled marks for Hindi Subject will be given against the future vacancies so as not to disturb the appointments already made. However, vide Annex.5, impugned order dated 22.3.2013, purportedly giving affect to the aforesaid two judgments of this Court, reshuffling of the candidates from the category of Platoon Commander (RAC) to Sub-inspector (Armed Police) and vice versa from Sub-inspector (Armed Police) to Platoon Commander (RAC) was made and in the second part of the said order dated 22.3.2013, 16 persons including the present petitioner at serial No. 14 was shifted from Sub-Inspector (AP) to Platoon Commander (RAC) and being aggrieved by said shifting back of the petitioner from Sub-Inspector (Armed Police) to Platoon Commander RAC), the petitioner preferred this writ petition in this Court on 15.4.2013 and while issuing the notices to the respondents, by ad-interim order, the respondents were directed not to change the category of the petitioner, if any person, employed in Rajasthan Police in pursuant to the directions given in the case of Ramnarayan Bhanwaria (supra) is having less raw marks than the petitioner in the category of Sub-Inspector (Armed Police). 7. Mr. Sushil Bishnoi, learned counsel appearing for the petitioner submitted that the respondent - Department has not only mis-understood and mis-applied the judgment of this Court in the case of Ramnarayan Bhanwaria (supra) which towards end of the judgment said that the relief granted to the petitioners before the Court in the case of Ramnarayan Bhanwaria (supra) will be restricted only to those petitioners who are before the Court in that batch of writ petition and not to others, whereas the judgment of learned Single Judge, Mr. Sushil Bishnoi submitted that to the extent, it held that only raw marks have to be taken into account following the Supreme Court decision in the case of Sanjay Singh v. U.P. Public Service Commission (supra) was judgment-in-rem and was to be applied uniformly to all the persons and not only to the petitioners before the Court and only the relief by way of offering appointment in pursuance of revised merit list to be prepared on the basis of raw marks was to be restricted to the petitioners before the Court at that point of time. This difference between the judgment-in-rem and judgment-in-persona to the extent of relief restricted to the petitioners before the Court, has been misunderstood by the respondents and while appointing the petitioners before this Court in the case of Ramnarayan Bhanwaria and others (supra), the present petitioner and others like him are sought to be shifted back from the category of Sub-Inspector (Armed Police) to the category of Platoon Commander (RAC) against their preference and the same was contrary to their appointment given under order Annex.2 dated 12.08.2011 even before the judgment of this Court in the case of Ramnarayan Bhanwaria (supra) was rendered by the learned Single Judge on 20.09.2011. 8. Mr. Sushil Bishnoi, therefore, submitted that since these 3 posts of Sub-Inspector (Armed Police), Platoon Commander (RAC) and Sub-Inspector, Mewar Bhil Corps are different cadre posts as per Schedule -I of the Rajasthan Police Subordinate Service Rules, 1989. Merely, because a common examination for these posts was held together and simultaneously under the Advertisement dated 09.04.2007, since the eligibility qualifications are common to all the 3 cadre posts, being Graduate in Arts, Science and Commerce, but that cannot permit the respondents to inter-change or shift the category of persons so appointed in one of the categories as per his own merit, purportedly to give affect to the relief granted to the petitioners before this Court in the case of Ramnarayan Bhanwaria (supra) and therefore, he submitted that the order Annex.5 dated 22.3.2013 to the extent it changes the category of the present petitioner from Sub- Inspector (AP) to the Platoon Commander (RAC) is illegal and deserves to be quashed. 9. Per contra, Mr. Anil Bissa for the State and Mr. 9. Per contra, Mr. Anil Bissa for the State and Mr. Tarun Joshi for the RPSC submitted that the petitioner has even admitted in para 3 of the writ petition that he was selected for the posts of Platoon Commander (RAC), but he was appointed as Sub-Inspector (AP) vide order Annex. 2 dated 12.08.2011 and therefore, after his appointment as Sub-Inspector (Armed Police), reshuffling or transfer from the category of Sub-Inspector (Armed Police) to the Platoon Commander (RAC) is not illegal and since the same was done to give appointment to the persons in pursuance of judgment of learned Single Judge of this Court in the case of Ramnarayan Bhanwaria (supra) rendered on 20.09.2011, therefore, the petitioner cannot claim any preference or continuation in the category of Sub-Inspector (AP) and the impugned order Annex. 5 dated 22.3.2013 deserves to be upheld. Mr. Anil Bissa, however, admitted that for these 3 categories, there are different cadre posts and the trainings for these 3 posts are different. He also brought to the notice of the Court that in one of the similar matters in the case of Leela Ram v. State of Rajasthan, S.B. Civil Writ Petition No. 5551/2013 decided by the coordinate Bench of this Court on 11.02.2014, the learned Single Judge has allowed the petitioner to make a representation to the respondents in this regard against shifting of his category from Sub-Inspector (Armed Police) to the Platoon Commander (RAC) and therefore, the present writ petition may also be disposed of with similar directions to the respondents to decide such representation even within time frame. 10. On the Court question about the fate of such representation in that case of Leela Ram (supra), the learned counsel for the respondents were however, unable to give any definite answer as to the disposal of the said representation by the respondents and on the contrary Mr. Susil Bishnoi, learned counsel for the petitioner informed the Court that such representation has not been decided so far as per his information. 11. I have heard the learned counsels at length and perused the relevant record, Rules and the judgments cited at the bar. 12. It is true and undisputed that these 3 posts are separate and different cadre posts as per Schedule-I of the Rules of 1989. 11. I have heard the learned counsels at length and perused the relevant record, Rules and the judgments cited at the bar. 12. It is true and undisputed that these 3 posts are separate and different cadre posts as per Schedule-I of the Rules of 1989. A perusal of said Schedule-I would indicate that Section-I thereof encadres the Armed Police, Civil Police, Intelligence Branch and General Duties (other than Operators/Technicians) of the Tele-Communications Directorate in which Senior post of Inspector, Sub-Inspector, Assistant Sub-Inspector and Head Constables are given, while junior post of Constable is given. In Section II - Mewar Bhil Corps, the senior posts of Inspector, Sub-Inspector, Head Constable are given, while the junior post of Constable is given. In Section-III - Police Tele-Communications, the posts of Inspector, Inspector (Tele-Communication), Sub-Inspector, Supervisor Operator/Technician, Sub Inspector (Operator), Sub-Inspector (Cipher), Sub-Inspector (Technician), Sub-Inspector (Fitter/Electrician), Assistant Sub-Inspector (Operator), Assistant Sub-Inspector (Cipher), Assistant Sub-Inspector (Technician), Assistant Sub-Inspector (Fitter/ Electrician), Head Constable (Technician), Head Constable other than Operator/Technician, Head Constable (Operator) are given, while the junior posts of Constable (Technician/Operator) and Constable other than Operator/Technician are included. In Section IV - Rajasthan Armed Constabulary, senior posts of Company Commander (Inspector), Platoon Commander (Sub-Inspector), Head Constable and Junior post of Constables are included The other columns of said Schedule-I provide for the source of direct recruitment, qualification for direct recruitment, post from which appointment by promotion is to be made, minimum qualification and experience required for promotion and remarks. 13. Thus, the said Schedule-I makes it clear that these 3 different posts for which selection process are held under the Advertisement dated 09.07.2004 are separate cadre posts. Rule 23 of the Rules of 1989 is also quoted below for ready reference which empowers the Commission to hold such selection processes and make recommendations to the appointing authorities : "23. Recommendations of the Board/Commission:- The Board/Commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post of concerned, arranged in order of merit, and forward the same to the Director General-cum-Inspector General of Police, who shall in his turn intimate to the Appointing Authority concerned, the name of the candidates in order of merit as mentioned in the list, upto the number of vacancies available. The Board, Commission shall not recommend candidates, who have secured less than 36% marks in interview and 45% marks in the aggregate. The Board, Commission shall not recommend candidates, who have secured less than 36% marks in interview and 45% marks in the aggregate. Provided that the Recruitment Board/Commission may recommend candidates belonging to the Scheduled Caste and Scheduled Tribes, who though failing to obtain the minimum marks, are declared by the Board to be suitable for appointment to the service with the regard to the maintenance of efficiency of administration, if the candidates secure 30% marks in interview and 40% marks in the aggregate." 14. Thus, the contention of the learned counsel for the petitioner that these three posts are different cadre posts and merely because common selection process/written tests was held, the same can not be inter-changeable or inter-transferable posts since different training is given for the candidates to the appointed in different categories or different posts has substance and therefore, the appointment of the petitioner vide Annex. 2 dated 12.8.2011 in the category of Sub-Inspector (Armed Police) according to his raw marks at 285 was perfectly in order and justified. That was not even intended to be disturbed by the judgment of learned Single Judge of this Court in the case of Ramnarayan Bhanwaria (supra) as quoted above. The said judgment will show that the learned Single Judge took all care to save the appointments already made and the appointment now to be offered by way of relief granted to the petitioners before this court in the batch of writ petitions in the case of Ramnarayan Bhanwaria (supra) was to be given against the future vacancies only without disturbing the selection and appointments already made. 15. The judgment-in-rem to the extent of declaring scaling of marks as illegal in terms of Supreme Court decision in the case of Sanjay Singh v. U.P. Public Service Commission (supra) was definitely to be applied uniformly to all the categories. The respondents have apparently misunderstood this legal principle and while giving relief to the petitioners before this Court in the case of Ramnarayan Bhanwaria (supra), they have appointed these persons in the category of Sub-Inspector (Armed Police) without taking a note of the fact that their raw marks are less than the persons already appointed in that category like the present petitioner and as the learned counsel for the petitioner has shown from the impugned order Annex. 5 dated 22.3.2013 that persons later on given appointment under order Annex. 5 dated 22.3.2013 that persons later on given appointment under order Annex. 5 dated 22.3.2013 though have raw marks 281, 280 and 277 and like that, less than the raw marks of 285 obtained by the petitioner, have been appointed in the category of Sub-inspector (Armed Police), while to make way for them the persons like the present petitioner with higher raw marks have been shifted in the second part of the order Annex. 5 dated 22.3.213 from Sub-Inspector (Armed Police) to Platoon Commander (RAC) category against their preference and desire and also the fact that they were so selected and rightly appointed in the category of Sub-inspector (Armed Police) vide order Annex. 2 dated 12.06.2011. 16. Thus the purported exercise by the respondents to give effect to the judgment of learned Single Judge in the case of Ramnarayan Bhanwaria (supra) is apparently even contrary to the judgment itself, but the revised list made by the Respondents taking into account only the raw marks was ignored in order to give appointment to the petitioners before this Court in Ramnarayan Bhanwaria (supra) misconstruing the last part of the order that the relief is restricted to the petitioners only, the respondents have taken it as if all those petitioners before this Court in the case of Ramnaryan Bhanwaria (supra) on the basis of their raw marks have to be offered the appointment irrespective of the fact that the persons with higher raw marks are already appointed in the cadre post of Sub-Inspector (Armed Police) like the present petitioner and petitioner's cadre was changed in the second part of the impugned order Annex.5 dated 22.3.2013 while he was shifted from the category of Sub-Inspector (Armed Police) to the category of Platoon Commander (RAC). Even, in rem part of the judgment in the case of Ramnarayan Bhanwaria (supra) where the learned Single Judge following the Supreme Court Judge in the case of Sanjay Singh v. U.P. Public Service Commission (supra) held that scaled marks have to be ignored as scaling in the subject like Hindi was illegal but appointments were to be offered without disturbing the appointments already made and only against the future vacancies taking into account the raw marks of such petitioners only and relief to that extent was restricted only to the petitioners before this Court at that point of time. This mis-application of the judgment by the respondents is precisely the issue sought to be corrected by the present petitioner in the present writ petition. 17. Saving of appointment of the petitioner was already done by the learned Single Judge of this Court in the case of Ramnarayan Bhanwaria (supra) as quoted above, but that finding of learned Single Judge seems to have been forgotten by the respondents while passing the impugned order Annex. 5 dated 3905/2013 specially para 2 thereof and thus adversely effecting the present petitioner. The learned Single Judge in that case has also directed that the appointment now to be offered in pursuance of the judgment in the case of Ramnarayan Bhanwaria (supra) rendered on 20.09.2011 has to be given against the future vacancies and therefore, there was no question of changing the cadre of the present petitioner in the purported exercise of giving effect to the judgment of this Court in the case of Ramnarayan Bhanwaria (supra). Therefore, this writ petition in the considered opinion of this Court deserves to be allowed. 18. Accordingly, the present writ petition is allowed and impugned order dated 22.03.2013 Annex.5 qua the present petitioner is quashed. No order as to costs. A copy of this order be sent to the parties concerned forthwith.