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Judgment
By this writ petition, a challenge is made to the amendment in the Officers Service (Recruitment, Promotion and Seniority) Regulations, 1974 (for
short “the Regulations of 1974â€) so adopted subsequently by the Rajasthan Rajya Vidhyut Prasaran Nigam Ltd. (RRVPNL). The amendment
was brought vide order dated 03rd June, 2006 (Annexure - 1).
It is submitted that for the post of the Assistant Public Relations Officer (for short “the APROâ€), higher qualification of Masters Degree was
provided, whereas, for the post of Public Relations Officer (for short “the PROâ€), lower qualification of Graduation was kept. The amendment
was made to change the qualification so as to oust the petitioner from selection and, accordingly, private respondent was appointed vide order dated
10th April, 2007. The appointment of private respondent was challenged by way of amendment in the writ petition in the year 2012 i.e. after five years
of selection. It is further stated that post of APRO was not even existing on the date of selection in the year 2007. It is in view of the order dated 03rd
June, 2006 at Annexure â€" 1 that post of APRO was converted to the post of Assistant Secretary in the same pay-scale thus selection was
otherwise made against non-existing post.
A reference of downgradation of the post of PRO to that of APRO vide order dated 24th August, 2002 has also been given. The downgradation was
made with a view to benefit the private respondent. In view of the above, impugned amendment so as the selection of private respondent may be set
aside and the relief claimed in the writ petition may be allowed.
Learned counsel for the respondents have raised preliminary objections about maintainability of the writ petition for challenge to the selection. It is
mainly on the ground that the petitioner participated in selection process without a protest to the amendment in the Rules. It was challenged after
remaining unsuccessful therein. It is also stated that no amendment in the qualification has been made, as alleged. In fact, when the Rules were
framed, same qualification was existing. The amendment was to bifurcate the post in two categories making out different quotas thus the very basis to
challenge amendment in the Rules and the allegation of malafides for making room for the private respondent is not made out.
Learned counsel for the respondents further stated that the post of APRO was available at the time of selection. In fact, one post of PRO was
downgraded vide order dated 24th August, 2002 i.e. much before selection thus conversion of one post of APRO to that of the post of Assistant
Secretary vide order dated 03rd June, 2006 would have no effect because, despite conversion, one post still remained in view of downgradation of the
post of PRO to APRO.
It is, lastly, submitted that if the plea raised by learned counsel for the petitioner about non-existing of the post of APRO is accepted then, claim of his
selection would not be made out. The petitioner, having retired, would not be entitled to any benefit other than to challenge selection and appointment
of the private respondent on the aforesaid post.
Learned counsel for the petitioner, at this stage, submits that protest to the amendment in the Rules was made prior to entering into selection. A
reference of Annexures 3 and 4 has been given for the aforesaid. It is thus submitted that the preliminary objection raised by the respondents is not
made out.
We have considered rival submissions made by learned counsel for the parties and perused the record.
A challenge is made to the amendment in the Rules alleging change of qualification for the post of APRO to benefit the private respondent. Learned
counsel for the petitioner has produced unamended and amended provisions and, if they are compared, there exist no change in the qualifications as
per the record provided by him. The only change by way of amendment to make quota in the direct recruitment. In view of the above, we do not find
that the very basis taken to challenge the amendment is made out. It is moreso when the allegations have been made for accommodation of private
respondent by way of amendment in the qualification. When no amendment in the qualification exists, the allegation of accommodation would not
arise, rather, qualification remains the same as was existing in the beginning.
It is only one part of the issue, otherwise, the issue as to whether the petitioner can challenge the validity of the Rules after appearance in the selection
without protest.
We find that selection to the post of APRO was made in the year 2007 followed by appointment of the private respondent vide order dated 10th April,
2007. The protest was made by the petitioner vide Annexures 3 and 4. The letter at Annexure â€" 3 is subsequent to the selection and so far as the
Annexure â€" 4 is concerned, the protest is not of the nature indicated herein.
A reference of earlier letters given in the year 2002 and onwards has been made but copy of it has not been enclosed so as to show challenge to the
amendment in the Rules or, in any case, protest to the amendment in the Rules before appearance in the selection. In view of the above, what remains
is the appearance of the petitioner in the selection to the post of APRO without any protest to the amendment and it has been challenged only after
remaining unsuccessful in the selection. The aforesaid is not permissible in view of the judgment of the Apex Court in the case of Ashok Kumar &
Ors. Vs. State of Bihar & Ors. reported in 2017(4) SCC 357. Therein, it is held that a candidate, appearing in the selection without protest, cannot
challenge the process subsequent to the result where he remained unsuccessful. Thus, on the aforesaid ground also, challenge to the amendment as
well as process of selection cannot be accepted.
The fact now remains about non-existence of the post. It is submitted that the post of PRO was downgraded vide order dated 28th April, 2002.
If the aforesaid order is taken note of, the post of APRO would be more than two. It is, however, a fact that by the order dated 03rd June, 2006
(Annexure â€" 1), one post of APRO was converted to the post of Assistant Secretary but it does not mean non-existing of the post of APRO in view
of the downgradation of the post of PRO. The challenge to downgradation is after a lapse of ten years and delay in doing so has not been explained.
If, at all, it is presumed that no post of APRO was available at the time of selection, the question would be as to whether the prayer of the petitioner to
appoint him on the post of APRO can be accepted. It is moreso when he has already retired from the service. It may be that selection of the private
respondent in that circumstance can be questioned. The fact, however, remains that the post of APRO was existing at the relevant time thus the last
argument of learned counsel for the petitioner cannot be accepted.
Accordingly, we do not find any reason to cause interference in the appointment of the private respondent so as to grant relief claimed in the writ
petition. Accordingly, it is dismissed.