Rajasthan High Court - Jodhpur
Suresh Chandra Purbia vs State Of Rajasthan (2023:Rj-Jd:43475) on 13 December, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:43475]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1896/2019
Suresh Chandra Purbia S/o Shri Chhagan Lal Purbia, Aged About
28 Years, B/c Purbia R/o Purbia Mohalla, Chawandiya Dhaneriya,
District Rajsamand (Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Home
Department, Government Of Rajasthan, Secretariat,
Jaipur.
2. The Director General Of Police, Headquarter, Jaipur,
Rajasthan.
3. The Inspector General Of Police (Recruitment), Jaipur,
Rajasthan.
4. Superintendent Of Police, Rajsamand, District Rajsamand.
----Respondents
Connected With
S.B. Civil Writ Petition No. 2106/2019
Jagdish Chandra S/o Mohan Lal, Aged About 25 Years, Resident
Of- Nichali Guar, Godaji Ka Gaon, District- Rajsamand.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Home
Department, Jaipur.
2. Director General Of Police, Jaipur.
3. Superintendent Of Police, Udaipur.
----Respondents
S.B. Civil Writ Petition No. 2132/2019
Tapesh Kumar Gadri S/o Naru Al Gadri, Aged About 21 Years,
Resident Of - Rebariyo Ki Dhani, Village- Mengtiya Kalan, Post-
Bhatoli, District- Rajsamand.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Home
Department, Jaipur.
2. Director General Of Police, Jaipur.
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3. Superintendent Of Police, Udaipur.
----Respondents
S.B. Civil Writ Petition No. 3251/2019
1. Naina Lal Regar S/o Laxman Lal Regar, Aged About 24
Years, By Caste Regar, R/o Village- Charda, Post- Swadri,
Tehsil- Deogarh, District- Rajsamand (Rajasthan).
2. Bhagirath Regar S/o Suraj Mal Regar,, Aged About 25
Years, Caste Regar, R/o Inside Solanki Gate, Deogarh,
Tehsil- Deogarh, District- Rajsamand (Rajasthan).
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Home
Deparrtment, Government Of Rajasthan, Secretariat,
Jaipur.
2. Director General Of Police, Rajasthan, Jaipur.
3. Superintendent Of Police, Udaipur (Rajasthan).
----Respondents
S.B. Civil Writ Petition No. 5633/2019
1. Vikram Singh Chouhan S/o Chatar Singh Chouhan, Aged
About 24 Years, Resident Of - Village Jetela, Post -
Uthnol, Tehsil - Nathdwara, District Rajsamand.
2. Khum Singh S/o Bheru Singh, Aged About 25 Years,
Resident Of - Village Bhunawata, Post - Mandiyan, Tehsil -
Nathdwara, District - Rajsamand.
----Petitioners
Versus
1. State Of Rajasthan, Through Its Secretary, Home
Department, Jaipur.
2. Director General Of Police, Jaipur.
3. Superintendent Of Police, Rajsamand.
----Respondents
For Petitioner(s) : None present
For Respondent(s) : Mr. Kailash Choudhary for
Mr. Manish Vyas, AAG
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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
13/12/2023
1. Even in the second round, no one has put in appearance on
behalf of the petitioners.
2. Learned counsel for the respondents submits that
controversy involved in these matters has already been decided by
Division Bench of this Hon'ble Court in State of Rajasthan & ors.
Vs. Revant Ram Meghwal & ors. (D.B. Spl. Writ No.124/2019),
decided on 31.07.2019; the operation portion of the said
judgment reads as under :-
"6. The learned Single Judge was of the opinion that the
observations of the Commissioner with respect to each
run and the report with the relevant screenshots
indicated a meticulous exercise based on available
material and an exhaustive report has been prepared.
The Single Judge held as follows:
"The Commissioner has provided six screen shots
of the run, 02 at the beginning, 02 during the
run and 02 at/around end of the run. The
mattings meant for recording the time of
candidates, appear wet, however, the end of the
run picture, is quite clear and is representative of
the status of the track. The candidate visible in
the picture is wearing white sport shoes, which in
the pictures are 'sparkling white' at the end of
the 5 km. run. The entire visible portion of the
shoes from both the cameras indicate that
apparently no mud had stuck the said white
shoes and therefore, the observations made by
the Commissioner i.e. "look at the feet of the
running candidates shows that the condition of
the track would not have been wet-muddy"
cannot be faulted.
In view thereof, the submissions sought to be
made by learned counsel for the parties qua only
one run has no substance.
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Generally it may be observed, that though the
condition of the track essentially is a question of
fact which could not have been adjudicated on
account of conflicting versions by the petitioners
and the respondents but for the availability of
the videography and the court having taken
assistance of the Commissioner, whose
observations made in this regard have been
accepted by most of the petitioners and the
respondents and contents thereof not at all in
dispute, the same has facilitated the resolution of
the issues raised by the petitioner. The efforts
made by learned Court Commissioner Mr. Sharad
Kothari, Advocate in presenting a report
complete in all respects deserves appreciation.
In view of the above discussion, based on the
report of the Commissioner, which has been
accepted by the parties, and qua one report the
feeble objections raised have been rejected by
the Court, the cases wherein the track has been
found dry & firm / reasonably firm & settle /
reasonably firm and the condition of the track
was not found as wet-muddy, the petitions filed
by the petitioners have no substance, the
petitions wherein the condition of the track has
been found as reasonably sticky /swampy,
muddy & potholed / pretty muddy slightly muddy
/ somewhat muddy, the candidates deserve one
more opportunity to undergo the PET."
7. The State in its appeal contends that whether the
track was muddy or slippery, as to permit a competitive
run for the purpose of recruitment at all, was disputed.
It was pointed out that none of the writ petitioners had
completed the mandatory run of 13 rounds. The State
argues that out of 309 candidates, 159 candidates in-
fact participated in the PET, of which 82 qualified. In
support of this argument, the State relies upon the
additional affidavit filed in a companion case (Suresh
Vishnoi V/s State of Rajasthan & Ors. D.B. Civil Special
Appeal (W) No.228/2019), which was heard but later on
withdrawn by the candidate. The said affidavit annexes
tabular statements that disclose facts and details
[2023:RJ-JD:43475] (5 of 9) [CW-1896/2019]
relating to each stadium and the PET conducted in
respect of various Commissionerate and battalion, which
was resorted to by the State Police for recruitment of
police constables.
8. The State argues that out of the 151 candidates who
participated in the PET, no less than 82 (or 54.9%)
qualified and were declared successful. Therefore, the
approach and directions of the learned Single Judge
were not justified, in ordering a fresh PET.
9. Counsel for the writ petitioners urged this court not to
upset the orders of the Single Judge, stating that the
conduct of a fresh PET provided a level playing field to
the candidates, who could not qualify in the previous
physical test, especially the 5 km run, because the
conditions at the time of the test, and the venue were in
the most unconducive conditions. This resulted in
arbitrariness. Counsel emphasized that the mere
circumstance that some candidates qualified, or that the
petitioners participated during the event, did not render
the recruitment process any less illegal or
discriminatory. Therefore, the directions impugned by
the learned Single Judge were sound, and did not call for
interference.
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 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
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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 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
[2023:RJ-JD:43475] (7 of 9) [CW-1896/2019]
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.
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.
[2023:RJ-JD:43475] (8 of 9) [CW-1896/2019]
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; however, the impugned order
restricts it to the petitioners."
11. This Court is of the opinion that the same reasoning
would apply with greater force and rigor in this case, as
well. Out of the 151 candidates who in fact participated
in the PET, nearly 55% i.e. 82 qualified. Therefore, it
could not be said that the facts showed manifest
unfairness or arbitrariness in the case of the petitioners.
[2023:RJ-JD:43475] (9 of 9) [CW-1896/2019]
After all, they like others (both successful and
unsuccessful candidates) participated; they could not
qualify. But a sizeable number of the participants
qualified. Most of those who did not qualify did not
approach the court. More number of candidates qualified
and passed the PET, than those who did not. If one
keeps all these facts in mind, the directions issued in the
impugned judgment cannot be sustained.
12. For the foregoing reasons, the present appeal has to
succeed; it is allowed. All pending applications are
disposed of. "
3. In that view of matter, the present petitions are dismissed in
the same terms as that of Revant Ram Meghwal (supra). All
pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
205 to 209-Sudheer/-
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