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Rajasthan High Court · body

2021 DIGILAW 2322 (RAJ)

Aashish Kumar v. State of Rajasthan

2021-12-14

ARUN BHANSALI

body2021
ORDER 1. These writ petitions have been filed by the petitioners aggrieved against the non-consideration of their candidature by the respondents pursuant to the Constable Recruitment-2019. 2. The respondents initiated the recruitment process by notification dated 04.12.2019 for the post of Constable General. The petitioners applied for the post of Constable General (TSP). After passing the written examination and undergoing physical efficiency test, the petitioners were expecting appointment, however, when they were not accorded appointment, petitioners sought information regarding the reason for their non-appointment. 3. The petitioners were informed that as their height was less than the minimum required height i.e. 168 Cms. and though they were passed in physical efficiency test by according relaxation to them, as candidates having the requisite height i.e. 168 cms. were available, they were accorded appointment, though the selected candidates were lower in merit than the petitioners. 4. Learned counsel for the petitioners made submissions with reference to provisions of Rule 14 of the Rajasthan Police Subordinate Services Rules, 1989 ('Rules of 1989'), which deals with the physical fitness indicating that the minimum height of the candidates belonging to tribal area is required to be not less than 160 Cms. and as the petitioners have height 160 Cms. / more than 160 cms., they were eligible. 5. Further submissions were made that the action of the respondents in excluding the petitioners based on the fact that candidates belonging to tribal area having requisite height of 168 Cms. were available, is incorrect, inasmuch as, the said provision in the Rule is not applicable for tribal areas, as the same is confined to SC/ST candidates and, therefore, the action of the respondents in not according appointment to the petitioners on the said ground is not justified. 6. It was prayed that the respondents be directed to indicate the petitioners' marks and in case they have obtained marks more than the cut-off meant for their category, they may be accorded appointment. 7. Learned counsel also pointed out that interim orders have been granted requiring the respondents to keep one post vacant in each of the petitions. 8. 6. It was prayed that the respondents be directed to indicate the petitioners' marks and in case they have obtained marks more than the cut-off meant for their category, they may be accorded appointment. 7. Learned counsel also pointed out that interim orders have been granted requiring the respondents to keep one post vacant in each of the petitions. 8. Learned AAG made submissions that the reliance placed by the petitioners on the proviso (i) to Rule 14 (2) of the Rules of 1989 is misplaced, inasmuch as, by notification dated 02.03.2020, the Rule 14 has been amended, whereby, the existing proviso (i) of Sub Rule 2 of Rule 14 has been deleted. 9. Further submissions were made that in the advertisement dated 04.12.2019, there was a specific stipulation that the amendments, if any, which takes place during the course of the recruitment, would be applicable and as such, the petitioners in view of the amendment made in proviso to Rule 14 (2) of the Rules being ineligible, the petitions deserve 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. The facts as noticed, hereinbefore, are not in dispute, wherein, the petitioners belong to TSP area and have filled up their forms for the post of Constable General (TSP). 12. As per the result of the candidates produced by learned AAG under the directions of the Court, all the petitioners have obtained marks higher than the cut-off meant for their category i.e. TSP/Gen. or TSP/ST in their respective districts i.e. Sirohi, Udaipur or Pratapgarh. Further all the candidates have height 160 Cms. / more than 160 Cms. but less than 168 cms. 13. The provisions of Rule 14 of the Rules of 1989, which deals with physical fitness of the candidates under Sub Rule 2 deals with the required height of the candidates, the same alongwith the relevant proviso reads as under:- "(2) Except in the case of women candidates, no candidate, who is less than 168 Cms. in height and whose deflated chest measurement is less than 81 Cms. and inflated less than 86 Cms. with a minimum 5 Cms. in height and whose deflated chest measurement is less than 81 Cms. and inflated less than 86 Cms. with a minimum 5 Cms. expansion of chest shall be deemed to be physically fit: Provided that- (i) The minimum height of the candidates belonging to the Hill and the Tribal areas shall not be less than 160 Cms, and their deflated and inflated chest should not be less than 79 & 84 Cms. respectively, (ii) The height and weight of women candidates may not be less than 152 Cms. and 47.5 Kgs. respectively, (iii) Candidates belonging to the Scheduled Castes and Scheduled Tribes whose height and chest measurements are less by 5 Cms. shall be deemed to be physically fit in case requisite number of suitable SC/ST candidates possessing physical fitness standards as laid down in Rule 14 (2) are not available." (emphasis supplied) 14. A perusal of the above Rule reveals that the minimum height required for a candidate under the Rule is 168 Cms, however, proviso (i) provides that minimum height of the candidates belonging to tribal area shall not be less than 160 Cms. There is a specific distinction between candidates belonging to tribal areas and those belonging to the SC & ST categories as proviso (iii) (supra) indicates that candidates belonging to SC & ST, whose height is less by 5 cms. shall be deemed to be physically fit, in case, requisite number of suitable SC/ST candidates possessing physical fitness standards as laid down in Rule 14 (2) are not available. 15. The proviso (iii), which pertains to relaxation to SC/ST candidates has been circumscribed i.e. in case, requisite number of suitable ST/ST candidates with normal height i.e. 168 Cms. are not available than only candidates with relaxation of 5 cms. in height are taken as eligible, however, there is no such condition attached to proviso (i), which pertains to the tribal areas. 16. In view thereof, from the plain reading of the proviso (i) it is apparent that candidates of tribal areas having height of 160 Cms. are eligible. The said aspect has also been reflected in the advertisement also at Condition No.7 (viii). 17. The only plea raised by the respondents in reply, pertains to the amendment of the proviso to Rule 14 vide notification dated 02.03.2020. 18. The relevant part of the notification, reads as under:- "1. are eligible. The said aspect has also been reflected in the advertisement also at Condition No.7 (viii). 17. The only plea raised by the respondents in reply, pertains to the amendment of the proviso to Rule 14 vide notification dated 02.03.2020. 18. The relevant part of the notification, reads as under:- "1. Short title and commencement.- (1) These rules may be called the Rajasthan Police Subordinate Service (Amendment) Rules, 2020. (2) They shall come into force from the date of their publication in the Official Gazette." 3. Amendment of rule 14.- In rule 14 of the said rules,- (1) the existing provisos to sub-rule (2) of rule 14 shall be substituted by the following, namely-"Provided that,- (i) the height and weight of women candidates of any category shall not be less than 152 centimetre and 47.5 kilogram respectively, except Sahara candidates, (ii) candidates belonging to the Scheduled Castes and Scheduled Tribes whose height and chest measurements are less by 5 centimetres shall be deemed to be physically fit in case requisite numbers of suitable Scheduled Castes/Scheduled Tribes candidates possessing physical fitness standards as laid down in sub-rule (2) of rule 14 are not available." 19. A perusal of the relevant part of the notification dated 02.03.2020 would reveal that the amendments have been indicated to come into force from the date of their publication in the official Gazette. 20. Further by amendment of Rule 14, the existing proviso (i), which granted relaxation to candidates belonging to tribal area, has been deleted and rest of the provisions has been amended. 21. The language of the notification is very clear, wherein, the same shall come into force from the date of its publication in the Official Gazette. Though, the date on which the notification has been published in the Gazette is not available, however, even if 02.03.2020, the date of notification is taken as the date of publication, the same is after the advertisement dated 04.12.2019 and as such, the same cannot be of any application to pending recruitment. 22. The respondents have placed reliance on the two stipulations made in the advertisement for applying the notification dated 02.03.2020 to the present recruitment, which reads as under:- 23. 22. The respondents have placed reliance on the two stipulations made in the advertisement for applying the notification dated 02.03.2020 to the present recruitment, which reads as under:- 23. A perusal of the above would indicate that the State has sought to keep the power, to amend the Orders, Circulars or Rules, during the course of the recruitment process and has indicated that same would apply to the pending recruitment, however, the said stipulation in the advertisement, cannot be used against the stipulation made in the Rule itself. As already noticed hereinbefore, the notification dated 02.03.2020 itself indicates that the same shall come in force 'from the date of its publication in the Official Gazette'. 24. Once the notification itself indicates that the same will be prospective by mere insertion of the clauses in the advertisement as noticed, hereinbefore, for which also there is no statutory backing, the notification which taken away the eligibility of the candidates during the course of recruitment cannot be made applicable retrospectively. 25. Consequently, the plea raised by the State in this regard based on the stipulations made in the advertisement, cannot be accepted. 26. In view of the above, as the petitioners are eligible in view of the proviso (i) to Rule 14 (2) of the Rules of 1989, the rejection of their candidatures by holding them ineligible relying on the notification dated 02.03.2020 cannot be sustained. Further, in view of the fact that the petitioners have obtained marks higher than the cut-off as produced by learned AAG during the course of submissions in a tabular form, as noticed hereinbefore, they are entitled to the relief as prayed. 27. Consequently, the writ petitions filed by the petitioners are allowed. The rejection of petitioners candidature by the respondents is quashed and set-aside. As the respondents have obtained marks higher than the cut-off, they are directed to be granted appointment, if they are otherwise eligible, with all the consequential benefits, however, the petitioners would be entitled to monetary benefits from the date they join pursuant to the orders passed by the respondents. 28. The process be initiated by the respondents within a period of four weeks.