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2017 DIGILAW 2763 (RAJ)

Babu Lal S/o Chhagan Lal v. State Of Rajasthan

2017-12-12

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT ORDER Pushpendra Singh Bhati, J. —After hearing the matter on 05.12.2017, learned counsel for the petitioner had sought permission for furnishing two orders of Division Bench and Single Bench which he has furnished and apparently on reading the precedent law, the same applies in favour of the petitioner and hence, this Court passes the following order. 2. The petitioners have preferred this writ petition under Article 226 of the Constitution of India with the following prayers: "1. By an appropriate writ order or direction, the respondents may kindly be directed to appoint the petitioner on the post of PTI Gr. III. 2. By an appropriate writ order or direction, the respondents may kindly be directed to allow him to participate in the selection process. 3. By an appropriate writ order or direction, the respondents may kindly be directed to keep one post vacant ill the final disposal of this petition. 4. Any other appropriate order which is deemed just and proper in the facts and circumstances of the case may kindly be also passed in favour of the petitioner." 3. The brief facts as noticed by this Court are that the respondent RPSC issued a joint advertisement No.6/exam/1013-14 dated 18.02.2013 for recruitment to the post of Physical Training Instructor Grade-II and Grade-III. The condition in the advertisement was stipulated on page 18 of the paper book which is part of the advertisement clearly stipulated that all the candidates who were eligible, could fill their preferences for both the posts i.e. Physical Training Instructor Grade-II and Grade-III. Admittedly, the petitioner has filled the preference for PTI Grade-II. 4. Learned counsel for the petitioner has stated that nowhere a whisper is there in the advertisement dated 18.09.2013 that the petitioner can appear only for one post i.e. either Physical Training Grade-II or Grade-III and rather there is express provisions of being considered for both the posts but the candidate was required to give preference and preference has been given by the candidate for Physical Training Instructor Grade-II. 5. Thus, apparently learned counsel for the petitioner states that the respondent made believe the petitioner that he is entitled to participate in both the Physical Training Instructor Grade-II and Grade-III and his preference would be for Grade-II and in which he shall be considered first and thereafter the without preference i.e. Grade-III. 6. 5. Thus, apparently learned counsel for the petitioner states that the respondent made believe the petitioner that he is entitled to participate in both the Physical Training Instructor Grade-II and Grade-III and his preference would be for Grade-II and in which he shall be considered first and thereafter the without preference i.e. Grade-III. 6. Learned counsel for the respondent has admitted that as per the process, the candidate could have opted for simultaneous recruitment arising out of the advertisement dated 18.02.2013 for the post of Physical Training Instructor Grade-II and Grade-III but this was possible only if he had made the preference for Grade-II and Grade-III simultaneously in the required column. 7. Learned counsel for the respondent did not dispute that the petitioner was entitled to be considered in Grade-II and Grade-III if he had marked the both the preferences in the application form. The respondents declared the cut-off marks for PTI Grade-II for General Male OBC Category which was 320.95 and 263.37 for PTI Grade-III OBC Category. The petitioner admittedly has secured 315.93 marks and thus, does not fall in the cut-off of PTI Grade-II General Male OBC but falls within the merits of PTI Grade-III General Male OBC Category. 8. Thus, as per the counsel for the parties, the only ground of adjudication is that a candidate like the petitioner who has shown his preference to be PTI Grade-II whether could be considered for PTI Grade-III on his merits or not. 9. The single Bench judgment passed in Balvinder Kaur v. Rajasthan Public Service Commission, Ajmer & Anr. (S.B. Civil Writ Petition No.9292/2015, decided on 18.05.2017) , the Hon''ble Court had considered the candidature even when she had filled only three preferences in the recruitment and was held entitled outside those three preferences. The relevant portion of this judgment, reads as under :- "An additional affidavit has been filed on behalf of the respondent No. 2. As per the said additional affidavit, the petitioner had filled only 03 preferences. She was at Serial No. 1904 in the general merit and therefore, was not found eligible in the 03 preferences given by her. Hence, she was not called for the medical examination. Richa Garg, on the other side, who was at Serial No. 1951 in the merit list, gave preferences for 08 State Services and 07 Subordinate Services i.e. total 15 preferences. Hence, she was not called for the medical examination. Richa Garg, on the other side, who was at Serial No. 1951 in the merit list, gave preferences for 08 State Services and 07 Subordinate Services i.e. total 15 preferences. She was found eligible in accordance with her preference. Accordingly, she was called for the medical examination. It is contended by the learned counsel for the petitioner that preferences given by the candidates have only to be considered towards a privilege granted while considering the service in which the candidate is to be absorbed. As per him, such candidates covered in merit whose names are recommended by the Commission to the State have to be offered appointment on a suitable post as per his/her merit. The petitioner cannot be denied appointment just because she gave only 03 preferences. While filling the merit, the candidate is only indicating his preferential post and no concrete conclusion can be drawn from the preferences because the select list is to be governed by the merit position of the candidate. Applying the test in the present case, in case the averments raised by the petitioner are accepted, there would be total chaos and confusion and the respondent authorities would never be able to complete the process of selection. Every candidate is required to fill their forms as per the instructions. The failure to do so will disentitle them to lay their claim after the process is complete and the posts have been distributed among the candidates as per their merit and preference and visa-vis those, who had filled their forms according to the instructions. In view of the above, this Court would not have interfered in the circumstances but for the fact that two posts in the Rajasthan Tehsildar Services are still lying vacant. Moreover, this Court while passing the interim Order dated 04.09.2015 had directed the respondents to assess the petitioners'' suitability as per her merit and reserve one post in the service where the petitioner qualifies. In pursuance to the said interim order, the respondents have kept one post vacant in the Rajasthan Cooperative Subordinate Services instead of keeping the post reserved in the service where the petitioner qualified in terms of the interim order passed on 04.09.2015 as per her merit. In pursuance to the said interim order, the respondents have kept one post vacant in the Rajasthan Cooperative Subordinate Services instead of keeping the post reserved in the service where the petitioner qualified in terms of the interim order passed on 04.09.2015 as per her merit. It is not disputed by the respondents that in case, the merit is applied, the petitioner is eligible to be appointed against the post of Rajasthan Tehsildar Services. In any case, admittedly 02 posts are still vacant, although, in the general category in Rajasthan Tehsildar Services. Looking to the fact that the petitioner is otherwise a meritorious candidate and the post is also lying vacant in the services to which she qualified, it would be highly unjust and unfair to allow the said post to go unfilled and deprive a candidate who is otherwise in merit only on account of an error of not filling up more preferences beyond 03 filled by her. Accordingly, the present writ petition is allowed. The respondents are directed to grant appointment to the petitioner in the Rajasthan Tehsildar Services as per her merit against the post which is still lying vacant. The said appointment shall be given w.e.f. the date person less meritorious from that of the petitioner has been given appointment i.e. 17.02.2016. However, the said period will be counted only for the purpose of notional benefit. The needful shall be done within one month from today." 10. The Division Bench of this Hon''ble Court has also upheld the same in D.B. Spl. Appl. Writ No.652/2017, decided on 13.09.2017, the relevant portion of this judgment, reads as under:- "3. Reason why the respondent had been over looked was that she had indicated only three preferences i.e. Rajasthan State Service, Rajasthan Police Service and Rajasthan Account Service. She did not fill other columns regarding other subordinate services for which she would have a preference. Obviously for the reason candidates more meritorious in the three preferred services were available, the appellants did not call upon the respondent to get herself medically examined. The appellants treated the respondent having indicated only three preferences as on expression by her that she was not interested in any other services. 4. Obviously for the reason candidates more meritorious in the three preferred services were available, the appellants did not call upon the respondent to get herself medically examined. The appellants treated the respondent having indicated only three preferences as on expression by her that she was not interested in any other services. 4. Sub-Rule 2 of Rule 17 of the Rajasthan State and Subordinate Services ((Direct Recruitment by Combined competitive Examination) Rules, 1999 reads as under:- "(2) The Commission, while giving weightage to the preference for the posts in the different services expressed by a candidate in his/her application, may recommend him/her for appointment to any post in any such service for which it considers him suitable." 5. The Rule guides the Commission that while giving weightage to the preference for the post expressed by the candidate in different services the Commission should go forward and recommend a candidate for appointment to a post in any such services for which the Commission finds the candidate suitable. Meaning thereby, if a candidate can be appointed in a service other than for which the candidate has given a preference, the Commission is required to forward a recommendation to the State. 6. In the instant one the learned Single Judge has noted that two posts in the Rajasthan Tehsildar Service are lying vacant. The learned Single Judge has noted that under interim order, the appellants were directed to assess the respondent''s (petitioners) suitability as per her merit. The learned Single Judge has noted that one post in Rajasthan Tehsildar Service had been kept vacant and was still lying vacant. Learned Single Judge has highlighted that no claim of any other meritorious candidate would be jeopardized, for the reason if the respondent had indicated Rajasthan Tehsildar Service as a choice, based on her merit she would have been given appointment. 7. The direction issued is to give appointment to the respondent in the Rajasthan Tehsildar Service. The appointment would be on notional basis from the date person less meritorious was given. Wages for the past period have not been ordered to be paid. 8. Keeping in view the Rule and equities which have been well balanced by the learned Single Judge, we find no merit in the appeal." 11. The appointment would be on notional basis from the date person less meritorious was given. Wages for the past period have not been ordered to be paid. 8. Keeping in view the Rule and equities which have been well balanced by the learned Single Judge, we find no merit in the appeal." 11. Thus, learned counsel for the petitioner has shown the precedent law, whereby the candidate having not filled her preferences had considered the candidate for the appointment in accordance with her merit and was given appointment on the vacant post so available. 12. Learned counsel for the respondents however, has opposed the same on account of the fact that the interference of the Hon''ble Court was limited on the ground that the seats were lying vacant and therefore, Hon''ble Court had given the appointment to the petitioner in that case. Learned counsel for the respondent has also shown from the advertisement itself, which is clear that though a candidate participated in both the selection process for PTI Grade-II and Grade-III but he was considered only for the recruitment, in which he had made his preference. 13. After hearing the learned counsel for the parties and perusing the record of the case, this Court is of the opinion that meaning of word ''preference'' in accordance with the judicial Dictionary of K.J. Aiyar''s reads as follows:- "The expression ''preference'' amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence over the other. It signifies that other things being equal, one will have preference over the others. ''Preference'' in the context of stage carriage permit would mean that other things generally appearing to the qualificatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt the balance in favour of the undertaking. (Sher Singh v. Union of India, (1984) 1 SCC 107 at 115 : AIR 1984 SC 200 )" 14. As per the Cambridge dictionary meaning of word ''preference'' reads as follows:- "The fact that you like something or someone more than another thing or person; an advantage that is given to a person or a group of people" 15. It is apparent that preference does not mean that the petitioner is not opting for the other post but preference merely means that his first consideration should be on the post in which he has preferred. It is apparent that preference does not mean that the petitioner is not opting for the other post but preference merely means that his first consideration should be on the post in which he has preferred. This is a clear case where the respondent has allowed the petitioner to participate for the common recruitment for both the posts i.e. PTI Grade-II and Grade-III and the only action sought by the petitioner was his preference and admittedly his preference is PTI Grade-II. However, the preference was exhausted then it was imperative upon the respondents to have considered the petitioner on the post of Physical Training Instructor Grade-III. The petitioner had admittedly secured more marks than the cut-off marks. The cut-off marks for PTI Grade-III for General Male OBC was 263.37 marks whereas the petitioner had secured 315.93 marks and thus, is way above on the merit list and is therefore, entitled to be given appointment even if he could not make it as per the first preference. The parties are not at dispute that the petitioner was entitled to be considered by the common selection process for both the posts PTI Grade-II and Grade-III and he was facing disqualification only on account of the petitioner having filled his preference as PTI Grade-II whereas the preference word itself indicates that the petitioner was required to be given appointment on the post of PTI Grade-II as if he came qualified in the merit of the common examination for both the posts i.e. PTI Grade-II and Grade-III. The respondents should have given him his first preference posts i.e. PTI Grade-II but if he is failed to qualify as per his first preference then the petitioner automatically gets entitled to be appointed as PTI Grade-III. 16. In light of the aforesaid observations, the present writ petition is allowed. It is important to note that this Court while passing an interim order dated 16.10.2015 had directed the respondents to keep one post of PTI Grade-III in OBC General to be vacant. The interim order of this Court dated 16.10.2015 meets out the argument of the respondent that the selection process is over as vide such interim order, the petitioner''s post is still protected. Thus, the petitioner shall be given appointment on the post of Physical Training Instructor Grade-III in OBC General on the vacant post within a period of 30 days from today. Thus, the petitioner shall be given appointment on the post of Physical Training Instructor Grade-III in OBC General on the vacant post within a period of 30 days from today. The petitioner shall be given notional benefits from the date when the similarly situated candidate was given appointment.