Rajasthan High Court - Jodhpur
The State Of Rajasthan vs Lokesh Verma Bhand on 28 January, 2021
Bench: Sangeet Lodha, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Review Petition (Writ) No. 19/2019
1. The State of Rajasthan, Through Its Secretary, Home
Department, Jaipur.
2. Director General of Police, Jaipur.
3. Superintendent of Police, Udaipur.
----Petitioners
Versus
Ravi Kumar Khateek S/o Amba Lal Khateek, Aged About 23
Years, Resident of Maliyo Ka Mohalla, Patwari Ke Pass, Kothariya,
Nathdwara, District - Rajsamand.
----Respondent
Connected With
D.B. Review Petition (Writ) No. 16/2019
1. The State of Rajasthan, Through Its Department of Home
Affairs, Govt. of Raj. Secretariat, Jaipur.
2. Director General of Police, Police Head Quarters, Jaipur.
3. The Inspector General of Police, (Recruitment), Police
Head Quarters, Jaipur.
4. The Superintendent of Police, Rajsamand, Rajasthan.
----Petitioners
Versus
Lokesh Verma Bhand S/o Shri Manohar Lal Bhand, Aged About
27 Years, By Caste SC, R/o Near Railway Station, Kunwariya,
Koaria, Rajsamand, Rajasthan.
----Respondent
D.B. Review Petition (Writ) No. 26/2019
1. State of Rajasthan, Through its Secretary, Department of
Home Affair, Govt. of Raj., Secretariat, Jaipur.
2. The Director General of Police, Police Headquarters,
Jaipur.
3. The Superintendent of Police, Rajsamand, Rajasthan.
4. The Inspector General of Police (Recruitment), Police
Head Quarters, Jaipur.
----Petitioners
Versus
(Downloaded on 28/01/2021 at 10:06:50 PM)
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Dipendra Singh Kumpawat S/o Shri Hari Singh Kumpawat, Aged
About 20 Years, By Caste Rajput, R/o Quarter No. 72, Reserve
Police Line, Rajsamand, Rajasthan.
----Respondent
D.B. Review Petition (Writ) No. 30/2019
1. State of Rajasthan, Through Its Secretary, Home
Department, Jaipur.
2. Director General of Police, Jaipur.
3. Inspector General of Police, Kota.
4. Superintendent of Police, Kota.
5. Police Commissioiner, Jaipur.
----Petitioners
Versus
Ashoka D/o Sh. Ram Lal, Aged About 19 Years, Shiv Mandir, Nedi
Nari, Tehsil Dhorimanna, District Barmer.
----Respondent
For Petitioner(s) : Mr. Sandeep Shah, Additional
Advocate General with Mr. Abhimanyu
Singh
For Respondent(s) : Mr. Hemant Dutt
Mr. Shreyansh Mardia
None present for respondent in
D.B.Review Petition (Writ) No.30/19
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
28th January,2021
PER HON'BLE MR. 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.
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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
12.48PM 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
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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. 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
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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-a-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. 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
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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. 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
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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 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
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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. 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
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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. 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-a-vis other occasions would be no
ground to draw the distinction as has not been drawn by the
learned Single Judge."
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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. 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
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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. 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-
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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
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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.
(MANOJ KUMAR GARG),J (SANGEET LODHA),J
Aditya/-
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