Dismissed

Hari Krishan Sharma v. R P S C Ajmer

Rajasthan HC19 Apr 2018CW/8224/2018

Case brief

AI extract

What is this about?

Petitioner, over-aged by one day despite claiming two-year relaxation in a 2011 recruitment, filed a writ petition seeking quashing of rejection and appointment. The Court dismissed it, ruling that the petitioner could not argue for relaxation beyond the advertisement's limit and that the earlier final order on the same facts precluded relitigation of the issue.

What did the court decide?

The writ application was dismissed with no costs awarded to the petitioner.

Hari Krishan Sharma Vs R P S C Ajmer — Pension and Retirement Benefits | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAM BENCH AT JAIPUR

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S.B. Civil Writs No. 8224/2018

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Hari Krishan Sharma S/o Shri Gangadhar Sharma, Aged About 43 Years, R/o Phehana, Tehsil Nohar, Presently Residing At 139, Ram Nagar, Sodala, Jaipur (Raj.)

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----Petitioner

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Versus

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Rajasthan Public Service Commission Through Its Secretary, Jaipur Road, Ajmer

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----Respondent

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For Petition,e,tf(s) : Mr. Vikram Singh Nain For Res.p.0 nd en t (s)

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HON'BLE MR. JUSTICE VEEWENDR SINGH SIRADHANA Order

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For the candidature of the petitioner was declined owing to he being over-aged by one day; the petitioner instituted writ application No. 16333/2012, decided on loth March, 2016, requiring the petitioner to address a representation for grant of relaxation in upper age limit. The representation addressed, has been declined vide impugned order dated 7th September, 2016, of which, the petitioner is aggrieved off. And, has therefore, instituted the present writ application again praying for the following reliefs:

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"It is, therefore, mos-i respectfully prayed that this writ petition may kindly be allowed and accepted by quashing and setting aside the impugned letter of rejection dted 18.9.2012(Annexure-3) as well as impugned or;der dated 8.9.2016 (Annexure-5) and further it may also be. directed the respondent RPSC to give appointment to the petitioner considering him eligible for appointment as Teacher Grade-11, in accordance with his merit as per

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the letter of recommendation Annexure-2, providing the necessary age relaxation, with all consequential benefits, for the vacancies of the year 2011.

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Any other appropriate relief, which is deemed just and proper in above meni-ioned facts and circumstances, may also be granted to i-he petitioner alongwith the cost."

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Briefly, the essential skeletal material facts necessary for appreciation of the controversy are that the petitioner applied for consideration of his candidature in response to the advertisement dated 1" June, 2011, for appointment to the post of Senior Teacher (Grade-~II) (Hindi) in general category. He wrote his examination on 7th to gth December, 2011, with Roll No. 377013, and was declared successfuI having secured 390.06 marks. Though his status was indicated by respondent-RPSC, as "recommended"; howev-er, later-on selection of the petitioner was rejected for he was determined overage. Claiming relaxation under Rule 14 of the Rajasthar! Public Set-vice Commission (Ministerial and Subordinate Sa-\jPce,), Rules and Regulations, 1999 (for short, 'Rules and Regulations, 1999'), the petitioner instituted the earlier writ application.

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Learned counsel for the petitioner Mr. Vikram Singh Nain, emphatically argued that the respondent-KPSC has failed to consider the case of the petitioner for relaxation of age in view the hardship in the case at hand for the petitioner is only overage by one day. Further, the petitioner was entitled for relaxation of three years rather than two years of age for condition was incorporated with this effect of acivertisement. In order to support the claim reference has aiso been made to the opinion 6'f'the case of Vinod Kumar Chauhan Vs. State of Rajasthan & Ors.: SBCW? No. 11128/2012, decided on 27th July, 2012, and Manoj Kumar Sharma Vs. Rajasthan Public Service Commission: 1996 (1) RLR

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471, wherein the case of Prabhu Dayal Sesma Vs. State of Rajasthan & Anr.: (1986) 4 SCC 59, was also considered. Reference has also been made in the case of Pawan Kumar Bardiya & Ors. Vs. State of Rajasthan & Anr.: SBCWP No. 8046/2008, decided along with analogous matters on llth August, 2011, on the same issue.

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Learned counsel for the petitioner has emphasized nonconsideration of the hardship of the petitioner in its right perspective. Referring to notification dated 23qd September, 2008, learned co.unsel would assert that in the backdrop of amendment Z in the Rules and Regulations of 2008, vide notification supra; the case of the petitioner ought to have been considered keeping in view the fact that the -pedtioner would "ve been entitled for s ',.:. -.+ -- \ %.", direct recruitment, in the event, in any year in which no such recruitment was held, if he is not found overage by more than three years, whereas the respondents have applied the criteria of two years while considering the relaxation of the age of the petitioner.

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Heard the learned counsel for ttie petitioner and with assistance perused the relevant materials available on record as well as gave my thougf$ful consideration Ro the submissions put t forth,

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Indisputably, the petitioner participated in the recruitment process in response to advertisement dated lst June, 2011, subject to the terms and conditions stipulated therein. One of the condition in the advertisement, specifically contemplated that relaxation in upper age limit, in the recruitment process would be to the extent of two years. The petitioner participated in the recruitment process wherein no upper age relaxation of more than

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two years was contemplated as per the terms and conditions stipulated in the advertisement.

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The order dated loth March, 2016, made by this Court, in earlier round of litigation, on the writ application instituted by the petitioner, would further reflect that taking note of the factual matrix and considering the opinions, which have been reiterated again in the instant writ application, a finding was recorded by the Court earlier to the effect that the case of the,: petitioner was to be considered for grant of two years age relaxation though he was still overaVg.e *by one day. At this juncture, it will be profitable to take note of the relevant text of the order dated loth March, 2016,

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which reads thus:

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"Having heard learned counsel for the parties and perused the material on record, I have given my anxious consideration to the matter. xi

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Even though it may be a fact that date on which age of a candidate was to be computed for the purpose of his eligibility in respect of advertisement issued in the year 2008, was 01.01.2009, which would mean that for entire two years i.e. 2009 and 2010, no selection on the post of Teacher Gr.11 (Hindi) took place. It was only on 01.06.2011 that advertisement was issued, wherefor date of eligibility for a candidate in respect of age was to be as on 01.01.2012. If eligibility of petitioner is examined with reference to date of advertisement i.e. 01.06.2011 with relaxation of two years, he would possibly be within age but respondents have applied a uniform criteria by requiring that a candidate should not have attained the age 35 years as on 01.01.2012. _In any case, therefore, what is required to be seen is as to how much aqe relaxation petitioner could claim. Even if he is qranted two years aqe relaxation, he still remains barred by aqe by one day. This court in M.K. Sharma, supra, taking note of somewhat similar situation, observed that the State Government, looking to exceptional nature of case and brilliant academic career of petitioner therein, should consider gran-i-ing him relaxation in age.

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The State Government has, in exceptional cases, got such power under the provisions contained in Rule 38 of the Rajasthan Education Subordinate Service Rules, 1971, which provides that in exceptional cases, where the Administrative Department of the Government is satisfied that operation of the rules relating to age or regarding requirement of experience for recruitment causes undue hardship in any

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particular case or where the Government is of the opinion that it is necessary or expedient to relax any of the provisions of these rules with respect to age or experience of any person, it may, with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Commission by order, dispense with or relax the relevant provisions of the rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that such relaxation shall not be less favourable than the provision already contained in the Rules.

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Taking into consideration the fact that initially the petitioner was not declared ineligible and was allowed to participate in selection process and was also selected and indeed no advertisement was -issued during period between the years 2009 and 2011 and that petitioner, for reason aforesaid, became barred by age by only one day, the respondents should consider him granting relaxation in upper age limit, on his approaching them by way of a representation along-with a copy of this order, and shall pass appropriate speaking order thereon deciding the same within a period of two months from the date of its submission. It goes without saying that, if eventually relaxation in upper age limit is granted to petitioner, though his seniority would relate to the candidate immediately below him in merit, but he would not be entitled to any consequential monetary benefits for interregnum period and would get only notional benefits. Writ petition accordingly stands disposed off. This also disposes off stay application."

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A glance of the observations made vide order dated loth March, 2016, would reflect that the controversy was limited to the examination of the issue :of relaxation of upper age, in the case of the petitioner only to the extent of two years; in the face of a specific conternplation in the advertisement in that respect thereof.

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It is not the case of the petitioner that he impeached the validity of the advertisement contemplating upper age relaxation by two years only, in the backdrop of amendment of Rules and Regulations of 2008, vide notification dated 23rd September, 2008.

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Further, no such finding was recorded in the backdrop of pleadings in the order dated 10''' March, 2016. The issue raised by

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the petitioner in the backdrop of amendment of Rules and Regulations of 2008, vide notification dated 23rd September, 2008, cannot be entertained afresh in the instant writ application on the same facts on which his earlier writ application has been considered and dismissed vide order dated 10 March, 2016,. which attained finality as it was not challenged any further.

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That apart, keeping in view the principle that one should not be twice vexed for one I, .and the same cause a,nd to check the evils % J i* of splitting of claims and splitting of remedies as contemplated under Order 2 Rule 2 CPC. The litigant who omits to s.ue in respect of, or '-Si.ntentionally relinquish any portion or intentionally relinquishes any portion of claim; the litigant shall not be afterwards permitted to l'itigate in respect o$ portion so omitted or relinquished. _ . I -'- j 1- y:, t / The mere fact fittat , , :the petitio0:kr was permitted to participate in the reruitment process would not confer a right in his favour for there is no p,rinciple of law under which once a candidate is allowed to' participate in the selection process, the authority is precluded ,fr'o,m examining whetsher the candidature of the petitioner is qualified for selection or even his application was competent.

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The respondent-RPSC, in compliance of the order made by thi.s Court on loth March, 2016, considered the representation of the petitioner declining it vide impugned order dated 8th September, 2016, with a specific finding that relaxation to the extent of two years was only permissible in the upper age limit. Even after granting relaxation of two years the petitioner was found to be over-aged by one day.

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In the case of T. Jayakumar Vs. A. Gopu & Anr.: (2008) 9 SCC 403, the Apex Court of the land in no uncertain terms held that a defect in application form that renders a candidate ineligible might be over looked at the initial screening and the participating candidate may get the chance to take part in the selection but that alone does not mean that candidate cannot be held ineligible for selection at later stage once the defect surfaced. Here it will be gainful to take not of the contents of the ,para 12 to 15, in the case of T. Jayakumar ,._ (supra), which reads thus: *. r

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"12. We are not aware any principle of law under which once a candidate is allowed participution in the selection process the selection authority is precluded from examining whether his application was complete, in ordey, within time or otherwise acceptable. A defect in the application form that -?* % renders the candidate ineligible might be'overlooked in the initial screening and as a result he may be called for interview and may get a chancz to take part in selection process but that alone does not mean that the candidate cannot be held ineligible for selection at a later stage once the defect in the application comes to light.

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It is surely open to the Tribunal to examine whether the reason assigned by the selection authority for holding a candidate ineligible for selection was valid or unreasonable and arbitrary. If the reason for excluding a candidate from the selection process is found to be unreasonable or arbitrary the Tribunal may certainly intervene but if the reason itself is valid the tribunal cannot interfere simply because the candidate was allowed participation in the selection process by being called for interview. The principle of estoppel has no application in such a case.

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We are equally unable to appreciate the approach of the High Court. In the facts of the case it cannot be said that the decision of the concerned authority not to accept any of the two applications of respondent no. 1, the first being invalid for want of signature and the other being beyond time, was totally unreasonable and arbitrary. As a matter of fact the High Court has not come to any such finding. And yet the High Court observed that the second application ought to have been treated as 'part and parcel'

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of the first application and thus substituted its own view in the matter for the view taken by the respondent authority. Such an approach might have been permissible for the departmental appellate authority (provided there was one) but it was plainly beyond the scope of judicial review.

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In the facts of the case we are satisfied that the concerned authority had not exercised its discretion unreasonably and arbitrarily in rejecting both the applications submitted by respondent no.1 and any interference in the matter was hardly called for by the Tribunal or the High Court."

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Applying the p~~rimnci.pJld e s ducible from the law declared by the Apex CouFt of -the land supra and also keeping in view the fact that the advertisement dated lst June, 2011, in response to which the petitioner applied for consideration of his candidature, specifically contemplated and restricted the relaxation in the upper age limit by two years; the claim of th.e ~etitioner for further extension and to maintain this writ application on the same sets of vide order dated loth the facts in the face of -earlier adjudication March, 2016, which attained finality; cannot be sustained.

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For the reasons and discussions aforesaid, the writ application fails and is hereby dismissed,.

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No Costs.

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(VEERENDR SINGH SIRADHANA),J

Hari Krishan Sharma v. R P S C Ajmer

Case brief

What is this about?

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Hari Krishan Sharma v. R P S C Ajmer

Case brief

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