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2018 DIGILAW 483 (RAJ)

Bheru Singh Dewara v. State of Rajasthan

2018-02-08

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT Pushpendra Singh Bhati, J —This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: "i. The record of the case may kindly be called for; ii. The respondents may kindly be directed to award 3 marks to the petitioner for Special Qualification (BCA) for the post of Constables GD in pursuance to advertisement dated 14.07.2013; iii. The respondents may kindly be directed to revise the merit list of General Category after adding marks of special qualification of the petitioner and the petitioner may kindly be selected in the final list of appointment for the post of Constables GD in pursuance to advertisement dated 14.07.2013; iv. The respondents may kindly be directed to grant the appointment on the post of of Constable GD to the petitioner as per his merit with all consequential benefits; v. Any other appropriate writ, order or direction which the facts and circumstances of the case warrants be issued and; vi. Costs of the writ petition be allowed in favour of the petitioner." 2. The petitioner participated in the selection process initiated vide advertisement dated 14.07.2013, whereby applications were invited for the posts of Constables GD, Constable Driver, Constable Bands and Constable Operators. 3. The petitioner was having the qualification of Bachelor of Computer Applications (BCA) and all other necessary eligibility. The petitioner appeared in the written examination and was declared successful, and thereafter, was called for physical examination scheduled on 09.01.2015. 4. The petitioner secured 58.25 marks in the written examination, 15 marks in physical examination and 01 mark for special qualification, which made his total marks to be 74.25. The cut off marks in the General Category were 77.125, and thus, the petitioner was lagging behind. 5. The grievance of the petitioner is that he was having the special qualification of BCA, and was thus, entitled to get three more marks. 6. The petitioner however, did not give the original copy of the BCA certificate. 7. Learned counsel for the petitioner states that in respect of the selection process initiated vide advertisement dated 28.09.2012 for recruitment to the post of Constable, the Hon'ble Division Bench of this Court in Hukma Ram Bishnoi Vs. The State of Rajasthan & Ors. 6. The petitioner however, did not give the original copy of the BCA certificate. 7. Learned counsel for the petitioner states that in respect of the selection process initiated vide advertisement dated 28.09.2012 for recruitment to the post of Constable, the Hon'ble Division Bench of this Court in Hukma Ram Bishnoi Vs. The State of Rajasthan & Ors. (D.B.Civil Special Appeal (Writ) No.317/2016 decided on 15.07.2016) , while allowing the appeal, directed the certificate to be taken on record for grant of bonus marks, even when it was made available at a subsequent stage. 8. The relevant portion of the judgment in Hukma Ram Bishnoi reads as under:- " There will have to be a distinction between a candidate who may not have appeared at the RSCIT examination before the date of the physical efficiency test and one who had but production of pass certificate on the relevant date was beyond his control. In case of the former the condition in the advertisement will be mandatory but in the latter case directory as construed in Charles K. Skaria . Possessing a qualification in computer proficiency was not an essential condition of eligibility but an additional qualification to avail bonus marks. 6. The appellant has qualified at all selection stages otherwise. The festering sense of injustice for which he finds himself at his wits end, still at the threshold of his career necessitates an interpretation which advances the cause of justice and does not stultify it devoid of life with aridity. 7. In Uma Shankar Sharma v. Union of India , (1980) 3 SCC 202 the appellant was appointed against the sports quota but terminated subsequently on the ground that he had been selected for inter university participation and had submitted the requisite certificate also but had not actually participated as he had fallen ill. Setting aside the termination it was observed as follows :- "5......The terms and conditions of service are intended to be construed reasonably, and too technical a view can defeat the essential spirit and intent embodied in them. The intention was to appoint meritorious sportsmen to the posts, and that object is served if a person who had qualified and was selected for representing his university in an Inter-University Tournament conducted by the Inter-University Sports Board is appointed, notwithstanding that he was actually prevented from participating because of reasons beyond his control." 8. The intention was to appoint meritorious sportsmen to the posts, and that object is served if a person who had qualified and was selected for representing his university in an Inter-University Tournament conducted by the Inter-University Sports Board is appointed, notwithstanding that he was actually prevented from participating because of reasons beyond his control." 8. Similarly in Mohammad Ayub v. State of Uttar Pradesh , (2009) 17 SCC 70 the appellant who was a constable applied for medical certificate to be considered for appointment as Armourer in the PAC Battalion before the cutoff date for applying. The fitness certificate was however made available after the cut-off date because of intervening government holidays. The denial to consider for appointment on that ground was set aside. 9. The aforesaid discussion satisfies us to hold that the appellant has wrongly been denied consideration for grant of bonus marks for his special additional qualification of computer proficiency RS-CIT under the advertisement. The respondents are therefore required to consider his candidature for grant of bonus marks for the same in accordance with law. Let the same be done within six weeks from the date of receipt and/or production of a copy of this order and appropriate reasoned order be passed within the same period. The order under appeal is set aside. The appeal is allowed." 9. Learned counsel for the petitioner further states that the petitioner would not have pressed this petition, had he not have the qualification at the requisite time, and his case is limited to the argument that he had the qualification and had furnished the photostat copies of the BCA, but the same has not been considered. 10. Learned counsel for the respondents opposed the submissions made on behalf of the petitioner on the ground that the petitioner was required to submit the original certificate of BCA at the appropriate stage. 11. After hearing the learned counsel for the parties as well as perusing the record of the case alongwith the precedent law relied upon by learned counsel for the petitioner, this Court is of the opinion that since the petitioner was having the qualification of BCA before the due date and the said information alongwith the photostat copies were available with the respondents, therefore, a lenient view should have been taken and the same should have been taken on record for grant of required marks for the said qualification. 12. 12. In view of the above, the present writ petition is allowed and the respondents are directed to consider the appointment of the petitioner in the General Category on his own merits and eligibility by giving him three more marks for the BCA qualification, which admittedly the petitioner possessed before the due date and the respondents admittedly have the parameter for giving three marks for such qualification. Such consideration shall be made by the respondents within a period of sixty days from today.