State Of Rajasthan vs Bharat Yadav S/O Rajkumar Yadav ...
2023 Latest Caselaw 1427 Raj/2

[2023/RJJP/001649]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               D.B. Review Petition (Writ) No. 218/2022

                                             In

                 D.B. Special Appeal Writ No. 1129/2022

1.       State       Of    Rajasthan,          Through         Principal    Secretary,
         Department Of Home, Secretariat, Jaipur.
2.       The Director General Of Police, Police Head Quarters,
         Near Nehru Place, Tonk Road, Jaipur.
                                                                        ----Petitioners
                                         Versus
1.       Bharat Yadav S/o Rajkumar Yadav, Aged About 24 Years,
         R/o     Quarter       No.      244,      RPA      Jaipur,    District   Jaipur,
         Rajasthan.
2.       Rajasthan        Public       Service       Commission,        Through      Its
         Secretary, Ajmer.
                                                                      ----Respondents

For Petitioner(s) : Mr. R.N. Mathur, Sr. Advocate, with Mr. Shovit Jhajharia - Through VC Mr. Ram Pratap Saini For Respondent(s) : Mr. Rajesh Maharshi, AAG, with Ms. Shretima Bagri

HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

03/02/2023

(1) The review petitioner has approached this court seeking

review of the order dated 9.11.2022 passed by court by which the

Special Appeal filed by the respondent State has been allowed and

an order dated 25.5.2022 passed by the learned Single Judge has

been quashed and set aside.

[2023/RJJP/001649] (2 of 6) [WRW-218/2022]

(2) The bare necessary facts giving rise to the present

review petition, are that the petitioner sustained fracture due to

fall from stairs and he was operated on 24.1.2022, hence he

wanted extension of two months for appearing in Physical

Efficiency Test (for short "PET"). When extension was not

provided to him, he submitted a petition before the Single Bench

with the prayer that the respondents be directed not to insist him

to appear in PET and 60 days extension be granted to him to

appear in the above PET.

(3) The writ petition was allowed by the learned Single

Judge vide order dated 25.5.2022 and the respondents were

directed to fix a new date for holding PET for the petitioner and if

the petitioner falls in merit, then appointment be given to him on

the post of Sub Inspector.

(4) Feeling aggrieved by the order dated 25.5.2022 the

State submitted Special Appeal before this court and the same

was disposed of in the light of order dated 30.1.2020 passed in

D.B. Special Appeal (Writ) No. 1310/2019 Dropadi Jyani v. State &

Ors and the order dated 25.5.2022 passed by the Single Bench

has been quashed.

(5) Learned Senior Counsel for the petitioner submits that

the order dated 30.1.2020 passed by the Division Bench in the

case of Dropadi Jyani(supra) is not applicable in this case because

in the case of Dropadi Jyani, she was assaulted by the accused

persons and injuries were caused to her, for which FIR was lodged

against the accused persons. While in the present case the

petitioner sustained injuries due to fall from stairs. Counsel

[2023/RJJP/001649] (3 of 6) [WRW-218/2022]

submits that the case of Dropadi Jyani pertains to recruitment on

the post of Constable, while the present case of the petitioner

pertains to the recruitment on the post of Sub Inspector. Learned

counsel submits that a sympathetic view be taken in favour of the

petitioner and order dated 9.11.2022 passed by this court be

reviewed and the relief claimed by the petitioner in the writ

petition be granted in terms of the order passed by the learned

Single Judge.

(6) Per contra, learned counsel for the respondent opposed

the arguments raised by the counsel for the petitioner and

submitted that the controversy in issue in this matter is squarely

covered by the judgment of Dropadi Jyani (supra), hence this

court has rightly allowed this Special Appeal filed by the State.

Counsel submits that the directions issued by the learned Single

Judge were contrary to the judgment in Dropadi Jyani (supra) and

the same has been rightly quashed and set aside by this court.

Counsel submits that the order dated 9.11.2022 passed by this

court is just and proper looking to the facts and circumstances of

the case, hence no interference of this court is warranted to

review or recall the same.

(7) Heard and considered the submissions.

(8) At the outset it is observed that Dropadi Jyani's case

(supra) was decided in the light of the order dated 14.11.2018

passed by the Division Bench of this court in the case of Sunil

Kumar Jani v. State & Ors D.B. Special Appeal (Writ) No.

1685/2018. The same was dismissed with the following

observations :-

[2023/RJJP/001649] (4 of 6) [WRW-218/2022]

"Successfully clearing the written examination for being appointed as a Constable GD the problem which the appellant faced was of not being able to participate at the physical efficiency test to be held on 10.09.2018. During the physical efficient test, the petitioner was required to run 5 kms. in 25 minutes. The appellant suffered an accident and had to undergo operation of the left knee on 03.08.2018 he was advised not to run for the next three months.

2.The appellant made a request to defer he being subjected to the physical efficient test, the department refused because this would have delayed drawing up of the final merit list and those who had cleared the written examination and had also cleared the physical efficient test. The appellant filed a writ petition relying upon clause 12 of the standing order, which reads as under:

"12. Medical Examination:-

Immediately after the declaration of the merit list, candidates whose names appear in the merit list shall be required to undergo a Medical Test by a Government Medical Officer. The Appointing Authority shall move the Chief Medical and Health Officer/Principal Medical Officer concerned to detail one or more medical officers, as required, for this purpose, as per enclosed proforma (Annexure E).

Candidates who are found temporarily unfit and whose defect can be rectified within 6 months as per the opinion of the Medical Officer shall be eligible for appointment after the said period provided they are found fit by medical board. Candidates who fail to conform to the prescribed standards of medical fitness even on re- examination within stipulated time shall be declared medically unfit for appointment and their candidature shall stand cancelled."

3.The learned Single Judge has correctly pointed out that the said clause pertained to the requirement of government servants to be declared medically fit after being medically examined before they are to join government service. The clause simply records that those found temporarily medically unfit and whose defects can be rectified within six months, shall be eligible for appointment after said period provided they are found to be fit by the medical board. The clause does not relate to deferment of undergoing physical examination test.

4.The appeal is dismissed."

(9) Following the order dated 14.11.2018 passed in the

case of Sunil Kumar Jani (supra), the Division Bench of this court

has dismissed the Special Appeal filed by Dropadi Jyani (supra).

[2023/RJJP/001649] (5 of 6) [WRW-218/2022]

(10) Looking to the similar facts of this case the appeal filed

by the State was allowed in the light of the above two judgments

in the case of Dropadi Jyani (supra) and Sunil Kumar Jani (supra).

(11) Once the Special Appeal filed by the State has been

allowed after hearing the arguments of both sides, now review

petition cannot be used as a tool for changing the opinion or view

of the court. The review petition can be entertained only when

there is an error apparent on the face of the record. It is not open

for this court to re-appreciate the same facts again and reach to a

different conclusion. Conclusion once arrived at after appreciating

the facts and after hearing the rival sides, cannot be assailed in

review petition unless it is shown that there is an error apparent

on the face of the record. In the present case the review

petitioner has not been able to point out any error apparent on

the face of the record, but on the contrary under the guise of the

instant review petition, the petitioner is challenging the order

passed by this court which is under review.

(12) We find no force in the alternative argument of the

counsel for the Review Petitioner that sympathetic view be taken

in favour of the petitioner. Sympathy alone cannot be a ground to

grant relief to the petitioner. It is well settled principle of law that

sympathy which is not within the precincts of law, cannot be the

basis to grant something which is otherwise impermissible. The

relief sought for cannot be granted to the review petitioner by

adopting a sympathetic view.

(13) In view of the discussion made hereinabove, we do not

find any error apparent on the face of the record to recall or

[2023/RJJP/001649] (6 of 6) [WRW-218/2022]

review the order dated 9.11.2022. No case is made out to

entertain the petition. In the light of the above, the instant

application being devoid of merit, stands dismissed.

(ANOOP KUMAR DHAND), J. (PANKAJ MITHAL), CJ.

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