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2018 DIGILAW 40 (RAJ)

Rajendra Prasad Meena v. State of Rajasthan

2018-01-03

ARUN BHANSALI

body2018
ORDER : Arun Bhansali, J. Learned counsel for the respondents under the directions of the Court has produced the answer-sheets of the petitioners in sealed cover, and the copies have been examined by the Court. 2. This writ petition has been filed by the petitioners aggrieved against the rejection of their candidature for promotion to the post of Head Constable (General) vide Annex.- 3. 3. The petitioners have been serving as constable in the Rajasthan Armed Constabulary (RAC), Bikaner for different periods. The respondents issued vacancies for 50 posts of Head Constable, out of which, 7 posts were reserved for Scheduled Castes, 3 posts were reserved for Scheduled Tribes and rest 40 posts were meant for General and OBC category. 4. A list (Annex.-1) dated 08.03.2017 of the candidates eligible to appear for the written examination was issued containing the names of the petitioners. The petitioners appeared in the examination, result whereof was declared on 24.03.2017 and the successful candidates were permitted to appear in the Physical Test scheduled to be held on 11.04.2017. When the petitioners did not find their name in the list (Annex.-3) published by the respondents of the eligible candidates for Physical Test, they submitted representation through proper channel, however, when nothing was forthcoming on part of the respondents qua the grievance raised by the petitioners, the present writ petition was filed. 5. By interim order dated 11.04.2017, the respondents were directed to allow the petitioners to participate in further recruitment process scheduled to be held on 11.04.2017. However, it was ordered that the result may not be declared. 6. A reply to the writ petition has been filed by the respondents, inter alia indicating that as the petitioners failed to cross the threshold of 40% marks in the written examination having 25 maximum marks, they were not called for Physical Test scheduled to be held on 11.04.2017. It is indicated that the petitioners though were required to obtain minimum 10 marks out of 25 marks in terms of the Rule 27(1) of the Rajasthan Police Subordinate Service Rules, 1989 ('the Rules'), none of the petitioners could obtain the said marks, inasmuch as, the petitioner No. 1 obtained 7½ marks, petitioner No. 2 obtained 6¼ and rest petitioners No. 3, 4 and 5 obtained 8 marks each and on account of the failure to obtain the minimum marks, the petitioners have no case. 7. 7. During the pendency of the writ petition, at the request of learned counsel for the petitioners, the copies of the petitioners were called and as noticed hereinbefore the same were examined by the Court. 8. It is submitted by learned counsel for the petitioners that the admittedly all the petitioners are senior to several of the persons who have been found qualified in the written examination and have been ultimately found suitable by the respondents for promotion as Head Constable (General). It is submitted that looking to the experience of the petitioners qua the persons who have been selected, who are quite junior, it cannot be said that they were not able to obtain the minimum qualifying marks for the purpose of clearing the written examination. Submissions have been made that while the petitioners with such seniority, have been deprived, the new incumbents who are quite junior to the petitioners have been found eligible for promotion to the post of Head Constable, which action of the respondents cannot be sustained. 9. Learned counsel appearing for the respondents supported the action of the respondents. It was submitted that the petitioners being eligible appeared in the written examination were required by Rule 27 of the Rules to obtain minimum 40% marks in written examination, however, failed to obtain requisite marks and once the threshold has been fixed, which has not been crossed by the petitioners, they cannot complain about their non selection despite seniority. Submissions were made that the copies of the petitioners were properly evaluated and the marks were awarded to them and, therefore, the grievance raised in this regard has no basis and, therefore, the writ petition deserves to be dismissed. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. So far as the provisions for providing for a threshold for the purpose of promotion by way of seniority-cum-merit criteria is concerned, the said aspect is no more res integra as Hon'ble Supreme Court in Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya Gramin Bank & Ors., AIR 2010 SC 699 has laid down as under:- "10. 11. So far as the provisions for providing for a threshold for the purpose of promotion by way of seniority-cum-merit criteria is concerned, the said aspect is no more res integra as Hon'ble Supreme Court in Rajendra Kumar Srivastava & Ors. v. Samyut Kshetriya Gramin Bank & Ors., AIR 2010 SC 699 has laid down as under:- "10. Thus, it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognized and accepted as complying with the principle of 'seniority-cum-merit'. What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit." (emphasis supplied) Rule 27 of the Rules, inter alia, provides as under:- "27. Procedure of selection.- (1) After the vacancies to be filled by promotion have been determined under rule 10, the Board as referred to in sub-rule (3) below shall be constituted. The Board shall prepare correct and complete list containing names not exceeding three time the number of vacancies out of the senior most eligible members of service, who have passed Part-I of the qualifying examination, specified in rule 29, by obtaining 40% marks in Parade, Practical and other Out-door test and 40% marks in written test with 45% marks in aggregate for promotion to the class of post concerned." 12. The above Rule provides that a list containing 3 times the vacancies out of the senior most eligible members of service who have passed part-I of the qualifying examinations specified in Rule 29 by inter alia obtaining 40% marks in the written test shall be prepared. 13. The above Rule provides that a list containing 3 times the vacancies out of the senior most eligible members of service who have passed part-I of the qualifying examinations specified in Rule 29 by inter alia obtaining 40% marks in the written test shall be prepared. 13. Once the Rule specifically provides for obtaining 40 % marks in the written examination, the petitioners having participated in the process and having failed to obtain minimum marks, as prescribed, cannot turn around and seek promotion merely based on their seniority. 14. So far as the award of marks to the petitioners are concerned, which are sought to be questioned in the present writ petition based on the experience of the petitioners, as already noticed hereinbefore, at the request of learned counsel for the petitioners, the copies of the petitioners were called in sealed cover before the Court and were examined and on examination, it was found that the marks have been awarded for all the attempted answers and nothing was found so as to doubt the veracity of the marks awarded to the petitioners. 15. Besides the above, the jurisdiction of the Court cannot be invoked, for the purpose of examining the validity of the quantum of marks as awarded to the petitioners. Once on examination it was found that the attempted answers have apparently been marked, there is no reason for this Court to further get into the aspect of appropriateness of the marks awarded to the petitioners. 16. In view of the above factual situation as well as the legal aspect as noticed hereinbefore, there is no substance in the writ petition, the same is, therefore, dismissed.