High Court Special Appeal dismissed against a Single Judge's order quashing termination of services of RPSC candidates. Court held that innocent appointees serving over 5 years retain rights despite subsequent merit list revision errors.
Special appeal dismissed; impugned order upholding continuation of service was affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Spl. Appl. Writ No. 654/2023
The Secretary, Rajasthan Public Service Commission, Ajmer, Rajasthan, Ajmer, Rajasthan.
----Appellant
Versus
| ----Respondents |
|---|
| For Appellant(s) | : Mr. Mahesh Thanvi. |
|---|---|
| For Respondent(s) | : Mr. Pankaj Sharma, AAG a/w Mr.Rishi Soni. |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
20/12/2023
“It is, therefore, most respectfully and humbly prayed that this Special Appeal Writ may kindly be allowed and the order impugned dated 28.01.2022 as passed by Learned Single Judge in SBCWP No.15410/2018 may kindly be set
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aside and the writ petition as preferred by the petitioner may kindly be dismissed.”
18. This Court observes that the RPSC issued the advertisement in question and in pursuance thereof, the respondents-candidates filled their application forms in their respective Subjects and Category. After conducting the examination, the RPSC issued the answer key. Subsequently, the RPSC issued the results on 06.02.2018, as per which, the respondents-candidates were falling within the cut off criteria/merit.
18.1. Thereafter, the respondent-RPSC verified the documents of the successful candidates, including the respondents-candidates, whereupon, the appellant-Deputy Director, Secondary Education issued the respective appointment orders in favour of the respondent-candidates. Upon challenge being laid by some of the unsuccessful candidates, as mentioned above, this Hon’ble Court directed constitution of the expert committee, which was duly constituted by the RPSC; upon submission of the report by the said Committee, the RPSC revised the cut off criteria/merit list and declared the revised results on 17.09.2018, as per which, the respondents-candidates were not falling within the cut off criteria/merit. Subsequently, the appellant vide order dated 27.09.2018 cancelled the
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appointments of the respondents-candidates, followed by termination of their services, against which the respondentcandidates filed the writ petitions before this Hon’ble Court, which were allowed vide the impugned orders in light of the judgment rendered in the case of Shyam Kumar (Supra) .
19. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in the case of Vikas Pratap Singh & Ors. (Supra) , as hereunder:-
“21. Shri Rao would submit that the case of these appellants requires sympathetic consideration by this Court, since the appointment of appellants on the basis of a properly conducted competitive examination cannot be said to have been affected by any malpractice or other extraneous consideration or misrepresentation on their part. The ouster of 26 appellants from service after having successfully undergone training and serving the respondent State for more than three years now would cause undue hardship to them and ruin their lives and careers. He would further submit that an irretrievable loss in terms of life and livelihood would be caused to eight appellants amongst them who have now become overaged and have also lost the opportunity to appear in the subsequent examinations. He would place reliance upon the decision of this Court in Rajesh Kumar v. State of Bihar [(2013) 4 SCC 690 : (2013) 2 SCC (L&S) 359 : (2013) 3 Scale 393] wherein this Court has directed the respondent State to re-evaluate the answer scripts on the basis of correct model answers key and sympathetically considered the case of such candidates who, after having being appointed in terms of erroneous evaluation and having served the State for considerable length of time, would not find place in the fresh merit list drawn after re-evaluation and directed the respondent State against ousting of such candidates and further that they be placed at the bottom of the fresh merit list.
22. The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has
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never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or mala fide. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766], S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] and Union of India v. M. Bhaskaran [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] .) It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardising the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bona fide of the candidate in such appointment and length of service of the candidate after such appointment (see Vinodan T. v. University of Calicut [(2002) 4 SCC 726 : 2002 SCC (L&S) 606] ;State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] ).
27. Admittedly, in the instant case the error committed by the respondent Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon reevaluation and deprived them of any sympathy from this Court irrespective of their length of service.
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28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.
29. Accordingly, we direct the respondent State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation”.
20. This Court also considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in case of Anmol Kumar Tiwari (Supra) , as hereunder:-
“9. Two issues arise for our consideration. The first relates to the correctness of the direction given by the High Court to reinstate the Writ Petitioners. The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singh’s case (supra),
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where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the Appellants in Vikas Pratap Singh’s case (supra) , we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present .”
21. This Court also considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in the case of Rajesh Kumar & Ors. (Supra) , as hereunder:
“20. That brings us to the submission by Mr. Rao that while re-evaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ petitioners, Respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the appellants should they be found to fall below the ‘cut-off’ mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would
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have deprived them of any sympathy from the Court or justified their ouster. Secondly, he contended that the appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re-evaluation can determine the inter se position of the writ petitioners and the appellants in these appeals, the result of such reevaluation may not lead to their ouster from service, if they fell below the cut off line. 21. There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a reevaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to
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issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list”.
22. This Court also considers it appropriate to reproduce the relevant portion of the judgment rendered by the Division Bench of this Hon’ble Court in the case of Mohan Lal Kadwasra (Supra) , as hereunder:
“6. In the present case, we find considerable substance in the argument of learned counsel appearing for the appellants that having received the complaints on 13.6.2013, prior to the issuance of appointment letters of the appellants-petitioner dated 26.6.2013, the Corporation did not act promptly in getting the complaints examined. The Committee was constituted on 21.8.2013, and on receipt of the report from such Committee, the results were revised on 19.9.2013. In between, on 6.8.2013, the Corporation had advertised 1428 vacancies on the posts of Conductor, which included 89 vacancies, on which the appointees of 2012 selections, in which the appellants had participated and were selected, had not joined. It
is submitted that apart from the benefit of the principle laid down by the Supreme Court that the services of the persons appointed through competitive examination in accordance with the Rules, should not be terminated on the ground of preparation of erroneous results, for which nothing can be attributed to them, the appellants-petitioners were deprived of the chance of applying in the subsequent recruitment to the posts, which were advertised on 6.8.2013, and on which date, they were working with the Corporation in pursuance of earlier selections.
7. We do not find any good ground to deny the appellants-petitioners the benefit of the rule of law, serving principles of equity, developed by
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the Supreme Court in which it is clearly stated that it will be highly unjust and grossly unfair to terminate the services of those persons, who are innocent appointees of an erroneous evaluation of the answer scripts. Their continuation in service should neither give any unfair advantage to them nor cause any undue prejudice to the candidates selected qua the revised merit list.
9. We do not find any substance in the contention of the counsel appearing for the Corporation that the judgment in Secretary, State of Karnataka v. Uma Devi (2006 (4) SCC 1), providing that all appointments in public services should be made serving the principles of equality under Articles 14 and 16 of the Constitution of India, would in any way deny the appellants the benefit of the principles of equity in allowing them to continue, when they were selected and appointed in the selections under the statutory Rules and were terminated on the revision of the select list.
10. In view of the pronouncement of the law by the Supreme Court, which serves the principles of equity to protect the appointments of those persons, who have no role in the revision of the results, the Special Appeals are allowed. The orders by which the services of the appellants-petitioners were terminated are set aside. The appellants however will not be reinstated in service.....”
23. This Court further observes that the RPSC is the Body constituted for conducting the examinations for appointment to the services of the State and therefore it is the obligation as well as the duty of the RPSC to maintain fairness and transparency at all levels of the recruitment process.
24. This Court also observes that the respondentcandidates were appointed by the concerned authority in the year 2018, in accordance with the merit list so prepared by the RPSC, whereupon, the respondents-candidates were
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allotted their respective place of posting, which they duly joined. This Court further observes that the respondent- candidates are working on the post in question for last more than 5 years.
25. This Court further observes that the entire procedure regarding the issuance of advertisement, conducting of examination, declaration of results and issuance of appointment orders, was done by the appellants as per the Rules in vogue; and once the same was done after duly following the prescribed procedure, then at no stage, more particularly at such a belated stage, such exercise cannot be undone, by terminating the services of the respondentscandidates, only on the sole basis of declaration of the revised cut off criteria/merit list, that too, without there being any fault on the part of the respondents-candidates. 25.1. This Court also observes that the revised cut off/merit list was issued, after submission of the report of the expert committee which may have been justified, but the same, in the factual matrix of the present case, cannot be said to be a cogent ground so as to terminate the services of the respondents-candidates, who are working on the post in question for last more than 5 years, more particularly, in light of the fact that the respondents-candidates, for seeking the appointment on the post in question, did not commit any fraud, mischief, misrepresentation or concealment of the material facts .
26. This Court further observes that once the appointments in question were accorded to the respondents-candidates after duly following the prescribed procedure and as per the Rules in vogue, the appellants were not justified in incorporating the aforementioned Condition No.10 in the respective appointment orders, and thus, on that count alone, the whole action on the part of the appellants was nothing but infringement of the constitutional rights of the respondents-candidates. Therefore, the learned Single Judge of this Hon’ble Court has rightly passed the impugned orders, more particularly, when the same are in conformity with the law laid down by the Hon’ble Apex Court.
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27. This Court also observes that in case the exercise of revision of the cut off criteria/merit due to some erroneous answers to certain question was undertaken by the appellants prior to according appointments to the respondents-candidates on the post in question, the same would have been justified, but since such an exercise has been conducted by the appellants much later after according such appointments, the same cannot be said to be justified in law, more particularly, without there being any fault on the part of the respondent-candidates, who are working on the post in question for last more than 5 years, and even if after all this, the exercise so undertaken by the appellants is accorded validity, the same would not only affect the interest of the respondents-candidates, but would also affect the financial security of their dependants. This is more so when, with the passage of time, some of the respondents-candidates have crossed the age limit to participate in the public employment exercise; in addition thereto, in case the impugned action of the appellants is upheld, the working experience of five years acquired by the respondents-candidates in the present recruitment would also not create any positive impact upon them in their future prospects.
28. This Court also observes that the learned Single Judge has rightly allowed the respondents-candidates to continue their services, while quashing the cancellation/termination of services of the respondents-candidates, more particularly, when such an action was highly unjust, grossly unfair as well as an infringement of the constitutional rights of the respondents-candidates.
29. This Court further observes that the judgments rendered in the cases of Arun Das (Supra), Secretary, State of Karnataka & Ors. Vs. Uma Devi (Supra) and Pankajeshwar Sharma (Supra), are not applicable in the present case, because the present case pertains to respondent-candidates who were appointed as per the due procedure and after securing a place in the cut off/merit list and are working for last more than 5 years on the post in question, and that, there is nothing on record, which could
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suggest any fault or any kind of fraud, mischief, misrepresentation or concealment of the material facts on the part of the respondents-candidates, for getting the appointment or employment in question.
30. Thus, in light of the aforesaid observations and in view of the afore-quoted precedent law as well as looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the appellants in the present appeals.
31. Consequently, the present appeals are dismissed.”
(RAJENDRA PRAKASH SONI),J (DR.PUSHPENDRA SINGH BHATI),J
131-SKant/-
3 issues framed by the court
Whether services of candidates appointed through due process can be terminated due to erroneous re-evaluation where there is no fault on their part.
Whether the respondents are entitled to continue in service despite revision of merit list cutting them out.
Whether to allow special appeals against orders upholding continuation of service in cases of erroneous recruitment.
Colour shows how this judgement treated each authority
Vikas Pratap Singh & Ors.Referred¶33
Vikas Pratap Singh & Ors.
Anmol Kumar TiwariReferred¶46
Anmol Kumar Tiwari
Rajesh Kumar & Ors.Referred¶52
Rajesh Kumar & Ors.
Mohan Lal KadwasraReferred¶62
Mohan Lal Kadwasra
Secretary, State of Karnataka v. Uma DeviDistinguished¶69
Secretary, State of Karnataka v. Uma Devi
Secretary, State of Karnataka & Ors. Vs. Uma DeviDistinguished¶84
Secretary, State of Karnataka & Ors. Vs. Uma Devi
Pankajeshwar SharmaDistinguished¶84
Pankajeshwar Sharma
The Secretary, Rajasthan Public Service Commission
Bhanwar Lal
State Of Rajasthan, Through The Secretary, Department Of Education
The Director, Secondary Education, Bikaner
The Deputy Director, Secondary Education, Pali Division
The District Education Officer, Secondary Education, Jalore
DR. PUSHPENDRA SINGH BHATI
RAJENDRA PRAKASH SONI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
