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2017 DIGILAW 73 (RAJ)

Hemendera Choudhary v. State of Rajasthan

2017-01-06

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. The issue in all petitions is similar and they are hence being disposed of by this common order. SBCWP No. 14140/2011 is taken as the lead case and its facts adverted to. At the outset, counsel for the petitioner has been submitted that he does not press the case of petitioner No. 2 Pushpendra Singh. 2. The case of the remaining petitioner is that he applied for the post of Sub-Inspector through the Police Combined Competitive Examination-2007 which was notified on 09.04.2007. Issued an admit card to appear at the examination, he wrote the said examination under roll No. 221026, passed it and thereafter was called for an interview. The result of the examination was declared on 26.03.2009 and the petitioner found place in the select list. On downloading the mark-sheet the petitioner learnt that in the compulsory subjects of Hindi and General Knowledge, the respondent-Rajasthan Public Service Commission (hereinafter 'the RPSC') had resorted to scaling of marks. Resultant thereto the petitioner was scaled down to 85 marks in Hindi from 90 and 80 marks from 83 in General Knowledge, resultant to which the petitioner's grand total also reflecting of the marks in optional subjects was 280 in the aggregate. The petitioners merit was accordingly reckoned and he given appointment vide order dated 18.10.2009 to the post of Platoon Commander (RAC) and not as Sub-Inspector (Armed Police) to which post purportedly more meritorious candidate so reckoned on the method based on scaling of marks in compulsory subjects too adopted by RPSC, were appointed. 3. The case of the petitioner is that for reasons of the unwarranted and illegal scaling of his raw marks in the compulsory subjects of Hindi and General Knowledge, his merit was lowered. Otherwise on raw marks in the compulsory subjects of Hindi and General Knowledge common to all candidate, his merit would be much higher and he would have been entitled to appointment as Sub-Inspector (Armed Police)-the post he had opted for as his first choice. It was submitted that the illegality of the respondent-RPSC in scaling raw marks in compulsory subjects common to all candidate at the examination in issue came up for the consideration before the principal seat of this court at Jodhpur in SBCWP No. 3705/2009 in Ram Narayan Bhanwareya v. State and Anr. and four others decided on 20.09.2011. It was submitted that the illegality of the respondent-RPSC in scaling raw marks in compulsory subjects common to all candidate at the examination in issue came up for the consideration before the principal seat of this court at Jodhpur in SBCWP No. 3705/2009 in Ram Narayan Bhanwareya v. State and Anr. and four others decided on 20.09.2011. Therein the court held that RPSC could not have resorted to scaling of raw marks obtained by the candidates in compulsory subjects and drawn the merit list on that basis. However as the vacancies in issue related to 2008-09 and in the meantime were filled-up, the court directed that the petitioners before it be adjusted on their merit ascertained qua the examination under notification dated 09.04.2007 and appointed against future vacancies on the post of Sub-Inspectors (Armed Police). 4. Counsel further submitted that the petitioner approached this Court on 10.10.2011. Subsequently SBCWP No. 14927/2011 titled Sunil Sharma and 4 Ors. v. State of Rajasthan on the same issue was filed before this Court claiming similar relief, as claimed by the petitioner on the basis of this court's order in the case of Ramnarayan Bhanwreya. Thereupon vide order dated 20.09.2011, this Court held that the case set up by the petitioners Sunil Sharma and 4 Ors. was covered on all fours by the judgment of this Court in the case of Ram Narayan Bhanwareya and they be accordingly considered for appointment as Sub-Inspector (Armed Police). It was submitted that following the court's direction, Sunil Sharma and four Ors. were appointed as Sub-Inspector (Armed Police). Counsel submitted that the mere fortuitous circumstance that the petitioner writ petition filed prior to SBCWP No. 14927/2011 could not be disposed of therewith or prior thereto cannot entail a situation where the petitioner similarly placed should be denied relief for appointment as Sub-Inspector (Armed Police) which in law he is entitled to both on the merit of his case and parity. Counsel also emphatically submitted that the principal seat of this Court at Jodhpur did not and could not have in the case of Ramnarayan Bhanwreya intended to carve out a special category for the petitioners before it to the exclusion of others similarly or even better placed on merit, than the petitioners before it-albeit appointments already made on scaling of marks in compulsory subjects were not interfered with. That was the Court's discretion which however cannot be construed as holding against the petitioners now before this Court. 5. Mr. S.N. Kumawat, AAG for the respondent-RPSC has emphatically submitted that in the event Ram Narayan Bhanwareya's case were to be mechanically followed even in the year 2017 and this Court were to direct consideration of the petitioner for appointment as Sub-Inspector (Armed Police) against future vacancies on the basis of his merit re-ascertained with reference to his raw not scaled marks in the subject of Hindi and General Knowledge at the Examination for selection Sub-Inspector (Armed Police) following notification dated 09.04.2007, it would wreck havoc with the appointment process in respect of future vacancies. Mr. S.N. Kumawat emphatically submitted that future vacancies cannot be meddled with on the basis of earlier exams to which they do and cannot relate and have to be kept open for those who acquire eligibility therefor as has been ad nauseum held by the Apex Court as also this Court. It was submitted that Ram Narayan Bhanwareya and four others (supra) decided on 20.09.2011 had approached this Court in the year 2009 and 2010 respectively and formed a class by themselves different from those such as the petitioner who approached this Court subsequently. It was submitted that it is well settled that the rights are to be enjoyed only by the vigilant and not by the indolent. Hence the case of the petitioner approaching this Court after an unexplained delay be dismissed for laches. 6. Dr. A.S. Khangarot appearing for the respondent-State supported Mr. S.N. Kumawat's contention but is not in a position to deny that aside of appointments as Sub-Inspectors (AP) to Ram Narayan Bhanwreya and four others, five others petitioners in SBCWP No. 14927/2011 who approached this Court subsequent to petitioner have also been appointed as Sub-Inspector (Armed Police) after following the Courts judgment reckoning their merit on the basis of raw and not scaled marks in the compulsory subjects of Hindi and General Knowledge of the examination in issue. 7. Heard. Considered. 8. 7. Heard. Considered. 8. The mere fortuitous circumstance of SBCWP No. 14927/2011 being disposed of prior to SBCWP No. 14140/2011 earlier filed before this court cannot be a ground enough for distinguishing the case of the petitioner from that of the Sunil Sharma and four Ors., similarly placed, more particularly on the contention of the counsel for the petitioner which has not been controverted that the petitioner Hemendra Choudhary has a better merit than the Sunil Sharma and four others in SBCWP No. 14927/2011 on the basis of raw marks in compulsory subject. It cannot be disputed that in the case of Ram Narayan Bhanwareya (Supra), this court has held that raw marks obtained in the compulsory subjects of Hindi and General Knowledge for selection inter-alia to the post of Sub-Inspectors (Armed Police) pursuant to the notification dated 09.04.2007 could not have been scaled for drawing the merit list. It is no doubt true that the Court had indicated that relief granted would be confined to the five petitioners before it. That direction however did not take away rights of others similarly placed. In fact subsequently following Ram Narayan Bhanwreya, SBCWP No. 14927/2011 Sunil Sharma & ors. decided on 22.10.2011 the petitioners therein were directed to be appointed as Sub-Inspector (AP) on the basis of their raw marks in the compulsory subjects of Hindi and General Knowledge. That order was not challenged but complied with as evident from the order 12.02.2013 passed under the hand of Inspector General of Police, Headquarters, Rajasthan, Jaipur. It cannot be disputed that the petitioner Hemendra Choudhary had approached this Court prior to Sunil Sharma and four Ors in SBCWP No14927/2011. The mere chance that the petitioner's petition remained pending while SBCWP No. 14927/2011 was disposed of covering it with the law laid down in Ram Narayan Bhanwareya's case cannot be of detriment to the petitioner on the latin maxim actus curiae, neminem gravabit i.e. that the action of the Court cannot entail prejudice to anyone. 9. Besides, appointment of Ram Narayan Bhanwareya and four other (SBCWP No. 3705/2009) as also Sunil Sharma and four others (SBCWP No. 14927/2011) as Sub-Inspectors (AP) on their merit reckoned on their raw marks in the compulsory subjects of Hindi and General Knowledge have been made against future vacancies. 9. Besides, appointment of Ram Narayan Bhanwareya and four other (SBCWP No. 3705/2009) as also Sunil Sharma and four others (SBCWP No. 14927/2011) as Sub-Inspectors (AP) on their merit reckoned on their raw marks in the compulsory subjects of Hindi and General Knowledge have been made against future vacancies. There is no-conceivable or justifiable reasons for denying the petitioner similar relief of consideration for appointment against future vacancies to the post of Sub-Inspector (Armed Police) on his merit being reckoned on the basis of his raw marks in the compulsory subjects of Hindi and General Knowledge at the examination under notification dated 09.04.2007. It is also on record that even subsequent to the judgment of this court in SBCWP No. 14927/2011 and four other connected writ petition decided on 22.10.2011, this Court in SBCWP No. 15556/2015 titled Anju Kumari v. State of Rajasthan and Ors. decided on 02.11.2015 issued a direction for Anju Kumari's consideration for appointment on the post of Sub-Inspector (Armed Police) on the basis of her raw marks in the compulsory subjects of Hindi and General Knowledge at the examination for selection pursuant to the notification dated 09.04.2007. Thereupon the Inspector General of Police in his compliance order dated 25.04.2016 directed that subject to approval of the State Government the merit of Anju Kumari at the Sub-Inspector examination pursuant to the notification dated 09.04.2007 be reshuffled on the basis of her raw marks in the compulsory subjects of Hindi and General Knowledge and she be appointed as Sub-Inspector (Armed Police). 10. In the state of affairs recorded above I do not find any tenability in Mr. S.N. Kumawat's argument that the petition be dismissed on the ground of laches. For one that argument ought to have emanated from the State but did not. Further the arguments stands baseless in the face of the State Government itself continuing to reshuffle the merit at the Inspectors' exam in issue by appointing Sunil Sharma and four ors. as Sub-Inspector (AP) following the Court order in SBCWP No. 14927/2011 as evident from its order dated 12.02.2013 and the Inspector General of Police in compliance with the Court's order dated 02.11.2015 in SBCWP No. 15556/2015 Anju Kumari v. State of Rajasthan & Anr. Vide order dated 25.04.2016 recommending Anju Kumari's appointment based or her raw marks in compulsory subjects of Hindi and General Knowledge as Sub-Inspector (AP). Vide order dated 25.04.2016 recommending Anju Kumari's appointment based or her raw marks in compulsory subjects of Hindi and General Knowledge as Sub-Inspector (AP). The Government evidently is treating the process of appointment as Sub-Inspector (AP) open even in the year 2015. Justice is an essential human need for an orderly society. Equality amongst equals is central to it. A sense of injustice perpetuated by uneven application of law fosters cynicism destructive of the rule of law and reduces governance to whims and fancies where the rule of men arbitrarily trumps the rule of law. This cannot be countenanced by this Court. 11. In the facts and circumstances of the case and applicable law, it would be appropriate to direct that the case of the petitioner be considered against future vacancies for the post of Sub-Inspector (AP) on appropriate representation made within seven days of receipt of a certified copy of this order consonant with the petitioner's merit as re-ascertained on the basis of his raw marks in the subjects of Hindi and General Knowledge in the examination for the post of Sub-Inspector conducted following the notification dated 09.04.2007. The rule against appointment on future vacancies does not attract to the equitable directions of a court exercising jurisdiction under Article 226 of the Constitution of India. The respondents have not invoked the said rule in the case of Ram Narayan Bhanwreya and four Ors. as also in the case of Sunil Sharma and Ors. 12. Before parting with the case, it will be important to note the chaos resulting from the situations where the principle of law determined by this court in respect of a recruitment process is unevenly applied for whatever reasons. Where a legal issue with regard to a recruitment process-substantive or procedural is determined by the court and has attained finality, it has to be universally applied to the recruitment in issue without any variation. It is also the responsibility of the court to minimize litigation while upholding law, important aspects whereof are certainty and parity. Consequently this Court cannot countenance a situation where appointments to a post are made on two different criteria as in the present case where Sub-Inspectors (AP) have been appointed both on the basis of scaled marks and raw in the compulsory subjects of Hindi and General Knowledge at the same examination. Consequently this Court cannot countenance a situation where appointments to a post are made on two different criteria as in the present case where Sub-Inspectors (AP) have been appointed both on the basis of scaled marks and raw in the compulsory subjects of Hindi and General Knowledge at the same examination. The general public in such a situation is left to gaze askance at the contradictions and draw their own wholly unjustifiable conclusions. Detrimental spin offs are intractable disputes logging already overcrowded dockets of the courts loss of public faith. 13. In the circumstances, I would direct that a copy of this judgment be communicated by the Deputy Registrar (Judicial) to the Chief Secretary, State of Rajasthan and Chairman, RPSC to take all necessary appropriate steps and to issue requisite directions that a principle of law determined by the Courts in respect of a recruitment be universally and equally applied at the earliest without any variance as it a constitutional imperative that equality of opportunity in public employment be maintained between similarly situate candidates. 14. The writ petition stands disposed of accordingly.