Malam Singh vs State Of Rajasthan
2022 Latest Caselaw 6501 Raj

(1 of 16) [CW-7656/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7656/2021

Kishan Singh S/o Shri Kalu Singh, Aged About 21 Years, R/o Village Dholiya Baru, Tehsil Bap, District Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Director General Of Police, Police Department, Jaipur, Rajasthan.

3. The Inspector General Of Police, R.a.c., Jaipur, Rajasthan.

4. The Commandant, 10Th Battalion, R.a.c. (I.r.), Ganganagar Road, Bikaner, Rajasthan.

----Respondents Connected With S.B. Civil Writ Petition No. 8998/2021 Pushpendra Singh S/o Shri Samundra Singh, Aged About 38 Years, Near F.c.i. Godown, Indira Colony, District Bikaner, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Director General Of Police, Police Department, Jaipur, Rajasthan.

3. The Inspector General Of Police, Bikaner Range, Bikaner, Rajasthan.

4. The Superintendent Of Police, District Bikaner, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 9003/2021 Praveen Singh S/o Shri Sardar Singh, Aged About 34 Years, R/o Village And Post Harsani, Tehsil Gadra Road, District Barmer, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department

(2 of 16) [CW-7656/2021]

Of Home, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Director General Of Police, Police Department, Jaipur, Rajasthan.

3. The Inspector General Of Police, Jodhpur Range, Jodhpur, Rajasthan.

4. The Superintendent Of Police, District Barmer, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 9038/2021 Saroj Kanwar D/o Shri Onkar Singh Rathore, Aged About 27 Years, R/o Ward No. 15, Pandorai Basti, Chhapar, Tehsil Sujangarh, District Churu, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Director General Of Police, Police Department, Jaipur, Rajasthan.

3. The Inspector General Of Police, Bikaner Range, Bikaner, Rajasthan.

4. The Superintendent Of Police, District Bikaner, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 14593/2021 Malam Singh S/o Shri Mahavir Singh, Aged About 22 Years, Village And Post Jodhasar, Tehsil Dungargarh, District Bikaner (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Director General Of Police, Police Department, Jaipur, Rajasthan.

3. The Commissioner Of Police, Commissionerate Jaipur, Rajasthan.

4. The Deputy Commissioner Of Police (Head Quarter), Police Commissionerate Jaipur, Rajasthan.

                                                                ----Respondents

               S.B. Civil Writ Petition No. 14675/2021


                                             (3 of 16)                  [CW-7656/2021]

Prahalad Singh S/o Shri Mangu Singh, Aged About 19 Years, Ward No. 06, Village And Post Jhanjheu, Tehsil Shri Dungargarh, District Bikaner, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Director General Of Police, Police Department, Jaipur, Rajasthan.

3. The Inspector General Of Police, R.a.c., Jaipur, Rajasthan.

4. The Commandant, 10Th Battalion, R.a.c. (I.r.), Ganganagar Road, Bikaner, Rajasthan.

                                                                   ----Respondents


For Petitioner(s)           :     Mr. Keshav Bhati.
                                  Mr. Shoubhag Singh for
                                  Mr. Shambhoo Singh Rathore.
For Respondent(s)           :     Mr. Manish Vyas, AAG.
                                  Mr. Kailash Choudhary.


              HON'BLE MR. JUSTICE ARUN BHANSALI
                                       Order
05/05/2022

These writ petitions have been filed by the petitioners

aggrieved against orders dated 2.6.2021 (in C.W.P.

No.7656/2021), 18.6.2021 (in C.W.P. No.9003/2021), 6.7.2021

(in C.W.P. No.8998/2021), 6.7.2021 (in C.W.P. No.9038/2021) and

1.10.2021 (in C.W.P. No.14675/2021), whereby, the petitioners

have been called upon to produce EWS certificate for the year

2018-19 and it has been indicated that on failure to produce the

certificate within 7 days, their appointments in Constable

Recruitment - 2019, shall be cancelled and order dated 29.9.2021

(4 of 16) [CW-7656/2021]

(in C.W.P. No.14593/2021), wherein, the selection of the petitioner

in Constable Recruitment - 2019 has been cancelled on account of

non-production of EWS certificate for the year 2018-19 and

seeking a direction to consider the EWS certificate submitted by

the petitioners for the purpose of reservation in General (EWS)

category and declare them eligible for the post of Constable

General pursuant to the advertisement dated 4.12.2019.

It is inter alia indicated in the writ petitions that petitioners

applied pursuant to the advertisement dated 4.12.2019 (Annex.2)

for the post of Constable - General in Economically Weaker

Section ('EWS') category. The petitioners passed the requisite

written test and also cleared the PST/PET conducted by the

respondents. The respondents thereafter issued a select list,

wherein, the names of the petitioners appeared and they were

called for document verification.

In the Press Note issued in this regard, it was indicated that

EWS certificate issued based on gross annual income for the year

2018-19, be produced. The petitioners appeared for document

verification and it appears that the petitioners produced EWS

certificates valid for the year 2020-21 and 2021-22, which were

issued based on gross annual income for the financial year 2019-

20 and 2020-21, respectively. The petitioners were called upon to

produce the requisite certificates by the impugned orders, calling

upon them to produce certificate based on the gross annual

income for the financial year 2018-19. The petitioners were

required to produce the certificate within a period of 7 days, failing

which, it was indicated that their selection shall be cancelled.

(5 of 16) [CW-7656/2021]

In the case of Malam Singh (in C.W.P. No.14593/2021), the

petitioner was accorded selection against the posts remaining

vacant for various reasons i.e. non-joining, not reporting for

document verification and those found ineligible and Press Note

dated 19.8.2021 was issued inter alia calling upon the candidates

to produce EWS certificate based on income of financial year

2018-19, valid for year 2019-20.

The petitioner therein also produced the certificate valid for

the year 2020-21 based on gross annual income for the financial

year 2019-20. On account of non-production of requisite

certificate, the selection of the petitioner was cancelled by the

order impugned dated 29.9.2021.

Learned counsel for the petitioners made submissions that in

the advertisement dated 4.12.2019, the respondents had only

indicated that at the time of PST/PET, the candidates would be

required to produce the original certificate and a self attested copy

of various certificates including EWS certificate, in case, the

candidates belong to EWS category in prescribed format. It was

nowhere indicated that the EWS certificate required should be for

the financial year 2018-19 and as the petitioners produced the

requisite certificate at the time of PST/PET and they were

permitted to undergo PST/PET based on the said certificates, the

respondents cannot insist for EWS certificates based on the

income of the financial year 2018-19.

Submissions have also been made that the respondents were

seeking to insist for EWS certificate for financial year 2018-19

essentially on account of the Circular / Clarification issued by the

Social Justice and Empowerment Department dated 30.6.2021

(6 of 16) [CW-7656/2021]

indicating the requirement of certificate based on the gross annual

income for financial year 2018-19, which amounts to changing the

terms of recruitment midstream, which is not permissible in law.

Further submissions were made that as the requisite

provision providing for reservation for EWS category was

introduced vide notification dated 19.2.2019 and amended on

20.10.2019, the certificate for financial year 2018-19 could not

have been issued and that those appointed under the EWS

category also could not have produced the requisite certificate for

2018-19 and as such, the petitioners have been discriminated

against. It was prayed that the action of the respondents in

insisting for EWS certificate based on income of financial year

2018-19 being wholly unjustified, certificates produced by the

petitioners be held to be appropriate and the respondents be

directed to accord appointment in the EWS category / the

cancellation of petitioner's candidature (in C.W.P. No.14593/2021)

be set aside.

When these petitions (except C.W.P. No.7656/2021) came up

before the Court, Coordinate Benches of this Court inter alia

directed by way of interim order that the petitioners' candidature /

selection in EWS category shall not be cancelled and the

petitioners were required to move an application before the

competent authority to issue EWS certificate for the year 2018-19

(valid for the financial year 2019-20) based on the parameters as

on 31.3.2019 and, in case, an application is filed, the competent

authority was directed to issue the certificate after verifying the

credentials, in accordance with law. In C.W.P. No.7656/2021, a

(7 of 16) [CW-7656/2021]

Coordinate Bench ordered that no appointment shall be made on

the one post disputed by the petitioner.

Learned counsel for the respondents made submissions that

the entire petition and plea sought to be raised by the petitioners

is baseless and that having failed to produce the requisite EWS

certificate, which is sine quo non for availing the benefit of

reservation under the said category, the petitioners are ineligible.

Submissions were made that the respondents during course

of document verification found that the petitioners were not in

possession of the requisite certificate for availing the reservation

under EWS category, granted opportunity to the petitioners to

produce the requisite certificate, however, they have failed to

produce the requisite certificate and as such are not entitled for

any relief.

Submissions have been made that the competent Social

Justice and Empowerment Department issued a specific

clarification dated 30.6.2021 (Annex.R/2) with regard to the

requirements of the requisite certificate for grant of benefit under

EWS category, which in relation to the recruitment in question

specifically required that certificate must pertain to income for

financial year 2018-19 and as such, the respondents were justified

in requiring the requisite certificate / rejecting the candidature of

the petitioners.

The petitioners by way of rejoinder have produced certain

documents, by which, the petitioners were called for document

verification to indicate that no reference was made with regard to

production of EWS certificate for the year 2018-19 and, therefore,

the respondents cannot insist based on a purported Circular /

(8 of 16) [CW-7656/2021]

Press Note issued by the Social Justice and Empowerment

Department. The petitioners have also produced advertisement for

Constable Recruitment - 2021 and have indicated that in the said

advertisement, the respondents have specifically indicated that

they would be required to produce certificate based on income for

the year 2020-21, which aspect was missing in recruitment 2019

and, therefore, the respondents cannot insist for EWS certificate

based on financial year 2018-19.

Attempt was also made to indicate that the petitioners even

during the period 2018-19 fall within the category of EWS,

however, in absence of requisite certificate they are being

deprived of benefit as EWS candidates, which also is not justified.

Learned counsel for the petitioner reiterated the submissions

as noticed hereinbefore, essentially relying on the fact that the

advertisement dated 4.12.2019 did not indicate requirement of

EWS certificate based on income for the financial year 2018-19

and, therefore, the insistence of the respondents to produce the

said certificate, amounts to changing the terms of the

advertisement midstream, which is not justified.

Attempt was also made to indicate that such a certificate

cannot be issued and that the respondents accorded appointment

to EWS candidates pursuant to the advertisement, who had not

produced the certificate based on income for financial year 2018-

19 and, therefore, the action of the respondents in this regard

deserves to be set aside.

Reliance was placed on K. Manjusree v. State of A.P. & Anr.:

(2008) 3 SCC 412 and Ram Kumar Gijroya v. Delhi Subordinate

Services Selection Board & Anr.: (2016) 4 SCC 754.

(9 of 16) [CW-7656/2021]

Learned counsel for the respondents also reiterated the

submissions based on the submissions contained in the pleadings.

It was insisted that the requirement of seeking EWS certificate

based on the gross annual income for the financial year 2018-19

is in consonance with the requirements of notification providing for

the reservation and that the submissions made by the petitioners

regarding certificate based on income of the financial year 2018-

19, cannot be issued is baseless and the further submissions

made regarding appointments being accorded by the respondents

under EWS category in absence of certificates based on income of

financial year 2018-19 are false. Learned counsel produced EWS

certificate based on the gross annual income for the financial year

2018-19 (valid for year 2019-20) of three candidates by way of

example for perusal of the Court i.e. of Ms. Gawari Kanwar, Mr.

Amar Singh and Mr. Jethu Singh Sankhala.

Further submissions were made that despite the fact that

this Court by way of interim orders required the petitioners to

move an application before the competent authority to issue EWS

certificate for the year 2018-19 and the authority was directed to

issue such a certificate, the petitioners have failed to obtain the

requisite certificate and as such they are not entitled to any relief

and, therefore, the petitions deserve dismissal.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

A perusal of the advertisement dated 4.12.2019 reveals that

under the heading 'reservations' the requisite indications made for

EWS reservation reads as under:-

                                                (10 of 16)                    [CW-7656/2021]


             "¼M½              dkfeZd         foHkkx          dh           vf/klwpuk

Øekad ,Q&7¼1½[email protected],&[email protected] fnukad 20-10-2019 ds vuqlkj lkekU; oxZ ds ,sls vH;FkhZ ftudh okf'kZd vk; 8-00 yk[k :i;s ls de gS mUgsa vkfFkZd fiNM+k oxZ ds vH;fFkZ;ksa ds vH;FkhZ ekurs gq, 10% vkj{k.k ns; gSA"

The stipulation pertaining to production of certificates inter

alia provided as under:-

"vH;fFkZ;ksa dks "kkjhfjd n{krk ijh{kk ¼ PET/PST½ ds le;

             fuEukafdr ewy izek.k i= ,oa mudh Lo&izekf.kr             (Self attested)

             ,d izfrfyfi izLrqr djus gksaxs &
             (i)     .......
             (ii)    .......

(iii) vH;FkhZ ;fn vuqlwfpr [email protected]@vU; fiNMk [email protected],echlh [email protected] fiNMk oxZ ls lEcfU/kr gS rks izFke Js.kh n.Muk;d ;k led{k vf/kdkjh }kjk fu/kkZfjr izk:i esa tkjh fd;k x;k tkfr izek.k&i=A"

A perusal of the above stipulation indicates that reference

was made to the notification of the Department of Personnel dated

20.10.2019 for the purpose of granting reservation under EWS

category and it was required that the certificate in this regard

would be produced in prescribed format.

The notification dated 20.10.2019, which inter alia provided

for reservation for EWS and by way of explanation indicated the

parameters for claiming the said benefit as EWS category, reads

as under:-

"Reservation of vacancies for Economically Weaker Sections.- Reservation of vacancies for Economically Weaker Sections shall be 10% in direct recruitment in addition to the existing reservation. The the event of non-availability of eligible and suitable candidate amongst Economically Weaker Sections in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal Procedure.

(11 of 16) [CW-7656/2021]

"Explanation: For the purpose of this rule 'Economically Weaker Sections' shall be the persons who are bonafide resident of Rajasthan and not covered under the existing scheme of reservations for the Scheduled Castes, the Scheduled Tribes, in the Backward Classes, the More Backward Classes and whose family has gross annual income below rupees 8.00 lakh. Family for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. The income shall include income from all sources i.e. salary, agriculture, business, profession etc. and it will be income for the financial year prior to the year of application."

(emphasis added)

From the perusal of the above statutory notification, which

provided for reservation for EWS and the Explanation defining

EWS, it is explicitly clear that it is only the persons whose family

has gross annual income below Rs.8 lakh from all sources and it

will be the income from the financial year prior to the year of

application, would fall in the said category.

Based on the stipulation in the notification dated 20.10.2019,

on a clarification sought by the respondents from the Social

Justice and Empowerment Department on 30.6.2021 (Annex.R/2),

a clarification in the following form was issued by the said

Department:-

"fo'k; %& dkWULVscy HkrhZ esa vkfFkZd fiNM+k oxZ dks vkj{k.k fn;s tkus ds laca/k esaA izlax %& vkidk i= Øekad u&5¼2½[email protected]@2019 [email protected] fnukad 13-05-2021 ds laca/k esaA egksn;k] mijksDr fo'k;kUrxZr izklafxd i= ds Øe esa izfrmRrj fuEukuqlkj izsf'kr gS%&

(12 of 16) [CW-7656/2021]

1- dkfeZd yksd f"kdk;r ,oa isa"ku ea=ky; ¼dkfeZd ,oa izf"k{k.k foHkkx½ ubZ fnYyh] Hkkjr ljdkj ds eseksjsUMe la[;k [email protected]@2019 ESTT(RES) fnukad 31-01-2019 ds vuqlkj xr fofRr; o'kZ dh fu/kkZfjr vk; ds vuqlkj pkyw o'kZ ds fy;s gh vkosnd dks Income & Asset Certificate tkjh fd;s tkus dk izko/kku gSA fofRr; o'kZ 2019&20 dh vk; ds vk/kkj ij tkjh Income & Assest Certificate o'kZ 2020&21 ds fy;s ekU; gksrk gSA o'kZ 2019&20 dh oS/krk ds fy;s fofRr; o'kZ 2018&19 dh vk; ds vk/kkj ij tkjh fd;k x;k Income &

Assest Certificate ekU; gksrk gSA vr% iqfyl foHkkx }kjk tkjh HkrhZ foKfIr fnukad 04- 12-2019 ¼o'kZ 2019&20½ ds fy;s fofRr; o'kZ 2018&19 dh vk; ds vk/kkj ij tkjh o'kZ 2019&20 dk Income & Asset

Certificate vuqer% gSA 2- jkT; ljdkj }kjk EWS dk Income & Asset

Certificate izek.k i= tkjh djus ds laca/k esa ifji= fnukad 12-03-2019 ds vuqlkj dsoy vkWu&ykbZu tkjh Income &

Asset Certificate gh vuqer% gSA Lo?kks'k.kk ds vk/kkj ij tkjh vkWQ&ykbZu izek.k i= vuqer% ugha gSA vr% lwpukFkZ izsf'kr gSA"

(emphasis supplied)

The said clarification also being in consonance with the

statutory requirement providing for reservation for EWS, cannot

be faulted. It also cannot be said that the clarification is sought to

be applied retrospectively, inasmuch as, what has been indicated

in the above communication is only the requirements as indicated

in the statutory notification dated 20.10.2019 (supra) governing

the reservation and as such the plea sought to be raised in this

regard, also cannot be accepted.

(13 of 16) [CW-7656/2021]

In the present case, the advertisement is dated 4.12.2019

and, therefore, the financial year prior to the year of application in

the present case would be 2018-19 only and as such the claims

made by the petitioners seeking to indicate that the advertisement

did not indicate the requirements of producing EWS certificate

based on income for financial year 2018-19 is ex facie incorrect.

Once the advertisement as quoted hereinbefore, specifically

makes a mention of notification dated 20.10.2019 and requires

candidates to be belonging to EWS category as per the said

notification and the said notification requires, the requisite income

for the financial year prior to the year of application, no fault can

be found in the insistence of the respondents for the certificate

based on financial year 2018-19.

Further, the reliance placed on the Clause pertaining to

production of certificate and the fact that the same does not

indicate that certificate based on financial year 2018-19 is

required to be produced, is of no avail to the petitioners as said

Clause, quoted hereinbefore, also requires certificate in prescribed

format and once the notification dated 20.10.2019 indicates

eligibility on income for the financial year prior to the year of

application, the 'prescribed format' would essentially mean a

certificate based on income of financial year 2018-19.

The submissions made by counsel for the petitioners that the

requirements of the respondents in insisting for certificate based

on financial year 2018-19 amounts to changing the requirements

midstream, is on its face baseless as the indication in the

advertisement is explicit i.e. eligibility based on notification dated

(14 of 16) [CW-7656/2021]

20.10.2019, which as noticed, would require in the present case, a

certificate based on gross annual income for the year 2018-19.

The reliance placed on judgments in the case of K.

Manjusree (supra) and Ram Kumar Gijroya (supra) have no

application to the present case, inasmuch as, in the case of K.

Manjusree (supra), the selection process was undertaken by not

providing for any minimum marks for interview, which provision

was made midstream, which was held to be not permissible in law,

which is not the situation in the present case, as the stipulation is

contained in the advertisement itself.

Similarly, the case of Ram Kumar Gijroya (supra), is a case

which pertains to point of time for production of the requisite

certificate, the same has nothing to do with the present case i.e.

doing away with the requisite certificate.

As noticed hereinbefore, Coordinate Benches of this Court

granted interim orders in favour of the petitioners, requiring them

to move an application before the competent authority to issue

EWS certificate for the year 2018-19 (valid for the year 2019-20)

based on the parameters as on 31.3.2019 and the competent

authority was directed to issue the certificate in accordance with

law.

While finally hearing the matters, learned counsel for the

petitioners were specifically put the query as pursuant to the

interim orders what transpired, to which, it was submitted by

counsel for the petitioners that they had approached the

authorities, however, the authorities orally denied to issue the

certificate, after which, the petitioners have not taken any steps

for enforcement of the order passed by the Court.

(15 of 16) [CW-7656/2021]

It would be seen that the interim order granted by the Court

was in mandatory form, insofar as, the competent authority was

concerned. The petitioners have failed to produce any material to

indicate that pursuant to the interim orders they moved

applications before the competent authorities and the competent

authorities refused to issue the certificate to the petitioners.

Even if the submissions in this regard is accepted, looking to

the mandatory nature of interim order passed by the Court, the

petitioners in case of such refusal, should have immediately taken

steps for enforcement of the directions issued by the Court, which

action for the reasons best known to the petitioners, has not been

taken and, therefore, having failed to take the benefit of the

interim order granted by the Court for issuance of the requisite

certificate in accordance with law, the petitioners, even otherwise,

are not entitled to any relief, in absence of the requisite certificate

based on the gross annual income for financial year 2018-19.

It may be noticed that relevant authorities for issuance of

certificates in case of the petitioners are different i.e. SDO Bikaner,

SDO Sujangarh (Churu), SDO Sridungargarh (Bikaner) and SDO

Gadraroad (Barmer). To make an omnibus allegation by all the

petitioners regarding the different competent authorities, who

were mandated by this Court by way of interim order to issue the

requisite certificate in accordance with law, that they orally denied

to issue the requisite certificate, appears to be only a ruse for

inaction on part of the petitioners despite grant of interim orders

of present nature, which clearly shows the disinclination of the

petitions in getting / producing the requisite certificates as

mandated in law.

(16 of 16) [CW-7656/2021]

A submission was made, as noticed hereinbefore, that the

certificate as sought cannot be issued and that the respondents

have accorded appointments under EWS category despite the fact

that candidates don't have the requisite certificates as desired by

the respondents, which submission also apparently is baseless in

view of the certificates produced by the respondents for perusal of

the Court, wherein, not only that the requisite certificates have

been issued by the competent authorities, appointments have

been granted only based on such requisite certificates by the

respondents and as such the making of incorrect allegations,

cannot be countenanced.

In view of above discussion, the requirement indicated by

the respondents to produce the EWS certificate based on gross

annual income for financial year 2018-19 (valid for year 2019-20)

being in consonance with the notification dated 20.10.2019,

cannot be faulted and on account of failure of the petitioners to

produce the requisite certificate during course of document

verification / even after the petitioners were called upon to

produce the same, the petitioners are not entitled to any relief /

the rejection of selection of the petitioner in CWP No.14593/2021,

cannot be faulted.

Consequently, the writ petitions filed by the petitioners have

no substance. The same are, therefore, dismissed.

(ARUN BHANSALI),J Sumit Sharma/-

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