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2017 DIGILAW 1127 (RAJ)

Bhanwar Singh v. State of Rajasthan

2017-05-02

NIRMALJIT KAUR

body2017
JUDGMENT : NIRMALJIT KAUR, J. The prayer in the present petition is to declare the petitioner as successful in Phase-II of Stenographer Competitive Examination-2011 in accordance with the amendment introduced in the Rajasthan Subordinate Offices Ministerial Services Rules, 1999 and Rajasthan Secretariat Ministerial Services Rules, 1970. 2. The Rajasthan Public Service Commission invited applications for recruitment to the post of Stenographers by way of competitive Examination, 2011 through Advertisement dated 06.09.2011. The Scheme of examination under Paragraph 7 of the Advertisement consisted of Phase-I and Phase-II. The Phase-I consisted of Paper-I of General Knowledge, General Science and General Knowledge of Rajasthan and Paper-II of General Hindi and English. The Phase-II of examination was that of a test of efficiency in both English and Hindi Stenography. It was also provided in Note 2 to the Clause 5 of the Advertisement that the reservation policy and the selection process shall be subject to amended Rules and directions issued by the State Government. The petitioner being eligible applied in pursuance to the said advertisement. He duly cleared the Phase-I of the competitive examination and qualified to participate in Phase-II of the competitive examination. The petitioner was issued Admit Card for participating in Hindi Stenography and Typing Efficiency Test. He qualified the Hindi Stenography and thereafter he was allowed to appear in English Stenography Test. He could not qualify the English Stenography Test and therefore, was declared as “fail” and was not selected. Out of total 606 posts, only 75 candidates were selected in the Secretariat Services and only 38 candidates were selected for Subordinate Services. As per Proviso to Rule 29 of the Rajasthan Subordinate Offices Ministerial Services Rules, 1999, the Commission could not recommend any candidate who has failed to obtain a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination of Stenographer. Thus, only those candidates who had secured a minimum of 36% marks in each of the paper of Phase-II of the competitive examination were declared to have passed the examination. Meaning thereby, that a candidate was required to be proficient in both Hindi and English Stenography. Thus, only those candidates who had secured a minimum of 36% marks in each of the paper of Phase-II of the competitive examination were declared to have passed the examination. Meaning thereby, that a candidate was required to be proficient in both Hindi and English Stenography. The State Government realized that the same was a folly as only handful of the candidates could clear the competitive examination and number of posts remained vacant in spite of eligible stenographers either in Hindi or in English being available. Realizing the folly, the Rule 29 of the Rules of 1999 and proviso to Rule 22 in the Rules of 1970 were amended on 14.03.2016. The requirement of “minimum of 36% marks in each of the paper of Phase-II” was substituted by the expression “a minimum of 36% marks in the paper opted in Phase-II”. Thus, a candidate was required to secure minimum of 36% of marks only in one of the two subjects, either in Hindi or in English. 3. In view of the amendment, learned counsel for the petitioner while praying that the petitioner should be declared successful in terms of the amended Rule introduced vide Notification dated 14.03.2016, submitted that since the amendment in the recruitment Rules were introduced when the selection process was still in currency, the same should be given effect to and all candidates who had cleared the Stenography in one of the two subjects should be declared successful and appointment should be accordingly granted. Secondly, the advertisement itself clearly provided that the selection process shall remain subject to any changes made by the State Government in the reservation policy and in the Rules of recruitment and since the selection process is still under the process as the RPSC has not recommended any names for appointment to the State Government, the respondents are liable to apply the amended Rules to the selection process. 4. Reply as well as the Additional Affidavit have been filed by the State. 5. As per the additional affidavit, the selection process for the post of Stenography was held in pursuance to the Advertisement dated 06.09.2011 as per the Rules applicable at that point of time i.e. in view of the Notification dated 5.7.2010. The amendment made vide notification dated 14.03.2016 is not applicable with retrospective effect and shall be applied only to the vacancies advertised after 14.3.2016. The amendment made vide notification dated 14.03.2016 is not applicable with retrospective effect and shall be applied only to the vacancies advertised after 14.3.2016. The Note 2 to the Clause 5 of the Advertisement is no more applicable as the RPSC had already declared the result for Phase-II of Stenographers Competitive Examination on 21.10.2014 by which 113 candidates were provisionally declared successful in view of eligibility conditions laid down in Notification dated 05.07.2010. The result of examination held in the year 2014 for the post of Stenographer has been declared and the process for appointment is complete. Therefore, the Notification is not applicable to the vacancies or the selection in pursuance to the Advertisement of the year 2011. It was further submitted in the additional affidavit that now the RPSC had declared 113 candidates as successful, the recommendation was already sent to the State Government and the appointments too have already been granted. Thus, the selection process being over, the subsequent amendment cannot be given effect to these selections. 6. It is not in dispute that as per the subsequent Notification dated 14.03.2016, the earlier Rules i.e. Rajasthan Subordinate Offices Ministerial Services Rules, 1999 and Rajasthan Secretariat Ministerial Services Rules, 1970 stood amended and as per the amended Rules, a candidate is required to pass only one of the two subjects i.e. either English or Hindi. The only dispute is as to whether the amended Notification dated 14.03.2016 could be applied to the vacancies or the selections in pursuance to the advertisement dated 06.09.2011. 7. It is a well settled proposition of law that eligibility and qualifications have to be taken into consideration on the date the vacancies occurred and not on any subsequent date as held by the Apex Court in the case of Y.V. Rangaiah v. I. Sreenivasa Rao reported in (1983) 3 SCC 284 : AIR 1983 SC 852 . Similarly as per the decision of the Supreme Court in State of Rajasthan v. R. Dayal reported in JT 1997 (3) SC 198, the post which fell vacant prior to the amendment of the rules would be governed by the original rules and not by amending rules. However, the above settled proposition does not mean that the State Government cannot recall the requisition sent to the RPSC to select the candidates for appointment in case the rules are amended meanwhile. However, the above settled proposition does not mean that the State Government cannot recall the requisition sent to the RPSC to select the candidates for appointment in case the rules are amended meanwhile. This proposition of law emerges from the fact that a candidate has no right to claim that the selection process once started must be completed and the State Government has the right to refuse the appointment of a candidate duly selected by the RPSC. Hence, there is no dispute with the law laid down by the Apex Court in the case of Jai Singh Dalal v. State of Haryana reported in 1993 AIR SCW 632 holding that: “10. Assuming (without deciding) that the withdrawal of the earlier notifications by the subsequent notification dated December 30, 1991 does not, stricto sensu, attract the provision of S. 19 extracted above, counsel for the appellants overlooks the fact that since the appellants have no legal right to insist on their selection and appointment to the vacant posts in question, the mode of arresting the process recedes in the background as the State Government could have informed the HPSC not to proceed with the selection process as it desired to revise the norm for appointment. Once it is realised that merely because the State Government had sent a requisition to the HPSC to select candidates for appointment did not create any vested right in the candidates called for interviews, regardless of the fact that the selection process had reached an advanced stage, it does not matter whether the selection process is arrested by cancelling the earlier notifications by another notification or by a mere communication addressed to the HPSC. Even if the HPSC were to complete the process and select candidates, such selection by itself would not confer a right to appointment and the Govt. may refuse to make the appointment for valid reasons. At best the Govt. may be required to justify its action on the touchstone of Art. 14 of the Constitution.” 8. Similarly, in the case of Dr. P.K. Jaiswal v. Ms. Debi Mukherjee reported in (1992) 2 SCC 148 : AIR 1992 SC 749 , it was held that the Commission cannot insist on going ahead with selection as the Government has withdrawn the advertisement on account of the amendment of the recruitment rules. 9. Similarly, in the case of Dr. P.K. Jaiswal v. Ms. Debi Mukherjee reported in (1992) 2 SCC 148 : AIR 1992 SC 749 , it was held that the Commission cannot insist on going ahead with selection as the Government has withdrawn the advertisement on account of the amendment of the recruitment rules. 9. In the case of State of Punjab v. Arun Kumar Aggarwal reported in 2007 AIR SCW 3262 as relied on by the learned counsel for the petitioner, the Apex Court upheld the decision of the Government to fill up the old vacancies as per the new Rules on account of a conscious decision taken by the Government. 10. However, the situation here is totally different. In the present case, the selection is over. The RPSC had already recommended the names and as per the Additional Affidavit filed by the State, the RPSC had completed the entire process on 21.10.2014 and declared 113 candidates to be successful. The recommendations were duly sent to the State Government and the appointments have already been granted. In these circumstances, no mandamus can be issued to the State Government to apply the amended Rules to an Advertisement of which the selection is over and the appointments have already been made. 11. This Court may also note that number of writ petitions and appeals [DB Special Appeal (Writ) No. 1379/2014 (Saurabh Kumar Kothari v. RPSC)] and other connected matters were filed assailing the selection process for the post of Lower Division Clerk and the validity of Proviso to Rule 29 of the Rules of 1999 which envisages that only such of the candidates could be recommended by the Commission who have obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination as being unreasonable and had no nexus with the object sought to be achieved. All the appeals against the order of the learned Single Bench and the writ petitions assailing the validity of Rule 29 were dismissed vide order and judgment dated 03.02.2016 with the following directions: “The Commission is directed to prepare a fresh merit list of all the candidates who have participated in the combined competitive examination, 2011 held for the post of Lower Division Clerk, pursuant to advertisement dt. 17.05.2011 and the corrigendums issued in furtherance thereto and obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II of the competitive examination and upload such fresh merit list on its official website and after taking note of the objections, if any, within seven days thereafter recommend the names of successful candidates to the State Government keeping in view their order of merit, as per the number of advertised vacancies and the State Government is directed to process the same thereafter and give appointments to the selected candidates after due compliance of the requirement of law & the scheme of Rules. The process shall be completed within 90 days. At the same time, State Government is at liberty to cancel the appointments of such of the candidates who failed to qualify with a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II or were not eligible to appear in Phase-II of the competitive examination held for the post of Lower Division Clerk under the scheme of -23- D.B. Special Appeal (Writ) No. 1379/2014 & 15 connected matters Rules, after due compliance & in accordance with law.” 12. No doubt, the Government went ahead and amended the Rule 29 of the Rules of 1990 and the proviso to Rule 22 of the Rules of 1997, however, at the same time, no conscious decision has been taken by the Government to apply the same to the selection process in pursuance to the Advertisement dated 06.09.2011. In fact, the amendment has come almost after the matter was put at rest and the judgment dated 03.02.2016 passed in the case of Saurabh Kumar Kothari v. RPSC (DB Special Appeal (Writ) No. 1379/2014) attained finality qua the selection in pursuance to this very advertisement in hand. Hence, no mandamus can be issued directing the State Government to apply the Rules amended vide Notification dated 14.03.2016 to the selection process in pursuance to the Advertisement dated 06.09.2011. 13. Accordingly, the present writ petition is dismissed being devoid of merit.