Guddi Gurjar Daughter Of Shri Udai ... vs State Of Rajasthan
2022 Latest Caselaw 5901 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 9208/2022

Guddi Gurjar Daughter Of Shri Udai Singh Gurjar, Wife Of Shri
Sumer Singh, Aged About 38 Years, Resident Of Village Sumel
Kalan, Tehsil Baswa, District Dausa (Raj.)
                                                                    ----Petitioner
                                    Versus
1.     State Of Rajasthan, Through Its Secretary, Department Of
       Home, Govt. Secretariat, Jaipur (Raj
2.     Director General Of Police, Police Head Quarter, Jaipur
       (Raj.)
3.     Additional Director General Of Police, Recruitment And
       Promotion Board, Jaipur.
4.     Inspector General Of Police (Recruitment), Police Head
       Quarter, Lalkothi, Jaipur (Raj.)
5.     Inspector General Of Police, Bharatpur Range Bharatpur
       (Raj.)
6.     Secretary, Rajasthan Public Service Commission, Ajmer
       (Raj.)
                                                                 ----Respondents

For Petitioner(s) : Mr. Ram Ratan Gurjar For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

26/08/2022

Counsel for the petitioner submitted that the issue involved

in this writ petition has been considered and decided by this court

in the matter of Jugal Kishor Gurjar Vs. State of Rajasthan &

Ors. (S.B. Civil Writ Petition No.5853/2022 along with

other connected matters) wherein on 16.08.2022, the following

order was passed:-

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"1. These writ petitions since involve common question, hence with consent of the parties, have been heard together and are being decided by the present common order.

2. As prayed, the facts have been taken into consideration from S.B. Civil Writ Petition No.5853/2022 and the prayer made therein 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, directs the respondents to examine the Chip No.T-42004 of petitioner and thereby give proper marks in the 100 meter race and further call for the Videography recorded during the test of Physical Test which was held 13.02.2022 at Maharana Bhupal Stadium, Chetak Circle, Udaipur and the respondents further directs to declare the separate marks of petitioner of all three events i.e. 100 meter race, Long Jump and Chinning Up of Physical Test for the post of Sub Inspector.

ii) Issue an appropriate writ order or direction in the nature thereof thereby direct the respondents to call the petitioner in the interview process and thereby give appointment to the petitioner on the post of Sub Inspector with all consequential benefits, because the petitioner has completed all three measurement/events.

iii) Issue an appropriate writ order or direction in the nature thereof thereby, the result dated 11.04.2022 may kindly be quashed and set aside and respondents be directed to issue fresh result by including the roll no. of petitioner for the post of Sub Inspector.

iv) Issue an appropriate writ order or direction in the nature thereof thereby, the respondents may kindly be declared illegal by which they have wrongly calculated the marks of the petitioner.

v) 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 petitioner.

vi) Cost of the writ petition be also awarded in favour of the petitioner."

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3. Brief facts of the case are that in pursuance to the advertisement dated 03.02.2021 the petitioners applied for the post of Sub-Inspector/Platoon Commander and after being successful in the written examination they were called for the Physical Efficiency Test (hereinafter to be referred as PET) in which all the petitioners appeared, thereafter, the respondents called the successful candidates for the interview but since name of the petitioners did not find place in the select list, hence the petitioners approached this Court by filing present writ petitions.

4. Counsels for the petitioners submitted that the respondents have wrongly not included their names in the list of successful candidates of PET. Counsels further submitted that videography of all the events of the PET has been done by the respondents and the chips were also provided and the petitioners have also completed the race within the prescribed time which is clear from the chip which shows about their running time as recorded therein. Counsels further submitted that despite having performed better than the other selected candidates, even then, name of the petitioners have not been included in the select list. Counsels further submitted that a news item was also published in the newspaper regarding wrongful selection of the candidates by the respondents. Counsels further submitted that no transparency & fairness has been maintained by the respondents in the selection process. Counsels further submitted that the respondents have failed to separately declare the marks of the petitioners towards Long Jump, 100 Meter Race and Chinups etc. Counsels further submitted that the respondents have issued the defective chips to the candidates. Counsels further submitted that in such type of selection process a committee must have been constituted to examine the grievance of the candidates but it has not been done by the respondents.

5. Counsels further submitted that the above referred circumstances demands that the videography of PET conducted by the respondents be summoned & examined by this Court for the error committed by the respondents in holding the PET and

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lastly prayed that this Court under Article 226 holds power to examine the videography of the PET conducted by the respondents or in the alternate can direct the respondents to conduct the PET for the petitioners afresh within the stipulated period which this Court may deem just and proper.

6. Counsels appearing on behalf of the respondents submitted that the respondents have conducted the selection process in a fair manner. Counsels further submitted that for conducting the PET, a Board was constituted of Higher Officers of the Department i.e. Inspector General of Police, Deputy Inspector General of Police and Superintendent of Police and the petitioners were awarded marks towards each event as per the criteria mentioned in the Standing Order No.16/2016. Counsels further submitted that although the allegation of mala-fide & arbitrariness has been levelled by the petitioners against the respondents but neither any cogent & tangible evidence has been placed on record by the petitioners in support of their allegations nor any person by name has been impleaded as party respondent in these writ petitions. Counsels further submitted that the petitioners have failed to show violation of any Rule or Circular issued by the respondents. Counsels further submitted that the respondents have rightly conducted the selection process as per the terms & conditions of the advertisement as also the relevant circular/standing order issued in this regard and there is no tenable ground which may call upon this Court to interfere and these writ petitions have been filed by the petitioners just to delay the further course of action to be taken by the respondents in finally completing the selection process and at the present moment the department is facing very hard as there is shortage of personnel in the department.

7. In support of their contention counsels relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Madras Institute of Development Studies & Anr. Vs. K. Sivasubramaniyan & Ors., reported in (2016) 1 SCC 454 wherein it has been held as under :-

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14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.

15. In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p.591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p.432, para 9) '9. ..."It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."

16. In Madan Lal & Ors. vs. State of JΚ & Ors. (1995) 3 SCC 486, similar view has

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been reiterated by the Bench which held that: (SCC p.493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla1 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

17. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p.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

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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."

18. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under: (SCC p.320, para 24) "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."

8. Counsels further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Rajneesh Khajuria Vs. Wockhardt Limited & Anr., reported in (2020) 3 SCC 86, wherein it has been held as under :-

17. In another judgment reported as Prabodh Sagar v. Punjab State Electricity Board & Ors. 7 , it was held by this Court that the mere use of the expression "mala fide" would not by itself make the petition entertainable. The Court held as under: (SCC p.640, para 13) "13. ... Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability than an asset and in the event of there being such a situation vis-à-vis an employee, the

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employer will be within his liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Board's employees also provide for voluntary (sic compulsory) retirement, a person of the nature of the petitioner, as more fully detailed hereinbefore, cannot possibly be given any redress against the order of the Board for voluntary retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word "mala fide" by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration has been noted in this judgment in extenso. ..."

19. In a judgment reported as Union of India & Ors. v. Ashok Kumar & Ors. 10, it has been held that allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. The Court held as under: (SCC p. 770, para 21) "21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh v.

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State of Punjab [(1964) 4 SCR 733 : AIR 1964 SC 72] .) It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P. Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (LŠ) 165 : AIR 1974 SC 555] courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Rly. Construction Co. Ltd. v. Ajay Kumar."

9. Counsels further relied upon the judgment passed by this court in the matter of Vishwas Sinsinwar Vs. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No.1629/2020) decided on 03.09.2020, wherein para No.28,it has been held as under:-

"28. The third argument raised by counsel for the petitioners with regard to summoning the videography is also not acceptable as the respondents have disclosed in their additional affidavit the purpose of videography i.e. (i) to ensure that the police personnel deputed at different test centres would not favour any particular candidate (ii) to avoid impersonation (iii) to keep a vigil on law and order situation if such a situation would arise.

10. Counsels further relied upon the judgment passed by the Division Bench of this court in the matter of Jitendra Rathore Vs. The State of Rajasthan & Ors. (D.B. Special Appeal Writ No.682/2020 & along with other connected matters) decided on 25.08.2021, wherein para Nos.13, 19 & 20, it has been held as under:-

"13. As observed above, the version of the appellants that they were informed at the time of PET having qualified the test has been found to be baseless. The videography of PET has not been conducted to adjudge or verify the time taken by the candidates in running activity.

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In order to maintain transparency and to have effective control over the impersonation and favoritism, the videography was conducted. On complaints received from unsuccessful candidates, a High level Committee comprising of Inspector General of Police (Headquarter) Rajasthan Jaipur (Chairman), Superintendent of Police (Recruitment & Promotion Board) Rajasthan Jaipur (Member) and Additional Superintendent of Police, Legal Cell, Police Headquarter, Jaipur (Member) was constituted to consider the grievances of the candidates. After verification by this Committee, no inconsistency was found in awarding the marks in PET. It has been categorically submitted on affidavit that the accurate time taken in activities of running cannot be ascertained from videography. In such a situation no fruitful purpose would be served by calling the videography in court. ]

19. Above contention is self contradictory to the stands taken by the appellants. On one hand, they claim to have qualified the PET, and at the same time, they are objecting the condition of the field being muddy. All the candidates including the appellants did not raise any objection at the time of PET. Thus, the objection as to condition of the field is also not tenable at all.

20. In view of the above discussion and reasons stated, we find that the Hon'ble Single Judge has rightly considered all the aspects of the matter in light of the judicial pronouncements cited by both the sides. No case is made out to interfere in the impugned order. Accordingly, the present special appeals are dismissed."

11. Counsels further relied upon the judgment passed by the Division Bench of this court in the matter of State of Rajasthan & Ors. Vs. Revant Ram Meghwal & Ors. reported in 2020(1) WLC 255, wherein para No.10, it has been held as under:-

"10. In a recent decision of this Court dealing with a similar situation, where re- test had not been permitted, but was granted in some other venue a learned Single Judge had held that the refusal to grant a re-test was discriminatory. Setting

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aside the Single Judge's order, this court held, after quoting observations in Shravan Kumar Choudhary vs. The State of Rajasthan & Ors. (D.B. Spl. Appl. Writ No. 154/2019 Decided On: 22.05.2019)- which had dealt with precisely the same issue concerning a direction to grant re-test because stadium conditions were bad, as follows:

"9. Granting a second opportunity or re- test, under the circumstances of this case, in the court's opinion, would not be a justified exercise of judicial review powers. No doubt, the petitioners had 12 hours notice; however all others (including the 23 who participated successfully and the 90 odd others who took part) also had short notice. Furthermore, to compete in a physical efficiency test, it is not the availability of a few days or even a couple of weeks, that is important. Testing endurance parameters, is one of the important objectives of the PET, which includes a 5 km run to be completed within a stipulated time. It cannot reasonably be argued that such endurance or stamina can be built overnight or in a few days; what is essential to do so, is constant and consistent practice. If one keeps these aspects in mind, it cannot be said that the writ petitioners were placed under such tremendous disadvantage as to be the reason why they could not clear the PET.

10. Another reason, which this court has to take note of is that among the 77 odd unsuccessful candidates, only a handful have come forward, claiming prejudice. Granting the facility of a re-test to these candidates who approached the court, in the opinion of the court would mean at one stroke denying similar treatment to others who have no grievance, and more importantly creating an entirely different set of circumstances, from the one under which the rest of the candidates participated, including those who successfully cleared the PET. This aspect was highlighted recently by this court in the context of recruitment to the post of police constable, where the complaint was that the weather conditions for the 5 km run were not conducive, on account of rain, resulting in the candidates' inability to complete the PET successfully. A Division Bench of this court, held in Shravan Kumar

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Choudhary vs. The State of Rajasthan & Ors. (D.B. Spl. Appl. Writ No. 154/2019 Decided On: 22.05.2019) as follows: "7. Quite apart from the ground on which the learned Single Judge dismissed the writ petition, i.e. delay, this Court is not inclined to interfere with the selection process or the impugned order. When a complaint such as the present one with respect to less than ideal conditions or poor conditions in which candidates are made to perform take up PET is confronted by the Court, it needs to carefully analyse the facts since intervention in judicial review has larger repercussions which affect non- parties.

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, 45.42 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 rained. Having regard to all these factors, it cannot be said that the conditions under which the present appellant was made 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 number of candidates could qualify, the Courts should be very circumspect in returning a finding of arbitrariness.

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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 the 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 shot 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 favorable 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 favorable conditions), in the same selection process, which is inherently untenable and contrary to Article 14 and cannot be permitted.

11. Even in the re-test (which was conducted with sufficient notice, in terms of the orders of the single judge) only a few (and not all) candidates managed to clear the PET. Upholding the grant of a second opportunity of PET carried out in most favourable circumstances, to only a few, therefore in the opinion of the court, was not justified. Granting relief also on the ground that there were vacancies which could be filled with the writ petitioners or other candidates, in the opinion of the court would mean that the executive government's choice of selecting from other candidates, who have since become eligible, is completely curtailed; the pool from which selection can be resorted to might and would be wider;

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however, the impugned order restricts it to the petitioners."

12. Heard counsels for the parties and perused the record.

13. These writ petitions filed by the petitioners deserve to be dismissed for the reasons; firstly, a Board was constituted by the respondents, comprising of Higher Officers of the Department i.e. Inspector General of Police, Deputy Inspector General of Police and Superintendent of Police to have a check and vigil over the holding & completing the PET so as to take care of even each & every iota of problem or difficulty which a candidate may face during the said process; secondly, straightaway the allegation of mala-fides & arbitrariness has been levelled by the petitioners against the respondents but neither any material in support of the said allegation has been placed on record by the petitioners nor any person by name has been impleaded as party respondent in the writ petitions and there are several verdicts of the Hon'ble Supreme Court that in absence of sufficient cogent material in support of the allegation of malafides & arbitrariness, no credence can be attached to the said allegation; thirdly in my considered view, summoning & showing the videography & chips to each & every candidate will unnecessarily delay the completion of the selection process as it will open the gates of flood & the pandora box; fourthly the issue of videography & Chip as argued by counsels for the petitioners, has already examined by this Court in detail in the matter of Vishwas Sinsinwar (supra) and the contention raised therein with regard to summoning videography and chip was turned down by this Court in that matter, as such the same issue raised herein is of no substance and lastly, in view of the judgments referred above, in my considered view no case is made out for interference by this court under Article 226 of the Constitution of India.

14. Hence, these writ petitions fail and are hereby dismissed.

15. Copy of the order be placed separately in each file."

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In that view of the matter, this writ petition is dismissed in

view of the judgment passed by this court in the matter of Jugal

Kishor Gurjar (supra).

(INDERJEET SINGH),J

CHETNA BEHRANI /148

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