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2021 DIGILAW 2125 (RAJ)

Vedram Gurjar v. State of Rajasthan

2021-11-15

AKIL KURESHI, REKHA BORANA

body2021
JUDGMENT Petitioners have challenged the vires of Clause (iii) of second proviso Rule 11 of the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter to be referred as 'the said Rules') in the following background:- The petitioners are Ex-servicemen. The Rajasthan Public Service Commission had advertised several posts for Senior Teachers in Government schools on 09.04.2018. As per the advertisement, the application could be filed between 10.05.2018 to 09.06.2018. Corrections in the applications made could be done between 10.06.2018 to 16.06.2018. The selection was to be made on the basis of written examination alone. In other words, there would be no oral interview but the selected candidate would be counseled before issuing the appointment orders. The date of this written examination was not published in the advertisement. It was held on 01.11.2018. The result of the written examination was published on 08.08.2019 and the counseling took place on 29.11.2019 and 02.12.2019. Rule 11 of the said Rules pertains to academic and technical qualification and experience. Sub-Rule 1 of Rule 11 provides that a candidate for direct recruitment to the post mentioned in the schedule, shall in addition to such experience as required, possess qualification given in Column 4 of the Schedule and working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture. Sub-Rule 1 of Rule 11 provides that a candidate for direct recruitment to the post mentioned in the schedule, shall in addition to such experience as required, possess qualification given in Column 4 of the Schedule and working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture. Second proviso of this rule which is relevant for our purpose, reads as under:- "Provided that the person who has appeared on is appearing in the final year examination of the course, which is requisite educational qualification for the post as mentioned in the rules or Schedules for direct recruitment, shall be eligible to apply for the post but he/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency:- (a) before appearing in the main examination, where selection is made through two stages of written examination and interview; (b) before appearing in interview, where selection is made through written examination and interview; (c) before appearing in the written examination or interview where selection is made through only written examination or only interview as the case may be." As per this proviso, thus a person who has appeared or is appearing in final examination of the course which is an essential qualification for the post in question will also be eligible to apply but he or she will have to submit proof of requisite qualifications to the selection agency as mentioned in three clauses (a) to (c) contained therein. If we analyse these three clauses, the requirement of showing proof of acquisition of requisite qualification is trifurcated. Clause (a) provides cut off date as one before appearing in main examination where selection is made through two stages of written examination followed by interview. As per clause (b), such cut off date will be before appearing in interview where selection is made through written examination and interview and lastly clause (c) which is under challenge provides a cut off date as before appearing in written examination or interview where selection is made through only written examination or only interview, as the case may be. As per this rule, the petitioners were eligible to apply for the post in question even though they may not be possessing the essential educational qualification but had only appeared in the final year examination. As per this rule, the petitioners were eligible to apply for the post in question even though they may not be possessing the essential educational qualification but had only appeared in the final year examination. However, the eligibility would be judged on the basis of the situation which would emerge depending upon the nature of the selection process as provided in clause (a) to (c). The case of the petitioners would fall in clause (c) since the selection process comprised only of the written examination. As per this proviso thus, even though the petitioner could have applied in response to the advertisement issued by the Rajasthan Public Service Commission, they would be treated as eligible only if before appearing in the written examination they had acquired the essential educational qualification. As noted, in the present case, such examination was conducted on 01.11.2018. The petitioners had cleared the B.Ed course only on 02.11.2018 since that is the date on which the result of final examination was declared. Thus according to the respondents, petitioners were not eligible since they had not acquired the essential educational qualification before the date of appearing in the written examination. It is in this context the petitioners have challenged the validity of the said Rule. Learned counsel for the petitioners vehemently contended that the Rule is arbitrary and irrational since it relates the cut off date for acquiring the requisite qualification to the date of written examination though in many cases as in the present one, result of the written examination so conducted may be delayed for an indefinite period. He further submitted that date of written examination was not declared in the advertisement. Thus, the date as on which a candidate would have to show the proof of acquisition of essential educational qualification was left uncertain. In support of his contentions, counsel relied on following decisions:- In case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board ( AIR 2016 SC 1098 ) which was a case in which a candidate who had appeared in examination in the OBC category, could submit the caste certificate after the cut off date mentioned in the advertisement and in this background, the Supreme Court held that concept of reservation contained in the Constitution should be applied in such a manner as to give benefit to the candidate. Significantly in the said case, the candidate did belong to a particular category. He had not produced the certificate in support of the same before a certain date. This was not thus a case where question of acquiring the qualification on a certain date was at issue before the Supreme Court. Counsel relied on the decision of Supreme Court in the case of Naushad Anwar v. State of Bihar, 2014 AIR SCW 1974. This was however a case in which the Supreme Court observed that the question of eligibility for the qualification on the date of application has to be liberally applied when confusion exists in the Rules. Counsel drew our attention to Rule 38 of the said Rules which gives power to the Government to relax any of the provisions of the Rules under certain circumstances. Relying on decision of the Supreme Court in the case of Jawaharlal Nehru University and Anr. v. Maj. General Y.M. Bammi and Anr. ( AIR 1994 SC 456 ), Counsel submitted that in the present case, such powers should be exercised. We have also heard the learned counsel for Rajasthan State Public Service Commission as well as the Government of Rajasthan. In the present case, we are only concerned with the validity of the Rule. Counsel for the petitioner did not argue that as per the Rules as they stand at present, the petitioners could have been held eligible for selection to the post in question. In that situation, we have focused our attention on the validity of the Rule alone. As noted, Rule 11 of the Rules provides that a candidate for direct recruitment to the post, must possess qualifications prescribed in Column 4 of the schedule. Second proviso to this rule provides that one who has appeared or is appearing in the final examination for the post which is an essential qualification for the post in question, may also apply. However, he or she shall have to submit proof of acquiring requisite qualification before the appropriate selection agency before the dates as provided in clause (a) to (c) depending on the situation. As noted, clause (a) would cover the cases where the selection is made through two stages of written examination and interview and in such a case, the cut off date would be before appearing in the main examination. As noted, clause (a) would cover the cases where the selection is made through two stages of written examination and interview and in such a case, the cut off date would be before appearing in the main examination. Clause (b) covers the case where selection is made through written examination and interview and in which case, the cut off date would be before appearing in the interview and the last one is clause (c), where selection is made through only on written examination or only interview and in which case, the cut off date would be before appearing in such examination. In our view, this Rule provides logical and reasonable basis for deciding the eligibility of a candidate. It is well established through a series of judgment of Supreme Court that the cut off date for acquisition of essential qualifications for appointment to a Government post would be as provided in the recruitment Rules, failing which as per the date mentioned in the recruitment advertisement, failing which the last date for receiving the application as provided in the advertisement. Reference in this respect can be made to a judgment of the Supreme Court in Bhupinderpal Singh and Ors. v. State of Punjab and Ors. in AIR 2000 SC 2011 , in which it has been observed as under:- "13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar and Anr. MANU/SC/1130/1997 : (1997) I LLJ 1160 SC; A.P. Public Service Commission v. B. Sarat Chandra and Ors. MANU/SC/0447/1990: (1990) II LLJ 135 SC; TheDistt. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. v. M. Tripura Sundari Devi 1990 (4) SLR 237 ; Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors. MANU/SC/0838/1993: (1993) I LLJ 617 SC; Dr. M.V. Nair v. Union of India and Ors. MANU/SC/0494/1993: (1993) II LLJ 347 SC; and UP. Public Service Commission, U.P., Allahabad and Anr. v. M. Tripura Sundari Devi 1990 (4) SLR 237 ; Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors. MANU/SC/0838/1993: (1993) I LLJ 617 SC; Dr. M.V. Nair v. Union of India and Ors. MANU/SC/0494/1993: (1993) II LLJ 347 SC; and UP. Public Service Commission, U.P., Allahabad and Anr. v. Alpana MANU/SC/0672/1994:[1994] 1 SCR 131, the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be. applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice." This view has been consistently followed in a series of judgment. It was open for the Rule making authority to provide a cut off date for acquisition of essential qualifications. The Rule in question does not suffer from any discrimination or arbitrariness. When any such Rule provides a cut off date, some harsh cases are bound to come forward where the person concerned may fall on the wrong side of the requirement only by a couple of days. Such hardship cannot be avoided. As long as the criteria drawn is based on rational basis and which has nexus to the purpose sought to be achieved, such Rule cannot be declared as unconstitutional merely because according to the petitioners, different formula may be better. In exercise of powers of subordinate legislation, the recruiting agency has the necessary discretion to frame a Rule which would suit the purpose of the administration. As long as the Rule is neither discriminatory nor draws a cut off date which is wholly arbitrary, the Court cannot declare it unconstitutional. In exercise of powers of subordinate legislation, the recruiting agency has the necessary discretion to frame a Rule which would suit the purpose of the administration. As long as the Rule is neither discriminatory nor draws a cut off date which is wholly arbitrary, the Court cannot declare it unconstitutional. In the result, the petition is dismissed.