Vedram Gurjar S/O Shri Girraj ... vs State Of Rajasthan
2021 Latest Caselaw 6437 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              D.B. Civil Writ Petition No. 10371/2020

1.     Vedram Gurjar S/o Shri Girraj Singh, Aged About 36
       Years, R/o Village Chandan Gaon, Post Shri Mahaveerji,
       Tehsil Hindaun City, District Karauli
2.     Rameshwar Gurjar S/o Shri Manna Ram Gurjar, Aged
       About 40 Years, R/o Village Sabdawali, Post Baswa, Tehsil
       Baswa, District Dausa, At Present R/o C-1A, Maa Veshno
       Nagar, Lalarpura, Gandhi Path (West), Jaipur
                                                                  ----Petitioners
                                   Versus
1.     State Of Rajasthan, Through The Principal Secretary,
       Department       Of     School       Education,          Government    Of
       Rajasthan, Secretariat, Jaipur
2.     The Secretary, Department Of Personnel, Government Of
       Rajasthan, Secretariat, Jaipur
3.     The Director, Secondary Education, Rajasthan, Bikaner
4.     Rajasthan Public Service Commission, Ajmer, Through Its
       Secretary
                                                                ----Respondents

For Petitioner(s) : Mr. Satyapal Poshwal with Mr. Vipin Gupta For Respondent(s) : Mr. C.L. Saini, AAG Mr. Amit Lubhaya through VC

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA Order

15/11/2021

Petitioners have challenged the vires of Clause (iii) of second

proviso Rule 11 of the Rajasthan Educational Subordinate Service

Rules, 1971 (hereinafter to be referred as 'the said Rules') in the

following background:-

(2 of 8) [CW-10371/2020]

The petitioners are Ex-servicemen. The Rajasthan Public

Service Commission had advertised several posts for Senior

Teachers in Government schools on 09.04.2018. As per the

advertisement, the application could be filed between 10.05.2018

to 09.06.2018. Corrections in the applications made could be done

between 10.06.2018 to 16.06.2018. The selection was to be made

on the basis of written examination alone. In other words, there

would be no oral interview but the selected candidate would be

counseled before issuing the appointment orders. The date of this

written examination was not published in the advertisement. It

was held on 01.11.2018. The result of the written examination

was published on 08.08.2019 and the counseling took place on

29.11.2019 and 02.12.2019.

Rule 11 of the said Rules pertains to academic and technical

qualification and experience. Sub-Rule 1 of Rule 11 provides that a

candidate for direct recruitment to the post mentioned in the

schedule, shall in addition to such experience as required, possess

qualification given in Column 4 of the Schedule and working

knowledge of Hindi written in Devnagri script and knowledge of

Rajasthani culture. Second proviso of this rule which is relevant

for our purpose, reads as under:-

"Provided that the person who has appeared on is appearing in the final year examination of the course, which is requisite educational qualification for the post as mentioned in the rules or Schedules for direct recruitment, shall be eligible to apply for the post but he/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency:-

(a) before appearing in the main examination, where selection is made through two stages of written examination and interview;

(3 of 8) [CW-10371/2020]

(b) before appearing in interview, where selection is made through written examination and interview;

(c) before appearing in the written examination or interview where selection is made through only written examination or only interview as the case may be."

As per this proviso, thus a person who has appeared or is

appearing in final examination of the course which is an essential

qualification for the post in question will also be eligible to apply

but he or she will have to submit proof of requisite qualifications

to the selection agency as mentioned in three clauses (a) to (c)

contained therein. If we analyse these three clauses, the

requirement of showing proof of acquisition of requisite

qualification is trifurcated. Clause (a) provides cut off date as one

before appearing in main examination where selection is made

through two stages of written examination followed by interview.

As per clause (b), such cut off date will be before appearing in

interview where selection is made through written examination

and interview and lastly clause (c) which is under challenge

provides a cut off date as before appearing in written examination

or interview where selection is made through only written

examination or only interview, as the case may be.

As per this rule, the petitioners were eligible to apply for the

post in question even though they may not be possessing the

essential educational qualification but had only appeared in the

final year examination. However, the eligibility would be judged on

the basis of the situation which would emerge depending upon the

nature of the selection process as provided in clause (a) to (c).

The case of the petitioners would fall in clause (c) since the

selection process comprised only of the written examination. As

per this proviso thus, even though the petitioner could have

(4 of 8) [CW-10371/2020]

applied in response to the advertisement issued by the Rajasthan

Public Service Commission, they would be treated as eligible only

if before appearing in the written examination they had acquired

the essential educational qualification.

As noted, in the present case, such examination was

conducted on 01.11.2018. The petitioners had cleared the B.Ed

course only on 02.11.2018 since that is the date on which the

result of final examination was declared. Thus according to the

respondents, petitioners were not eligible since they had not

acquired the essential educational qualification before the date of

appearing in the written examination. It is in this context the

petitioners have challenged the validity of the said Rule.

Learned counsel for the petitioners vehemently contended

that the Rule is arbitrary and irrational since it relates the cut off

date for acquiring the requisite qualification to the date of written

examination though in many cases as in the present one, result of

the written examination so conducted may be delayed for an

indefinite period. He further submitted that date of written

examination was not declared in the advertisement. Thus, the

date as on which a candidate would have to show the proof of

acquisition of essential educational qualification was left uncertain.

In support of his contentions, counsel relied on following

decisions:-

In case of Ram Kumar Gijroya Vs. Delhi Subordinate

Services Selection Board (AIR 2016 SC 1098) which was a

case in which a candidate who had appeared in examination in the

OBC category, could submit the caste certificate after the cut off

date mentioned in the advertisement and in this background, the

Supreme Court held that concept of reservation contained in the

(5 of 8) [CW-10371/2020]

Constitution should be applied in such a manner as to give benefit

to the candidate. Significantly in the said case, the candidate did

belong to a particular category. He had not produced the

certificate in support of the same before a certain date. This was

not thus a case where question of acquiring the qualification on a

certain date was at issue before the Supreme Court.

Counsel relied on the decision of Supreme Court in the case

of Naushad Anwar Vs. State of Bihar, 2014 AIR SCW 1974.

This was however a case in which the Supreme Court observed

that the question of eligibility for the qualification on the date of

application has to be liberally applied when confusion exists in the

Rules.

Counsel drew our attention to Rule 38 of the said Rules

which gives power to the Government to relax any of the

provisions of the Rules under certain circumstances. Relying on

decision of the Supreme Court in the case of Jawaharlal Nehru

University and Anr. Vs. Maj. General Y.M. Bammi and Anr.

(AIR 1994 SC 456), Counsel submitted that in the present case,

such powers should be exercised.

We have also heard the learned counsel for Rajasthan State

Public Service Commission as well as the Government of

Rajasthan.

In the present case, we are only concerned with the validity

of the Rule. Counsel for the petitioner did not argue that as per

the Rules as they stand at present, the petitioners could have

been held eligible for selection to the post in question. In that

situation, we have focused our attention on the validity of the Rule

alone. As noted, Rule 11 of the Rules provides that a candidate for

direct recruitment to the post, must possess qualifications

(6 of 8) [CW-10371/2020]

prescribed in Column 4 of the schedule. Second proviso to this

rule provides that one who has appeared or is appearing in the

final examination for the post which is an essential qualification for

the post in question, may also apply. However, he or she shall

have to submit proof of acquiring requisite qualification before the

appropriate selection agency before the dates as provided in

clause (a) to (c) depending on the situation. As noted, clause (a)

would cover the cases where the selection is made through two

stages of written examination and interview and in such a case,

the cut off date would be before appearing in the main

examination. Clause (b) covers the case where selection is made

through written examination and interview and in which case, the

cut off date would be before appearing in the interview and the

last one is clause (c), where selection is made through only on

written examination or only interview and in which case, the cut

off date would be before appearing in such examination.

In our view, this Rule provides logical and reasonable basis

for deciding the eligibility of a candidate. It is well established

through a series of judgment of Supreme Court that the cut off

date for acquisition of essential qualifications for appointment to a

Government post would be as provided in the recruitment Rules,

failing which as per the date mentioned in the recruitment

advertisement, failing which the last date for receiving the

application as provided in the advertisement. Reference in this

respect can be made to a judgment of the Supreme Court in

Bhupinderpal Singh and Ors. vs. State of Punjab and Ors. in

AIR 2000 SC 2011, in which it has been observed as under:-

"13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar and Anr.

(7 of 8) [CW-10371/2020]

MANU/SC/1130/1997 : (1997)ILLJ1160SC; A.P. Public Service Commission v. B. Sarat Chandra and Ors. MANU/SC/0447/1990: (1990)IILLJ135SC; TheDistt. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. v. M. Tripura Sundari Devi 1990 (4) SLR 237; Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors. MANU/SC/0838/1993: (1993)ILLJ617SC; Dr. M.V. Nair v. Union of India and Ors. MANU/SC/0494/1993: (1993)IILLJ347SC; and UP. Public Service Commission, U.P., Allahabad and Anr. v. Alpana MANU/SC/0672/1994:[1994]1SCR131, the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be. applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with.

However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice."

This view has been consistently followed in a series of

judgment.

It was open for the Rule making authority to provide a cut off

date for acquisition of essential qualifications. The Rule in question

does not suffer from any discrimination or arbitrariness. When any

such Rule provides a cut off date, some harsh cases are bound to

come forward where the person concerned may fall on the wrong

side of the requirement only by a couple of days. Such hardship

cannot be avoided. As long as the criteria drawn is based on

rational basis and which has nexus to the purpose sought to be

achieved, such Rule cannot be declared as unconstitutional merely

because according to the petitioners, different formula may be

(8 of 8) [CW-10371/2020]

better. In exercise of powers of subordinate legislation, the

recruiting agency has the necessary discretion to frame a Rule

which would suit the purpose of the administration. As long as the

Rule is neither discriminatory nor draws a cut off date which is

wholly arbitrary, the Court cannot declare it unconstitutional.

In the result, the petition is dismissed.

                                   (REKHA BORANA),J                                                 (AKIL KURESHI),CJ

                                   KAMLESH KUMAR/N.GANDHI/145









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