Vinay Govind Trivedi vs State Of Rajasthan ...
2023 Latest Caselaw 1945 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16990/2022

Vinay Govind Trivedi S/o Shri Gopal Lal Trivedi, Aged About 41 Years, Resident Of Near Chatrawas, Tehsil Raipur, District Bhilwara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Secretariat, Jaipur (Raj.).

2. Chief Executive Officer, Zila Parishad Chittorgarh, District Chittorgarh, Rajasthan.

----Respondents Connected With S.B. Civil Writ Petition No. 17137/2022 Charan Singh S/o Suraj Karan Latala, Aged About 47 Years, R/o 7, Joshi Colony, Barkat Nagar, Tonk Phatak, Jaipur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Bikaner, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17143/2022 Vinod Kumar Paliwal S/o Shri Banshi Lal Paliwal, Aged About 42 Years, Resident Of Vpo Koshithal, Tehsil Sahada, District Bhilwara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Secretariat, Jaipur (Raj.).

2. Chief Executive Officer, Zila Parishad Pali, District Pali, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17193/2022 Charan Singh S/o Suraj Karan Latala, Aged About 47 Years, R/o 7, Joshi Colony, Barkat Nagar, Tonk Phatak, Jaipur (Raj.).

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----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Hanumangarh, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17551/2022 Vinod Kumar Malav S/o Bhura Lal Malav, Aged About 36 Years, Resident Of 21, Dhakaro Ka Mohalla, Gordhanpura, Talera, Tehsil Bundi, District Bundi (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Panchayati Raj Department, Govt. Secretariat Jaipur.

2. The Chief Executive Officer Cum Member Secretary, Zila Parishad Chittorgarh (Raj.).

----Respondents S.B. Civil Writ Petition No. 17617/2022 Om Prakash Menaria S/o Nathoo Lal Menaria, Aged About 47 Years, Village And Post Menar, Tehsil Vallabhnagar, District Udaipur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Barmer, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17818/2022 Om Prakash S/o Dana Ram, Aged About 34 Years, R/o Near Middle School, Ganchi Wada, Post And Tehsil Pindwara, District Sirohi (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary,

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Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Jalore, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 18562/2022 Mahavir Singh S/o Jaisa Ram, Aged About 49 Years, R/o Village And Post Bakara, Tehsil And District Jhunjhunu (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayat Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Jalore, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 731/2023 Tushal Kumar Gehlot S/o Lala Ram, Aged About 35 Years, R/o Old Bus Stand, Village And Post Jhadoli, Tehsil Pindwara, District Sirohi (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Govt. Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Govt. Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad, Sirohi, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Charan Singh, Mr. Tushal Kumar Gehlot and Mr. Om Prakash (petitioners present in Person.) For Respondent(s) : Mr. Sunil Beniwal, AAG assisted by Mr. Kunal Upadhyay.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

27/02/2023

1. No assistance of the lawyer on behalf of the petitioners is

available today.

2. These writ petitions under Article 226 of the Constitution of

India have been preferred, in sum and substance, with the

following prayers, and for the sake of convenience, the prayer

clauses are being taken from the case, S.B. Civil Writ Petition

No.17137/2022:-

"i) the action of the respondents while not considering the actual percentage of Sr. Secondary i.e. 28.70 marks (70% of 41.00%) for determining the total marks of the petitioner which comes )to (30+28.70 = 58.70) marks and instead awarding (30+25.34=55.34) marks for the purpose of recruitment on the post of LDC and depriving the petitioner to get appointment on the post of LDC despite the fact that the petitioner secured 57 marks in English Subject Supplementary Examination, may kindly be declared per se illegal, unjust, arbitrary, bad in the eye of law and further violative to Article 14, 16 and 21 of the Constitution of India; and / or

ii) the respondents may kindly be directed to award (28.70+30 = 58.70) marks to the petitioner instead of (25.34+30 = 55.34) marks in pursuance of the circular dated 27.03.2014 (Annexure-9) and invited the petitioner for document verification and offer appointment to the petitioner on the post of LDC in SBC (Male) category, with all consequential benefits; and/or"

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3. The controversy in these petitions is that a recruitment was

initiated by the respondent-Panchayati Raj Department for direct

recruitment on the post of Lower Division Clerk (LDC) under

Rajasthan Panchayati Raj Rules, 1996. The criteria for adjuging

the merits of the candidate were prescribed under Rule 273 of the

Rules of 1996, which was to the effect that, "a candidate would be

awarded 70% weightage of the percentage of marks obtained in

Senior Secondary Examination". The advertisement was issued by

the respondents and there was also a provision of bonus marks.

The recruitment got mired in controversy regarding bonus marks

and thus, got prolonged.

4. The bone of contention in the litigation is the calculation of

the marks of Senior Secondary, in the cases where candidates had

appeared in the supplementary examination. The petitioners are

those candidates, who are seeking counting of actual marks

obtained in supplementary examination of Senior Secondary

whereas the stand of the State is that minimum passing marks

obtained in supplementary examination of Senior Secondary ought

to be counted for the purpose of computing the marks.

5. The petitioners present in person have relied upon the

Circulars dated 13.07.2013 and 27.03.2014. They further submit

that since in the academic session of 2011-2012, the amendment

was made by the Board itself, and was accepted by all concerned;

that actual marks obtained in the supplementary shall be counted

for calculating the merit of the secondary examination.

6. The petitioners present in person referred to the judgment

rendered by a Division Bench of this Hon'ble Court in the matter of

The State of Rajasthan & Ors. Vs. Pradeep Singh (D.B. Civil

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Special Appeal (Writ) No.578/2016 decided along with

another connected matter on 14.09.2016.

The relevant portion of the judgment reads as follows:-

"5. We have considered the submissions on behalf of the parties.

6. Section 3 of the Act provides for the incorporation of the Board of Secondary Education for Rajasthan which shall have perpetual succession and a common seal. Section 4 provides for composition of the Board including nominated members and co-opted members. Section 9 provides for the powers and functions of the Board which includes conduct of public examinations and publication of the results of the examinations amongst other things. Section 36 empowers the Board to frame Regulations and Section 38 empowers the Board to make alterations to the same. The Regulations framed by the Board as existing in 1991 provided that the minimum marks obtained in the supplementary examination would be added to the other marks for purposes of declaring pass but without grant of division. The amendment of the Regulations in 2013 with regard to the examination held in 2012 provided that the minimum marks of the supplementary examination would be added to the marks obtained in the main examination and division granted accordingly.

7. The present advertisement was issued on 26.02.2013. The educational qualification prescribed for Nurse Grade II was senior secondary pass or equivalent alongwith training in general nursing course from a Government recognized institution and registration with the Rajasthan Nursing Council. The latter aspect is not relevant.

8. Madan Singh (supra) was filed alleging wholesome illegalities and irregularities in the selection

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process. Directions were given to represent. The Department of Health & Medical Services constituted an expert committee which made its recommendations leading to the guidelines dated 28.10.2015 providing that in calculating the marks to be awarded for secondary education qualification, the minimum marks obtained in the supplementary examination would be taken into consideration.

9. It is relevant to notice that in the meantime the Regulations themselves had been amended by the Board on 27.04.2013 providing that the actual marks obtained in the supplementary examination would be added to the marks in the main examination for determining the passing of the candidate both for practical and theory papers.

10. The guidelines dated 28.10.2015 do not reflect any consideration of the Act and the Regulations framed thereunder.

11. The only question for our consideration is that if the Regulations have been framed by the Board under the Act and which provides that the actual marks obtained in the supplementary examination will be added to the marks in the main examination, can the Department of Health come out with guidelines or directions contrary to the Regulations by executive instructions. The answer definitely has to be in the negative as there can be no amendment of statutory Regulations by executive instructions. Additionally, the Additional Director of the Health Department has no jurisdiction to override the provisions of the Act and the Regulations.

12. We therefore find no reason to interfere with the order under appeal.

13. Delay of 40 days in filing the appeals is condoned. Both the appeals are dismissed."

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7. The petitioners present in person also submit that exactly

the same controversy was involved in the aforequoted matters, as

the advertisement in the aforequoted case also was issued on

26.02.2013 and the bone of contention was the Board's

regulations for the purpose of computing the merit of secondary

school examination with actual supplementary marks vis-a-vis

minimum supplementary marks secured by such candidates.

8. The petitioners present in person further submit that the

Division Bench of this Hon'ble Court has categorically laid down

the law that the actual marks in the supplementary should be

counted for the candidates in question for the purpose of

calculating the merit of Secondary Board Examination.

9. The petitioners present in person have also drawn the

attention of this Court to the interim order dated 16.11.2022

passed by this Hon'ble Court in S.B. Civil Writ Petition

No.17137/2022, which reads as under:-

"It is submitted by learned counsel for the petitioner that though after adding the marks obtained by the petitioner in supplementary, the petitioner has obtained 58.70% marks, based on which, he falls in merit, by excluding the marks obtained by the petitioner in supplementary and taking the same as passing marks only, the candidature of the petitioner is sought to be rejected. A copy of the petition has been served on learned counsel appearing on caveat, who prays for time to complete his instructions in the matter. List the petition on 24.11.2022.

In the meanwhile, the respondents are directed to verify the documents produced by the petitioner and in case,

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the petitioner falls in merit, one post in the petitioner's category (unreserved) shall be kept vacant. Connect with SBCWP No.16990/2022. "

10. Mr. Sunil Beniwal, learned Additional Advocate General

assisted by Mr. Kunal Upadhyay categorically opposes the above

contention made by the petitioners on the ground that the Board

was very clear in its guidelines and regulations that the

candidates, who had taken up the supplementary examination in

Board of Secondary Education, were to be given the mark-sheets

by adding minimum marks awarded in the supplementary

examination.

11. Learned AAG has also contended that the petitioners have

been rightly ousted from the merit-list, because after adding the

minimum marks of the supplementary examination in the main

Senior Secondary Board Examination, they do not fall in the merit-

list.

12. Learned AAG has also tried to distinguish the present facts

from the judgment of Pradeep Singh (Supra) by submitting that

the aforequoted judgment was passed in peculiar circumstances of

that case wherein the guidelines were issued by the Medical and

Health Department on 28.10.2015, which is not the factual matrix

in the present case.

13. Learned AAG has also opposed the submissions made by the

petitioners on the ground that amendment of the regulations in

the year 2013, with regard to the examination earlier held, would

not apply in the present case because it cannot be given a

retrospective effect, and thus, the petitions fail.

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14. Learned AAG also submits that the petitioners appeared in

Senior Secondary Examination before 27.04.2013 and that the

last date of submission of the applications form in the present

recruitment was 18.04.2013.

15. This Court, after hearing the submissions made from both

the sides and after carefully perusing the pleadings in the petitions

as well as the reply filed by the State, finds that undisputedly

there was a condition that the minimum passing marks obtained

in supplementary examination of Senior Secondary ought to be

counted for the purpose of computing the marks, but the same

position was changed by the Board itself and that the actual marks

of the supplementary examination were being counted for the

purpose of computing the merit of the candidates, who have gone

through the supplementary examination, vide the circulars of the

Board, dated 13.07.2013 and 27.03.2014; this Court finds that

the ratio of the judgment of Pradeep Singh (Supra) rendered by

the Division Bench of this Hon'ble Court is absolutely applicable in

the present case because the regulations of 27.04.2013 are the

same regulations upon which the claim of the present petitioners

rest.

16. This Court also finds that the advertisement which was in

question, in Pradeep Singh (Supra) was of February, 2013 and

the advertisement in the present case is also of February, 2013,

thus, the chronological order also in the present case is same as

that of Pradeep Singh (Supra), and once the Division Bench of

this Hon'ble Court has held that the regulations framed by the

Board to provide actual marks obtained in the supplementary

examination to be added in the main examination are to be added

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for the question of merit then there was no reason to override the

provisions of such regulations; thus, the question does not remain

open and the controversy is squarely covered by the aforequoted

judgment rendered by the Division Bench of this Hon'ble Court.

17. Thus, in view of the above, the present writ petitions are

allowed, and the respondents are directed to consider the claim of

the petitioners on the basis of their actual marks obtained in the

supplementary examination and thereafter, the merit of the

Secondary Board Examination shall be accordingly computed; in

case the petitioners are coming in merit and are otherwise found

eligible, appropriate appointment shall be granted to them

prospectively. The interim orders passed by the Coordinate Bench

of this Hon'ble Court in most of the above numbered writ

petitions, whereby the concerned respondent authority was

directed to keep one post vacant during the pendency of the writ

petitions and thus, the question of vacancy need not be dealt with

by this Court.

All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

19-27-Jitender/sudheer

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