Ms Manju Rani vs State Of Raj And Anr
2021 Latest Caselaw 1396 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 5694/2018

Ms. Manju Rani W/o Shri Ranveer Singh, Resident Of A-33, F-2,
Classic Residency, Swej Farm, Sodala, Jaipur
                                                                      ----Petitioner
                                        Versus
1.      State    Of      Rajasthan           Through        Principal    Secretary,
        Department        Of      Information         And     Technology,      Yojana
        Bhawan, Tilak Marg, C-Scheme, Jaipur
2.      Rajasthan Public Service Commission, Ajmer Through Its
        Secretary
                                                                   ----Respondents

For Petitioner(s) : Mr. Bhrigu Sharma, Adv. with Mr. Akash Mathur, Adv. & Mr. Anshul Sharma, Adv.

For Respondent(s)             :    Mr. Harsh Sahu, Addl.GC
                                   Mr. Ashish Kumar, Adv.



     HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

                              Judgment / Order

Reserved On 02/02/2021
Pronounced On 09/02/2021

1.   By   way    of    filing      instant     writ    petition,    petitioner    has

challenged    action     of       the   respondents           in   not   considering

candidature of the petitioner for the post of Analyst-cum-

Programmer for which she applied under the advertisement dated

01/12/2014.

2. As per the advertisement, a candidate was required to

possess following qualifications:-

^^1- ;ksX;rk & 1. MCA or B.E./B.Tech. in information Technology or Computer Science or Electronics and Communications from a recognised

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University established by law in India or a qualification recognized as equivalent thereto by the Government OR M.Tech degree in Information Technology or Computer Science or Electronics and Communication from a recognised University established by law in India or a qualification recognised as equivalent thereto by the Government OR M.B.A (IT) from a University established by law in India or a qualification recognised as equivalent thereto by the Government AND

2. Three years' post qualification relevant work experience in legal entity such as Government Organisations/Government Undertakings/ Public Limited/ Private Limited Companies etc.

2- vfuok;Z ;ksX;rk & Working Knowledge of Hindi written in Devnagri Script and knowledge of Rajasthani Culture."

3. The petitioner possessed three years' experience of having

worked as a Software Engineer with 'Okruti IT Consulting Private

Limited' (for short, 'Okruti'). He participated in the examination

and was placed at No.15 in overall merit, however, the department

issued appointment order to 21 candidates for the post of Analyst-

cum-Programmer but name of the petitioner was not included.

4. The petitioner, therefore, submitted a representation to the

respondents for consideration but was not conveyed any reasons

for not including her name.

5. The petitioner thereafter obtained note-sheets of the

Department of Information Technology & Communication of the

Government of Rajasthan under Right to Information Act, 2005.

6. Learned counsel for the petitioner brought attention of this

Court towards the note-sheets from Note 80 and onwards which

reflect that the department sought information from the employer

(Okruti) relating to the experience certificate and upon receiving

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information from the employer (Okruti), an objection was raised

with regard to the information received from the employer to the

effect that the petitioner's employer had not mentioned the

voucher numbers in the ledger and merely month was mentioned

and as per the accounts procedure system the cash/general

voucher number must be mentioned in the main ledge, therefore,

the ledger was not in accordance with rules. The authority

thereafter took a decision that the petitioner has failed to establish

that she had experience of working in the entity mentioned by her

and a decision was taken not to consider her as per Note No.87

which was approved by the Principal Secretary, IT & C.

7. Learned counsel for the petitioner further submitted that

while all the aforesaid proceedings were conducted with regard to

verification of her experience certificate, no notice at any given

point of time was served upon her nor she was given any

opportunity of hearing and behind her back the experience

certificate submitted by her was declared as not acceptable and

her candidature was rejected although she stood at merit no.15.

8. Learned counsel for the petitioner has further taken this

Court to the note-sheets of one other candidate Ms. Ritu Bhaskar

who was at merit no.16 as per the list provided by Rajasthan

Public Service Commission and was lower in merit to the

petitioner. In the case of Ms. Ritu Bhaskar, the work experience

was that of a Junior Research Fellow and Senior Research Fellow in

a Division of Defence Laboratory, Jodhpur which was not accepted

earlier as regular work experience as it was not done in the

capacity of permanent duty. Upon the representation being made

by Ms. Ritu Bhaskar, as noted from note-sheets No.104/N

onwards, the SA (Jt. Dir.) Dolt& C has submitted a note-sheet

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No.111/N to amend the experience of Junior Research Officer/

Senior Research Officer to be included for the purpose of the post

and he proceeded to amend the experience in the advertisement

and the same was approved by the higher authorities and

proposal was sent for appointment of the concerned Ms. Ritu

Bhaskar as Analyst-cum-Programmer although such experience

was not mentioned in the advertisement.

9. Learned counsel for the petitioner further submitted that

upon receiving such documents under Right to Information Act,

2005 the petitioner demanded a proper ledger certificate from

'Okruti' i.e. her previous employer and 'Okruti' provided all the

documents including copy of the vouchers relating to appointment

slip of each month bearing the relevant number. The appointment

order of the petitioner with 'Okruti' and relieving order have also

been placed on record. Learned counsel for the petitioner has also

placed on record documents with rejoinder and submitted that

when all these documents were sent to the Department of

Information Technology & Communication, a reply was received on

30/04/2018 stating that as the writ petition is pending before the

Court, the said documents cannot be examined and decision would

be taken as per decision of the High Court on writ petition.

Learned counsel further submitted that while representation of

said Ms. Ritu Bhaskar was accepted, the documents submitted by

the petitioner were not even examined. It is submitted that the

rejection of candidature was not communicated to petitioner nor

she was given any opportunity. The respondents did not even ask

for a clarification from the concerned employer relating to the

experience certificate. At the same time, from the perusal of the

note-sheets, it is apparent that the respondents did not deny the

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experience gained by the petitioner and merely because the

clarificatory order mentioning about the pay slips was not in

accordance with the Indian Accounting System and the ledger was

found to be not in proper form, the petitioner's candidature for the

post could not have been denied.

10. Learned counsel for the petitioner further submitted that

while issuing notices, this Court vide order dated 15/03/2018,

directed to keep one post vacant of the category of petitioner in

the recruitment process. However, the RPSC while filing reply to

writ petition has informed that candidature of the petitioner has

been rejected on 08/06/2018 on the information received from the

IT Department on the ground that experience certificate could not

be verified. Learned counsel further submitted that the experience

certificate had been duly verified and salary to the petitioner for

each month was also informed. Merely because number of the

voucher was not mentioned and the date of release of salary was

itself mentioned, the experience of the petitioner cannot be

obviated.

11. Per-contra, learned counsel for the respondents supported

action of the respondents and submitted that the petitioner has

not been able to show that she had done three years of work with

'Okruti' and the 'Okruti' persons had sent the ledger of payment of

salary which was not in accordance with the Indian Accounting

System and therefore, case of the petitioner was not considered

for appointment and the certificate was found to be not proved.

12. A specific query was asked from counsel for the respondents

as to why no opportunity of hearing was provided to the petitioner

to which he has shown his ignorance. He has also feigned

ignorance relating to the consideration of the case of Ms. Ritu

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Bhaskar for appointment and as to how the representation of Mr.

Ritu Bhaskar came to be accepted while no other one was

conveyed about rejection of candidature. He also has not been

able to explain as to how the experience was amended in favour

of Ms. Ritu Bhaskar and she was offered appointment although as

per the experience mentioned in the advertisement, she did not

possess the experience of working on any post and only possessed

research experience.

13. This Court notices that the said Ms. Ritu Bhaskar was at

No.16 in merit while the petitioner was at No.15 in merit. It is an

admitted position that no show cause notice was given to the

petitioner for rejecting her candidature although name of the

petitioner was in the select list sent by the RPSC. No explanation

was sought relating to the experience certificate. This Court also

notices that the documents were made available by the petitioner

with regard to the experience certificate and the corrected ledger

was also supplied by 'Okruti' including vouchers bearing number

but the said documents were ignored by taking specious plea of

pendency of the writ petition.

14. There is no law that the respondents should not take a

decision on a representation merely because writ petition is

pending. In fact, if the State authorities realize that the stand

taken by them requires to be amended or corrected, they should

pass orders accordingly so that much time of the Court is saved. It

would make the things simpler and the writ petition can be

disposed of in terms of the decision taken by the Government.

15. Having said so, this Court finds that the petitioner's

experience certificate has not been doubted as such to be

fraudulent or that the petitioner does not have actual certificate of

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'Okruti'. The only objection was with regard to the ledger being

not in accordance with the Indian Accounting System. For this

purpose, the clarification always could have been taken which was

not done. The action of the respondents, therefore, is found to be

wanting and the decision taken on the note-sheet for not

considering candidature of the petitioner for appointment is found

to be unjustified. The action is also found to be in contravention of

the principles of natural justice as no opportunity was provided to

the petitioner. A higher meritorious candidate cannot be allowed to

be left out from appointment, moreso, when a lower meritorious

candidate has been given indulgence and even amendment has

been made in the advertisement which has been accepted for the

purpose in the case of Ms. Ritu Bhaskar. Since Ms. Ritu Bhaskar is

not a party to the present writ petition, this Court would refrain

from passing any order in relation to her. However, it is a matter

of enquiry to be conducted by the Chief Secretary of the

Government of Rajasthan in relation to the decision making

process adopted by the authorities for offering appointment to Ms.

Ritu Bhaskar.

16. Law is well settled that relaxation in an advertisement can

only be made after due publicity and if the same is made without

publication, it would be contrary to the mandate of equality as

enshrined under Article 14 and 16 of the Constitution. Moreover,

such a power of relaxation in terms and conditions of the

advertisement can only be made if such a power is specifically

reserved in the rules as held by the Apex Court in Sanjay K.

Dixit & Ors. Vs. State of Uttar Pradesh & Ors. & other

connected cases :2019(17) SCC 373.

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17. So far as the petitioner is concerned, this Court is satisfied

that the candidature of the petitioner was wrongly denied and as

she is already at merit No.15 as per select list, there was no

occasion to cancel her candidature by the RPSC on the basis of the

recommendations of the respondent-department. The order

passed by the RPSC also goes contrary to the interim directions

issued by this Court dated 15/03/2018 whereby one post of the

category of the petitioner was kept. The rejection made

subsequently to filing of the writ petition and passing interim order

is, therefore, held to be nullity in the eyes of law and is

accordingly declared so. The rejection order/letter dated

08/06/2018 is, therefore, liable to be ignored.

18. In view of the aforesaid findings and discussions, this Court

concludes that the action of the respondents in not including name

of the petitioner in the appointment order is illegal, arbitrary and

unjustified. The petitioner would be entitled to be included in the

list of appointees as per her merit forwarded by the RPSC. The

experience gained by the petitioner shall be counted and the

petitioner would be entitled to be considered for appointment from

the date the persons lower in merit have been appointed as

Analyst-cum-Programmer with all consequential benefits. The

petitioner shall be deemed to be appointed from the date the

lesser meritorious persons have been appointed as Analyst-cum-

Programmer and would also be entitled to the benefit of all pay-

fixations accordingly. However, the same shall be treated as

notional and the actual benefits shall be payable only from the

date of passing of this order.

19. Since the petitioner has been unnecessarily made to suffer,

she is liable to get cost which is quantified to Rs.25,000/-.

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                                   Necessary       compliance       shall     be     made        within   fifteen   days

                                   henceforth.

                                   20.      The   writ   petition    is     accordingly        allowed.   All   pending

                                   applications stand disposed of.



                                                                                 (SANJEEV PRAKASH SHARMA),J

                                   Raghu/









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