The State Of Rajasthan vs Kamod Poswal D/O Sardar Singh ...
2023 Latest Caselaw 5032 Raj/2

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               D.B. Special Appeal Writ No. 1184/2022

1.       The State of Rajasthan, through its Secretary (Home),
         Ministry of Home Affairs, Govt. of Rajasthan, Government
         Secretariat, Rajasthan, Jaipur.
2.       The Director General of Police, Police Head Quarter, Tonk
         Road, Jaipur.
3.       The Inspector General of Police (Recruitment), Rajasthan,
         Jaipur.
4.       The Dy. Commissioner of Police (Headquarter), Police
         Commissionerate, Jaipur.
                                                                     ----Appellants
                                       Versus
Kamod Poswal D/o Sardar Singh Poswal, Aged About 20 Years,
R/o Village Sumel Khurd Post Khuntla Tehsil Baswa District
Dausa, Rajasthan.
                                                                    ----Respondent

For Appellant(s) : Mr. Rajesh Maharshi, AAG with Mr. Udit Sharma

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

18/09/2023

1. Present intra court appeal is directed against the

impugned order dated 08.03.2022 in S.B. Civil Writ Petition No.

13366/2019 wherein the learned Single Judge allowed the petition

filed by the respondent/writ-petitioner and the appellant-State

was directed to fix physical examination of the respondent/writ-

petitioner and give appointment to the respondent/writ-petitioner

if found eligible.

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2. It is crucial to note that the present appeal was filed

with a delay of 115 days. The Misc. Application No. 280/2022 filed

under Section 5 of the Limitation Act, 1963, seeking condonation

of delay, for the reasons stated therein, is allowed.

3. Learned AAG representing the appellant-State, at the

outset, has placed reliance on order dated 25.01.2023 in D.B.

SAW No. 1162/2022 titled 'State of Rajasthan & Ors. Vs.

Radhika Singh', to submit that Co-ordinate Bench of this Court,

in somewhat identical situation, had allowed the pregnant women

candidates to provisionally participate in the selection process but

their final selection was subject to the outcome of the appeal.

Learned AAG has requested for similar interim orders in the

present matter also.

4. On merits, learned AAG has challenged the impugned

order, primarily, on the following grounds:

4.1) That the right of pregnant applicant to appear in the

exam has been circumscribed by certain conditions. A pregnant

applicant is only entitled for re-conduct of PET if she submits the

application along with medical certificate within 60 days of

delivery as per the judgment of Manisha Gurjar vs. State of

Rajasthan (S.B. CWP No. 13486/2018), whereas in the

present case, the respondent/writ-petitioner submitted her

application after more than 102 days.

4.2) That the learned Single Judge had not considered the

judgments of Laxmi Devi vs. State of Rajasthan & Ors. (D.B.

CWP No. 18808/2015; decided on 15.05.2017), Raju Devi

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vs. State of Rajasthan & Ors (S.B. CWP No. 13486/2018;

decided on 28.09.2018), and Manisha Gurjar (supra).

5. Heard and considered.

6. The operative portion of the impugned order dated

08.03.2022 is reproduced as under:

"Heard counsel for the parties and perused the record.

This writ petition filed by the petitioner deserves to be allowed for the reasons; firstly, from the material which has come on record it appears that the respondents have no respect of the orders passed by this court as in the earlier round of litigation itself this court directed the respondents to pass appropriate orders on the representation submitted by the petitioner for fixing date for physical efficiency test within a period of four weeks, however, despite representation received by the respondents on 04.10.2018 they have rejected the same on the pretext that the petitioner submitted the representation after more than two months, whereas, the representation was submitted within a period of four weeks from the date of the order dated 07.09.2018 i.e. on 04.10.2018; secondly, the respondents have failed to consider that at the time of first physical examination the petitioner was pregnant; thirdly, in my considered view, it is a case of non-application of mind by the respondents in rejecting the representation/case of the petitioner.

In that view of the matter, this writ petition is allowed and the order passed by the respondents dated 26.07.2019 qua the petitioner is set aside and the respondents are directed to fix the date for physical efficiency test within a period of four weeks from receiving the certified copy of this order, with intimation of the same to the petitioner seven days before the date of physical efficiency test and give appointment to the petitioner if she is found eligible as per her category and merit."

7. On perusal of the record and after hearing the learned

AAG, the following points emerge:

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7.1) That the PET was originally scheduled on 05.09.2018,

at which point, the respondent/writ-petitioner was pregnant. To

seek extension of the PET, the respondent/writ-petitioner filed S.B.

CWP No. 19949/2018 titled as 'Kamod Poswal vs. State of

Rajasthan & Ors', which was disposed of vide order dated

07.09.2018 directing the respondent/writ-petitioner to file

appropriate application/representation before the appellant. The

appellant-State was further directed to consider the representation

within a period of four weeks. It is pertinent to note that the order

dated 07.09.2018 was never assailed by the appellant-State and

has thus attained finality.

7.2) It remains undisputed, as acknowledged by the learned

AAG, that the representation was submitted within the stipulated

time period following the order dated 07.09.2018, and was filed

on 04.10.2018. It is also apparent from the record that the said

representation was duly received by the appellant-State, but no

decision was taken thereupon within the time of four weeks as

was directed vide order dated 07.09.2018. On 25.02.2019, the

appellant-State directed the respondent/writ-petitioner to submit

fitness certificate within a period of three days, which was

submitted by the respondent/writ-petitioner on 27.02.2019.

However, the representation of the respondent/writ-petitioner was

dismissed citing the reason that representation was made beyond

the prescribed time frame, even though the same was submitted

on 04.10.2018. Therefore, the assertion of non-submission of

representation within the stipulated time frame is erroneous and

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should be deemed a mistake, particularly considering the delayed

stage at which this was raised, i.e., on 26.07.2019.

7.3) The interim order dated 25.01.2023 in D.B. SAW No.

1162/2022, relied upon by learned AAG, also has no application in

the facts and circumstances of the present case. The order

impugned in the present appeal stems from the second round of

litigation pursuant to non compliance of orders of this Court in the

first round of litigation. Once the State has accepted the order

dated 07.09.2018 in S.B. CWP No. 19949/2018, and once it is

established that the respondent/writ-petitioner had filed the

representation within the prescribed time, the appellant-State

cannot be allowed to deny the relief to the respondent/writ-

petitioner.

8. In view of the above, no interference is called for in the

order of the learned Single Judge.

9. Accordingly, the present appeal is dismissed. Pending

application(s), if any, shall stand disposed of.

(SAMEER JAIN),J (AUGUSTINE GEORGE MASIH),CJ

JKP/36

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