ORDER : Sangeet Lodha, J. 1. These petitions are filed by the petitioners seeking review of a common order dated 30.1.19 passed by a Bench of this Court, of which, one of us (Manoj Kumar Garg, J.) was a member, whereby the special appeals preferred by the respondents, were allowed. 2. The respondents-writ petitioners after qualifying the written examination for recruitment to the post of Constable, were called for Physical Standard Test (PST) and Physical Efficiency Test (PET). The writ petitioners appeared for PST/PET on the scheduled dates at the designated stadium i.e. Maharana Bhopal Stadium, Chetak Circle, Udaipur. The writ petitioners passed the PST and then participated in 5 kms. run for PET, wherein they failed. Aggrieved thereby, they preferred writ petitions before this Court with the allegations that there was heavy rain during the period the PET was scheduled, resulting in running track getting muddy due to rain water and therefore, they could not perform to their potential. 3. Similar petitions were filed by other candidates who had appeared in PST/PET at the designated stadiums situated in different cities. 4. During the pendency of the writ petitions, the learned Single Judge appointed a learned counsel of this Court to be a Commissioner, who went through the video recordings and submitted a report qua each Stadium where PET was conducted. The counsel representing the writ petitioners were granted opportunity to file objections to the report, however, no objections whatsoever were filed by any of the parties. 5. The Commissioner observed qua the condition on 8.9.18 at 12.48 PM at Kota that there was heavy rain on the day and part of the run was conducted during the downpour. On the basis of the report submitted, the Court arrived at the conclusion that the candidates who appeared for the test at Kota Stadium were not made available appropriate conditions for undertaking the PET. Regarding other stadiums at different places, the Court observed that irrespective of the some wetness on the matting placed for monitoring the time of candidates, the condition of the track appeared dry and firm/reasonably firm and settle/not found as wet-muddy and therefore, in those conditions, the candidates only on account of the fact that they failed in achieving the landmark cannot succeed in getting another opportunity to undergo a fresh PET. 6.
6. In view of the conclusion arrived at as aforesaid, the writ petition preferred by the writ petitioners, who were made to run on the track at Kota as referred above, were allowed and the respondents were directed to hold fresh physical test for such petitioners at Rajasthan Police Training Centre, Mandore Road, Jodhpur. However, the writ petition preferred by the writ petitioners in all other cases were dismissed vide judgment dated 27.11.18 led by S.B.C. Writ Petition No. 13731/18: Revant Ram Meghwal vs. State of Rajasthan & Ors. 7. The respondents-writ petitioners whose writ petitions were dismissed by the learned Single Judge, preferred special appeals under Rule 134 of Rajasthan High Court Rules, which were allowed by a Bench of this Court by the order under review dated 30.1.19 with the observations/conclusions as under: "8. A look at the data detailed by the learned Single Judge gives vital information which appears to have been overlooked by the learned Single Judge. At Jaipur, on 29.08.2018 the Physical Efficiency Test was conducted in the morning and in the evening. The condition of the track as of 8:46 A.M. is the same of 04:02 P.M. and this shows the level to which the track had got affected. At Kota, Physical Efficiency Test was conducted at 09:00 A.M., 12:00 Noon and 02:00 P.M. on 07.09.2018, 08.09.2018 and 09.09.2018. The data shows that on all three dates the track was affected due to rainfall. The date of the Physical Efficiency Test held on 10.09.2018 at 09:00 A.M. and 10:00 A.M. shows same position. Physical Efficiency Test conducted in Kota on 11.09.2018 and 13.09.2018 also shows the same position. At Udaipur, Physical Efficiency Test conducted on 07.09.2018 and 08.09.2018 at 11:00 and 12:00 P.M. likewise shows the track to be affected to rainfall. 9. Under the circumstances the nuanced distinction drawn by the learned Single Judge as noted above is too tenuous. There is enough material to show that on all the dates the tracks were badly affected due to rainfall and merely because at a given time extent of damage to the track was more vis-à-vis other occasions would be no ground to drawn the distinction as has not been drawn by the learned Single Judge. 10. We allow the appeals and set-aside the impugned order dismissing the writ petitions filed by the appellants. 11.
10. We allow the appeals and set-aside the impugned order dismissing the writ petitions filed by the appellants. 11. We direct that the appellants be subjected to fresh Physical Efficiency Test at a track which is free from water logging." 8. Aggrieved by the aforesaid decision of this Court, in allowing the special appeals preferred by the writ petitioners, whose writ petitions were dismissed by the learned Single Judge, the State has filed the present petitions seeking review of the order. 9. It is noticed that aggrieved by the decision of the learned Single Judge dated 30.1.19 in allowing the writ petitions preferred by the candidates who were made to run on 8.9.18 in the Stadium at Kota, the State preferred special appeals before this Court, which stood allowed by a Bench of this Court vide judgment dated 31.7.19 rendered in D.B. Special Appeal Writ No. 124/19: State of Rajasthan & Ors. vs. Revant Ram Meghwal & Ors., relying upon yet another Bench decision in Shravan Kumar Choudhary vs. The State of Rajasthan & Ors: D.B. Special Appeal Writ No. 154/19, decided on 22.5.19. The Court observed: "11. This Court is of the opinion that the same reasoning would apply with greater force and rigor in this case, as well. Out of the 151 candidates who in fact participated in the PET, nearly 55% i.e. 82 qualified. Therefore, it could not be said that the facts showed manifest unfairness or arbitrariness in the case of the petitioners. After all, they like others (both successful and unsuccessful candidates) participated; they could not qualify. But a sizeable number of the participants qualified. Most of those who did not qualify did not approach the court. More number of candidates qualified and passed the PET, than those who did not. If one keeps all these facts in mind, the directions issued in the impugned judgment cannot be sustained." 10. It is also pertinent to note that on the day when the special appeal filed by Shravan Kumar Choudhary and others, referred supra, was dismissed, the arguments were heard in Revant Ram Meghwal's case (supra) and the judgment was reserved, which was later pronounced on 31.7.19.
It is also pertinent to note that on the day when the special appeal filed by Shravan Kumar Choudhary and others, referred supra, was dismissed, the arguments were heard in Revant Ram Meghwal's case (supra) and the judgment was reserved, which was later pronounced on 31.7.19. The review petitions filed by some of the appellants seeking review of order dated 22.5.19, passed by the Division Bench, dismissing their special appeals against the decision of the learned Single Judge, have been dismissed by a Bench of this Court vide order dated 20.11.19. 11. Learned AAG appearing for the State contended that while passing the order under review, the Bench has failed to consider the fact that the report submitted by the Commissioner was accepted by the writ petitioners and no objection was raised by them or similarly situated persons and thus, the decision of the learned Single Judge in denying an opportunity to the respondents-writ petitioners to appear in the PET afresh, was not open to be interfered with. Drawing the attention of the Court to the findings arrived at by the Division Bench by rendering the decision under review, learned AAG submitted that the Bench has seriously erred in observing that there was enough material to show that on all the dates, the tracks were badly affected due to rainfall inasmuch as, apart from the Commissioner's report, there was no material placed on record by the parties showing that the tracks were badly affected due to rainfall and thus, there was no occasion for the Division Bench to record the conclusion as aforesaid, ignoring the report submitted by the Commissioner which was duly considered by the learned Single Judge. Learned AAG submitted that by judgment under review, the Division Bench has interfered with the order passed by the learned Single Judge observing that cases of the respondents-writ petitioners cannot be differentiated qua the other writ petitioners whose writ petitions were allowed by drawing the distinction on the basis of the damage to the track being more or less.
Learned AAG submitted that by judgment under review, the Division Bench has interfered with the order passed by the learned Single Judge observing that cases of the respondents-writ petitioners cannot be differentiated qua the other writ petitioners whose writ petitions were allowed by drawing the distinction on the basis of the damage to the track being more or less. Learned AAG submitted that now since the decision of the learned Single Judge allowing the writ petitions of the writ petitioners in whose cases, the track was found wet-muddy, has also been set aside by the Division Bench and the decision in Revant Ram Meghwal's case (supra), the question of respondents-writ petitioners being entitled for an opportunity to re-appear for PET does not arise and thus, the order under review deserves to be recalled and the special appeals deserve to be dismissed. Learned AAG submitted that Special Leave Petition (24228/19) preferred by the writ petitioners before the Supreme Court in Revant Ram Meghwal's case (supra), has been dismissed by the Supreme Court vide order dated 14.10.19. 12. On the other hand, learned counsel appearing for the respondents submitted that by way of review petitions, the petitioners are seeking a fresh hearing of the matter, which cannot be countenanced by this Court. Learned counsel submitted that if the petitioners were aggrieved by the decision under review, the only course open to them was to prefer an SLP before the Supreme Court and since they have failed to avail the remedy available, the order under review has attained finality. Learned counsel submitted that even if two views are possible, it cannot be a ground for review. Learned counsel submitted that the Bench reviewing the decision cannot re-appreciate the entire evidence and sit in appeal and reverse the findings of earlier Division Bench. In this regard, learned counsel relied upon the decision of the Supreme Court in Meera Bhanja vs. Nirmala Kumari Choudhary, (1995) 1 SCC 170 . Learned counsel submitted that the petitioners have failed to point out any error apparent on the face of record and thus, the review petitions deserve to be dismissed on this count alone. In support of the contention, learned counsel relied upon decisions of the Supreme Court in State of Haryana & Ors.
Learned counsel submitted that the petitioners have failed to point out any error apparent on the face of record and thus, the review petitions deserve to be dismissed on this count alone. In support of the contention, learned counsel relied upon decisions of the Supreme Court in State of Haryana & Ors. vs. Mohinder Singh & Ors., JT 2002 (10) SC, 197, Union of India (UOI) vs. Sandur Manganese and Iron Ores Ltd. & Ors., (2013) 8 SCC 337 and Perry Kansagra vs. Smriti Madan Kansagra, 2019 (3) SCALE 573 . Learned counsel submitted that the State cannot be permitted to raise new grounds by way of review petitions by changing the counsel and thus, the review petitions deserve to be dismissed for this reason also. In support of the contention, learned counsel relied upon a decision of Andhra High Court in H.A. Mohan Kumar & Ors. vs. P. Muralidhar & Ors., 2005 (5) ALD 552. Learned counsel submitted that the ground that some candidates successfully completed the run, does not hold good as candidate who is more physically efficient, does not necessarily imply that the other candidates do not have the normal standard of physical efficiency as required under the Rules. 13. We have considered the rival submissions and perused the material on record. 14. There cannot be any quarrel with the proposition that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. But then, it is also well settled that the provisions of Order XLVII Rule 1 which provides for limits within which a review of a decree or order is permissible, is not directly applicable to the proceedings under Article 226 of the Constitution of India and as laid down by the Supreme Court in Shivdeo Singh vs. State of Punjab, AIR 1963 SC 1909 , the power of review of its own orders by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. 15.
15. Coming to the objection of the learned counsel appearing for the respondents that the State cannot be permitted to raise new grounds by way of review petitions by changing the counsel, suffice it to say that if the Standing Counsel/AAG appointed by the State have changed, obviously, the State would file the subsequent proceedings arising out of the original proceedings through the Standing Counsel/AAG newly appointed and thus, the objection sought to be raised by the learned counsel for the respondents is devoid of any merit. 16. A perusal of the order under review reveals that the appeals preferred by the respondents were allowed by the Division Bench on the premise that the learned Single Judge was not justified in distinguishing the cases of the respondents out of the group of the cases on the ground of relative condition of the track being wet-muddy/pretty muddy/slightly muddy/somewhat muddy/swampy. Noticing the findings of the Commissioner, the Court observed: "9. Under the circumstances the nuanced distinction drawn by the learned Single Judge as noted above is too tenuous. There is enough material to show that on all the dates the tracks were badly affected due to rainfall and merely because at a given time extent of damage to the track was more vis-à-vis other occasions would be no ground to draw the distinction as has not been drawn by the learned Single Judge." 17. Apparently, the Division Bench was of the view that regardless of the extent of damage to the track, the opportunity to re-appear for PET was required to be extended to all the candidates, who were made to run on the track found wet-muddy, due to rain irrespective of the extent of damage caused. The issue as to whether the candidates were at all required to be extended an opportunity to take part in a fresh run did not come up for consideration of the Court. 18. But then, while passing the judgment dated 22.5.19 in Shravan Kumar Choudhary's case (supra) arising out of the decision of the learned Single Judge, whereby the writ petition preferred by the candidate who participated in the run at Kota Stadium was dismissed, the Division Bench while considering the material placed on record held: "8.
18. But then, while passing the judgment dated 22.5.19 in Shravan Kumar Choudhary's case (supra) arising out of the decision of the learned Single Judge, whereby the writ petition preferred by the candidate who participated in the run at Kota Stadium was dismissed, the Division Bench while considering the material placed on record held: "8. The state has placed material on record to suggest that whatever be the circumstances, rain moisture or ideal track conditions, of the total number of candidates who participated on the basis of prevailing conditions, 45.52 qualified. The additional affidavit (concededly which is not part of the present appeal record as it is a part of the record in D.B. Civil Appeal No. 228/19) shows that the variation between the days like the one when the appellant was made to participate and other days when there was no rain, was not so significant as to result in arbitrariness. The chart which is produced alongwith the said additional affidavit shows that on an average on the best days-when weather conditions were normal, the number of qualified candidates were in the range of 63-64%; the lowest in such range was about 25%. In between, there were days on which the conditions were not ideal as in many venues it appeared to have been rained. Having regard to all these factors, it cannot be said that the conditions under which the present appellant was to participate in the PET were so poor as to deny him a level playing field. What is a matter of record is that 579 candidates did participate of whom 263 were successful and did qualify. In these circumstances, unless the result shows an extremely startling result where it can be discerned plainly that no candidate or a very insignificant number of candidates could qualify, the Courts should be very circumspect in returning a finding of arbitrariness. 9. The judgment of the Allahabad High Court, in the opinion of the Court is not applicable. It is primarily based on the reasoning that change in weather conditions result in the change in the rules of the game i.e. introducing rules later after the commencement of the recruitment process. The judgment of the Allahabad High Court, with respect, in the opinion of the court, does not correctly lay down the law. 10. One more consideration persuades this Court to decline relief.
The judgment of the Allahabad High Court, with respect, in the opinion of the court, does not correctly lay down the law. 10. One more consideration persuades this Court to decline relief. It is that out of 579 who participates, some were successful and some were not. Yet all of them did participate and accepted the conditions, as it were. Permitting the petitioner/appellant or any other candidate thereafter to take a re-test by directing the State to hold a fresh PET would itself be an unfair procedure as it would not only allow a few candidates who approach the Court to have a second short or attempt, or a second innings as it were, but also create an unfair advantage inasmuch as the conditions would be entirely different and perhaps favourable to the candidate. This would result in two yardsticks, being injected into (one whereby all others accept participate and are assessed under poor conditions, and the second whereby those who approach the Court are given a second chance, resulting in their competing in favourable conditions), in the same selection process, which is inherently untenable and contrary to Article 14 and cannot be permitted." (emphasis supplied) 19. It is noticed that the review petitions preferred arising out of separate orders passed by the Division Bench on one single day i.e. 22.5.19, have already been dismissed by a Bench of this Court vide order dated 20.11.19 of which one of us (Sangeet Lodha, J.) was a member and the SLP preferred against the Bench decision in Revant Ram Meghwal's case (supra), which was decided relying upon the decision in Shravan Kumar Choudhary's case (supra), stands rejected by the Supreme Court. 20. In view of the discussion above, when the basic judgment passed by the learned Single Judge allowing the writ petitions preferred by some of the candidates, stands set aside and it has been categorically held that allowing any candidate to take a re-test by directing the State to hold a fresh PET would itself be an unfair procedure as it would not only allow a few candidates who approached the Court to have second shot or attempt or second innings as it were but also creates an unfair advantage inasmuch as the condition would be entirely different and favourable to the candidate, the question of permitting the respondents to undergo a fresh PET, does not arise.
Suffice it to say that the basic premise on which the relief was extended to the respondents herein extending parity qua the candidates whose writ petitions were allowed by the learned Single Judge, does not survive and therefore, the judgment under review deserves to be recalled and the special appeals deserve to be dismissed. Obviously, if the respondents are permitted to retain the benefits flowing from the orders impugned, it will amount to extending them an undue advantage qua the candidates who were better placed as per the decision of the learned Single Judge, which already stands set aside. 21. There is yet another aspect of the matter. A perusal of the order under review reveals that inadvertently, it is recorded in the order that there is enough material to show that on all the dates, the tracks were badly affected due to rainfall, whereas, there was no material on record except the Commissioner's report relied upon by the learned Single Judge, indicating the condition of different tracks on the different dates and time and thus, the finding to this extent recorded by the Division Bench suffers from error apparent on the face of record. 22. In view of the discussion above, we allow the review petitions preferred by the State. The order under review dated 30.1.19 passed by a Bench of this Court in D.B. Special Appeals Nos. 1907/18, 52/19, 53/19 and 8/19 is recalled. The special appeals are dismissed. No order as to costs.