Babu Lal S/O Mehra Ram vs Rajasthan Public Service ...
2021 Latest Caselaw 2857 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 9595/2020

Babu Lal S/o Mehra Ram, Aged About 35 Years, R/o Village
Lapundra Barthan, Tehsil Gida, District Barmer, Rajasthan.
                                                                       ----Petitioner
                                       Versus
1.       Rajasthan      Public      Service        Commission,         Through    Its
         Secretary, Ajmer.
2.       State     Of     Rajasthan,          Through         Principle     Secretary
         Department        Of    Personnel         And      Training      Government
         Secretariat, Jaipur.
3.       The Secretary, Rural Development And Panchayati Raj
         Department, Rajasthan, Jaipur.
                                                                    ----Respondents

For Petitioner(s)            :     Mr. R.P. Saini.
For Respondent(s)            :     Mr. M.F. Baig.
                                   Mr. Karan Mahla for Ms. Sheetal
                                   Mirdha, AAG.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

13/07/2021

Counsel for the respondents submitted that the issue

involved in this writ petition has already been considered and

decided by this court in the matter of Mukesh Kumar Vs. The

State of Rajasthan & Ors. (S.B. Civil Writ Petition

No.12771/2020) where in on 07.07.2021, the following order was

passed:-

"1. This writ petition has been filed by the petitioner with the following prayer:-

"In these circumstances, it is, therefore, prayed that this Hon'ble Court may be pleased to accept this writ petition and

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i) the impugned rejection letter dated 08.10.2020 denying correction in application of petitioner for addition of Non-Gazetted employee category may kindly be declared as illegal and arbitrary therefore, it may kindly be quashed and set aside;

ii) the respondents may kindly be directed by writ of mandamus, order or direction in the nature thereof,

a) to add the category of Non-Gazetted Employee (NGE) in the application form of petitioner;

b) to consider the candidature of petitioner as MBC (Non-creamy) category and Non-Gazetted Employee category candidate at the time of declaring the final result of RAS & RTS Examination, 2018;

c) to consider the candidature of petitioner as MBC (Non-creamy) category and Non-Gazetted Employee category candidate in further selection process of RAS & RTS Examination, 2018;

d) to give appointment to humble petitioner as per his merit with all consequential relief;

iii) Any other appropriate order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of this case may kindly also be passed in favour of the petitioner."

2. Counsel for the petitioner submits that the respondent-RPSC vide order dated 01.07.2020 (Annexure-17) allowed the change of category from OBC to MBC, however, no such opportunity was given to the candidates like petitioner for changing of category. Counsel further submits that the result of interview has not been declared as yet, therefore, prayed that he may also be allowed to change his category in view of the order dated 01.07.2020 passed by the respondent-RPSC.

3. Counsels for the respondents have opposed the writ petition and submitted that the issue involved in this writ petition has already been considered and decided by the Division Bench of this court at Principal seat Jodhpur in the matter of Piyush Kaviya & Ors Vs. RPSC & Ors. (D.B. Spl. Appl. Writ No.198/2018 along with other connected matters) vide judgment dated 10.04.2018 where in paras No.20, 24, 25, 29, 31 & 32, it has been held as under:-

"20. From the facts noted hereinabove the factual position which clearly emerges is that when the Commission issued the advertisement inviting applications from eligible candidates on 28.4.2016, it categorically made known to the candidates that online applications had to be submitted between 10th May, 2016 till mid-night of 25th June, 2016 and further that amendments could be made in the on-line application forms submitted between 26.6.2016 till the mid-night of 25.7.2016 and by way of special information it was made known that no amendment to the on-line applications would be entertained after the last date indicated in the advertisement by which the amendment in the on-line applications could be made had elapsed. Thus, the decision taken by the

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Commission on 7th May, 2015 for not permitting any amendment in the on-line application forms to be made after the last date notified to the candidates by which amendment could be made had elapsed was made known to the candidates.

24. A plain reading of Note No.5 makes it very clear that attention of the candidate, to whom the admission card was issued, is drawn to the fact that he should check up the particulars mentioned in the admission card and this would obviously means the particulars as mentioned by the candidate in his application form. If there is any discrepancy the same should be brought to the notice of the Commission and that said exercise must be completed before the date of the final examination, evinced by the wording of the Note i.e. after the date of the examination no application for correction shall be entertained.

25. In view of the unambiguous and clear language in the advertisement which gave one month time after the last date for submitting on-line applications for corrections to be made and clearly indicated that no application for correction in the on-line application forms would be accepted thereafter, there is no scope to interpret Note No.5 in the admit card as done by the learned Single Judge. That apart the language of the Note admits of no two interpretations. The language is clear. It permits the applicants to bring to the notice of the Commission any error in the admit card concerning the candidate and said error has to be a mismatch between the particulars disclosed by the candidate in the on-line application and admit card. Thus, the question of any promissory estoppel binding the Commission does not arise.

29. It needs to be highlighted that seeking public employment the number of applicants swell into thousands for every appointment offered. The cumbersome process of processing the applications manually and at each stage of the selection process manual intervention being time consuming, aid of technology is being taken. On-line applications are being received. Opportunities to correct mistakes in the on-line application forms are provided by opening a window period. When the window period closes, the forms, applications etc. as amended are processed. The computer generates the admit cards. The results of the examination are fed in the computer for various categories of posts and in the instant case, the number being 30, select list based on merits and categories are generated by the computer. The candidates need to be vigilant and specially when, as in the instant advertisement, they were cautioned time and again to check their particulars and a window period within which corrections could be made was made available to the candidates.

31. Thus, the conflict between merit and public interest subserved by timely filling up of public posts has to be balanced. The balance is stuck in the instant case by

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giving a window period to the candidates to correct the on-line application forms. The balance was stuck by prohibiting any application to be submitted after last date notified.

32. The writ petitioners were negligent. They never disclosed in the on-line application forms submitted that they were non-gazetted Government employees. Thus, it was too late in the day for them to seek change in the category in which they had applied after the admit cards were issued by informing the Commission that they were non-gazetted Government employees."

4. Heard counsel for the parties and perused the record.

5. In my considered view, the issue involved in this writ petition is covered by the judgment passed by the Division Bench of this court at Principal seat Jodhpur in the matter of Piyush Kaviya (supra) wherein the Division Bench of this Court dismissed the writ petitions filed on behalf of the candidates with regard to change of their category at a belated stage.

6. In the facts and circumstances of the present case, I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

7. In that view of the matter, this writ petition stands dismissed.

8. All the pending applications stand disposed of.

Counsel further submits that another issue involved in this

writ petition has already been considered and decided by this

court in the matter of Shatendra Kumar Vs. Rajasthan Public

Service Commission & Ors. (S.B. Civil Writ Petition

No.4494/2021 along with other connected matters) where in on

09.07.2021, the following order was passed:-

"These writ petitions being identical, with consent of parties have been heard together and are being decided by the present order. The prayer made in the writ petition-CWP-4427/2021 reads as under:-

"It is therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to accept and allow this writ petition and further be pleased to :

i) Issue an appropriate writ order or direction in the nature thereof thereby, the respondents be directed to call the petitioners in the interview process for the post of RAS- 2018 (Raj. State and

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Subordinate Services-2018) and if they succeed in the interview process then give appointment to them.

ii) Issue an appropriate writ order or direction in the nature thereof thereby, the respondents be directed to oust the ineligible candidates who does not pertains to Department candidates Category (Rajasthan Cooperative Subordinate Services) Category and wrongly filled up their form under DC Category, for the post of RAS pre/ main Exam-2018.

Iii) Issue an appropriate writ order or direction in the nature thereof thereby, the respondents be directed to include the candidates in the selection process for the post of RAS-2018 DC (Rajasthan Cooperative Subordinate Services) Category who have taken permission to appear in the examination of RAS-2018 from the Rajasthan Cooperative Societies.

iv) Issue an appropriate writ, order or direction in the nature thereof thereby the result of RAS Pre dated 23.10.2018 by which they have selected ineligible candidates and Result dated 09.07.2020 and cut off list pertaining to RAS (Main) Examination, 2018 (Non TSP) (Mains), be declared illegal and same be quashed and set aside and thereby the respondent RPSC directed to issue fresh amended result by including the petitioners in the selection process.

v) Issue an appropriate writ order or direction in the nature thereof thereby the respondents may kindly be directed not to carry forward the post of Department Candidates Category and not fill up the posts of DC Category through normal procedure and further the action of the respondents be declared illegal by which they have illegal failed the petitioners in the RAS Pre Exam and also cancelled their RAS Main Exam.

vi) Issue an appropriate writ, order or direction in the nature thereof thereby, the respondents may kindly be directed to select 2.5 times candidates instead of 1.9 times candidates for participating in the interview process pursuant to RAS (Main) Examination, 2018.

vi) Pass any other appropriate order which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the petitioners.

vii)Cost of the writ petition be also awarded in favour of the petitioners."

Brief facts of the case are that in pursuance to the advertisement dated 02.04.2018 issued by the respondent-RPSC the petitioners applied for the subject post in Rajasthan State and Subordinate Services and participated in the preliminary

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examination which was held on 05.08.2018. Result of the preliminary examination was declared on 23.10.2018 and the result of main examination was declared on 09.07.2020, thereafter extended result was also declared on 12.03.2021. According to the information of the petitioners, now the interviews are going on for which the last date scheduled is 13.07.2021.

Counsel for the petitioners submits that at earlier point of time the petitioners also filed S.B. Civil Writ Petition No.2763/2019 & 26171/2018 which were dismissed vide order dated 18.10.2019 as having become infructuous as the petitioners were lower in the merit. The order dated 18.10.2019 reads as under:-

"The petitioner was allowed vide order dated 29.05.2019 to participate in the RAS/RTS Main Examination2018 as a Departmental Candidate for the post of Excise Inspector, which was one of the post included in the RAS and allied Examination- 2018. The notice was served as the RPSC had not declared a separate cut-off for the departmental candidates and the Excise Department as well as the Tax Department. After notices have been served, RPSC filed its reply and they have now declared a separate cut-off and result for the Rajasthan Sale Tax Subordinate Service and that Rajasthan Excise Subordinate Service and other subordinate services on 31.05.2019 and cut-off has also been declared.

In view thereof, learned counsel for petitioner has pointed out that he has not been able to get the cut-off marks as laid down by the RPSC, however, he wants to challenge the result prayed for Rajasthan Excise Subordinate Service as those who have not even taken permission as departmental candidates were allowed by the RPSC for being declared in the said category. I have considered the submissions and find that the petitioner has not raised any such submission in the present writ petition. In view thereof, the writ petition upon declaration of the result separately of Rajasthan Excise Subordinate Service has been rendered as infructuous. By an interim order as has noticed above, the petitioner was allowed to appear in the main examination, however, this court finds that he has not obtained the cut-off thus his result cannot be declared. However, this interim order shall be made protective by declaring these writ petitions as having become infructuous and granting liberty to the petitioner to challenge the result of the Excise Subordinate Service as declared by the RPSC on the grounds which he wants to take. Any

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order which may passed by the court in the said writ petitions, if so filed, would govern the result of the petitioner.

With the aforesaid, writ petitions stand disposed of."

Counsel further submits that earlier the petitioners were given liberty to file fresh writ petition. Counsel further submits that the petitioners belong to departmental category and the respondent-RPSC is not selecting the candidates as per terms and conditions of the advertisement. Counsel further submits that the respondents are violating Rule 15 of the Rajasthan State and Subordinate Service Rules.

Counsel further submits that the respondent- RPSC is selecting ineligible candidates and prayed that the respondent-RPSC be stopped from recruiting ineligible candidates.

Counsel appearing on behalf of the respondent-RPSC submitted that the petitioners have filed the writ petitions at belated stage when the interviews are going to be completed on 13.07.2021 itself. Counsel further submits that the petitioners even have not qualified in the preliminary examination and the petitioners have failed to implead the persons as party respondent in the writ petitions for whom they have alleged to be ineligible in view of the prayer made in the writ petitions. Counsel further submits that after participating in the selection process with open eyes, the petitioners are estopped to question the process of selection in view of the judgment passed by the Hon'ble Supreme Court in the matter of Ashok Kumar & Anr. Vs. State of Bihar & Ors. reported in (2017) 4 Supreme Court Cases 357 wherein paras No.13 to 18 it has been held as under:-

"13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002), this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar MANU/SC/7926/2007 : (2007) 3 SCC 100, this Court held that:

"18. It is also well settled that those candidates

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who had taken part, in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.(See Munindra Kumar v. Rajiv Govil (1991) and Rashmi Mishra v. M.P. Public Service Commission).

14. The same view was reiterated in Amlan Jyoti Borroah where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.

15. In Manish Kumar ShahI v. State of Bihar, the same principle was reiterated in the following observations:(SCCp.584, para 16)

"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court Under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in Madan Lal v. State of J &K, Marripati Nagaraja v. Government of Andhra Pradesh, Dhananjay Malik and Ors. v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines.

16.In Vijendra Kumar Verma v. Public Service Commission, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The Appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.

17. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the Respondents would not have raised any objection to the

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selection process or to the methodology adopted. Having taken a chance of selection, it was held that the Respondents were disentitled to seek relief Under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that (SCC P.318, para18) "18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome".

18.In Chandigarh Admn. v. Jasmine Kaur, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, this Court held that:(SCC P. 500, para17) "17. Moreover, we would concur with the Division Bench on one more point that the Appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the Appellants did not challenge it at that time. This, it appears that only when the Appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."

This principle has been reiterated in a recent judgment in Madras Institute of Development Studies V. S.K. Shiva Subaramanyam."

Heard counsel for the parties and perused the record.

The writ petitions filed by the petitioners deserve to be dismissed for the reasons firstly; the petitioners have prayed in these writ petitions that ineligible candidates be ousted from the process of selection but the petitioners have failed to implead any such person as party respondent in the writ petitions; secondly, the petitioners are estopped to question the process of selection after participating in the same, after being lower in the merit as per result declared by the RPSC; thirdly, on the basis of information received in reply under RTI given to them which supplied to them way back on 28.07.2019, the petitioners have filed writ petitions

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after a delay of almost two years; lastly, i n the facts and circumstances of the present case, I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India at such a belated stage.

Hence, these writ petitions stand dismissed

Counsel appearing on behalf of the petitioner has not

disputed the submissions made by the counsel for the

respondents.

In that view of the matter, this writ petition stands dismissed

in view of the judgments passed by this court in the matter of

Mukesh Kumar (supra) and in the matter of Shatendra Kumar

(supra).

Petitioner is at liberty to file fresh writ petition challenging

the order dated 29.03.2019 (Annexure-10) if so advised.

(INDERJEET SINGH),J

MG/49

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