Radhey Shyam Godara and Others vs RPSC and Others

M.N. Bhandari, J—With consent of the parties, all the writ petitions have been heard together and decided by this common order.

This bunch of writ petitions involves common question of law. The advertisement was issued by the Rajasthan Public Service Commission (for short ''the Commission'') on 1.5.2011, for recruitment to the post of Senior Teacher Gr II in the subjects of Mathematics, Science, English, Hindi and Social Science. The petitioners applied for the posts and appeared in the selection test. The result of the examination was declared by the Commission but, thereafter, few writ petitions were filed by those, who appeared in the selection in the subjects of Mathematics and Science. The challenge to the selection was precisely on the ground that they had opted for the medium of paper to be in English but was given in Hindi thus this court allowed the writ petitions with a direction to the Commission to hold their examination by providing paper in English.

It is stated that after acceptance of initial petitions, number of other petitions were allowed. It was irrespective of the fact that the objections were required to be given in three days but were not given by those petitioners. The Commission, accordingly, preferred review petition in subsequent writ petitions and an ad interim order has been passed by the court. The Commission anticipated posts to be filled by those petitioners, who opted paper in English for the post of Sr Teacher Gr II in the subjects of Mathematics and Science, thus to keep posts for them, denied appointment to the petitioners even though few petitioners did not opt for the post of Sr Teacher Gr II Mathematics and Science but were for Hindi, English and Social Science. In fact, the Commission has withheld 5% posts in all the subjects though, so far as posts of Sr Teacher Gr II in the subjects of Hindi, English and Social Science are concerned, no dispute exist in those writ petitions. The prayer is accordingly made to direct the respondents to make appointment on the post of Sr Teacher Gr II (Hindi/English/Social Science) withheld by the Commission.

The second ground urged by learned counsel for petitioners is that on declaration of cut off marks after the result of the selection test, scrutiny of documents were made by the Commission, wherein, many candidates were found ineligible. In view of above, the Commission was required to revise the cut off marks so as to fill all the unfilled posts remain vacant by those candidates, who were found ineligible. The unfilled posts should be filled in order of merit.

It is lastly contended that the candidates having less merit than the petitioners have been given appointment while denying appointment to the petitioners. It is for the reason that in the initial result, petitioners were ranked less meritorious to other candidates but on revision of the result after change of answers of few questions, they were placed on higher merit position than the candidates, who were initially ranked higher in merit. Since appointments were given in pursuance to the first list, respondents should have terminated services of less meritorious candidates after revision of the merit list but, in view of the judgment of this court in the bunch of writ petitions led by "Pooja Sharma versus RPSC & ors", SB Civil Writ Petition No. 3541/2014, decided on 24.11.2014, candidates already appointed, were not to be discontinued. The petitioners, however, have a claim over and above those less meritorious candidates who were appointed. In view of the above, non-petitioners may be directed to give appointment to the petitioners based on merit.

Learned counsel for the Commission and the State Government have opposed the petitions. It is submitted that on account of litigation by those candidates who could not get paper in English, this court had issued direction for holding selection test by providing paper in English, the Commission decided to withheld 5% posts till the controversy in regard to those candidates comes to an end. It is further submitted that in a review petition, this court passed interim order in respect of those petitioners who did not make objections to the Commission in time but sought benefit as was given to others.

Learned counsel for the Commission admitted that while withholding 5% posts, it was irrespective of the post of Sr Teacher Gr II in different subjects, rather it has been withheld for all the subjects though the controversy in the earlier litigation was for the post of Sr Teacher Gr II in Mathematics and Science. It is, however, submitted that if a direction is given to fill left out posts in the subjects of Hindi, English and Social Science, it should be strictly in order of merit and subject to availability of posts.

So far as second issues urged by learned counsel for petitioners is concerned, persons having higher merit could not get appointment for the reason that when result was declared initially, petitioners were lower in merit as compared to those who were given appointment. After appointment, a direction was given by this court to send certain disputed questions for expert opinion. After expert opinion, result was changed and, as an outcome of which, earlier meritorious candidates could get lower merit position and lower meritorious could get higher merit position but, by the aforesaid time, appointments had been given. The candidates with lower merit appointed in service, have been given protection by this court in the bunch of writ petitions led by "Pooja Sharma versus RPSC & ors", SB Civil Writ Petition No. 3541/2014, decided on 24.11.2014. In view of above, less meritorious candidates cannot be terminated so as to accommodate higher meritorious candidates.

The third issue is in regard to ineligible candidates. It is stated that after declaring cut off marks, when scrutiny of documents was made for eligibility, few candidates have been declared ineligible. Those posts would be filled strictly in order of merit and not from the petitioners alone. With this clarification, the writ petitions may be disposed of.

I have considered rival submissions of the parties and perused the record.

The selection to the posts of Sr Teacher Gr II for different subjects invited litigation before this court earlier also. After declaration of initial result and appointments, a direction was given by this court to send certain disputed answers for expert opinion. The result thereupon was revised affecting merit of the candidates. The protection was however given to those who have already been appointed as is coming out from the judgment in the case of Pooja Sharma (supra).

Apart from the aforesaid litigation, one litigation was brought by those candidates who had opted medium of paper in English but were given in Hindi. It was for the subjects of Mathematics and Science. This court allowed writ petitions with a direction to the Commission to hold examination afresh for such candidates by providing them paper in English. After acceptance of few petitions, some more petitions were filed and allowed but, now, on a review, an interim order has been passed in favour of the Commission. The Commission, thereupon, withheld 5% posts in all the subjects so as to accommodate those candidates who will now appear in the examination afresh with paper in English.

I find no justification to withhold 5% posts of Sr Teacher Gr II of all the subjects. It is more so when no controversy in regard to the post of Sr Teacher Gr II in the subjects of Hindi, English and Social Science now exist. Learned counsel for the Commission could not indicate as to how many candidates would be permitted to appear in the examination again with medium of paper in English. Learned counsel for petitioners, however, given out that there are 4 to 5 candidates, who approached the court in time. In any case, I find no justification to withhold appointment for the posts for which controversy in regard to medium of paper does not exist. In view of aforesaid, first issue raised by learned counsel for petitioners deserves acceptance in regard to the post of Sr Teacher Gr II in the subjects of Hindi, English and Social Science.

So far as the posts in the subjects of Mathematics and Science are concerned, withholding of posts would be justified to the extent of the petitioners who had approached this court to seek a direction for giving question paper in English and for holding selection test again. In view of above, for the posts of Sr Teacher Gr II in the subjects of Mathematics and Science, posts may be withheld by the Commission to the extent of the petitioners involved in the said litigation. It may also be made subject to final outcome of the review petition/s. The first ground is concluded with the aforesaid directions, however, the posts of Sr Teacher Gr II to be filled as a consequence thereof would be strictly in order of merit.

The second issue is in regard to denial of appointment to meritorious candidates while retaining less meritorious candidates in service. It happened because of the revision of result and change of merit list as a consequence thereof. In pursuance to the first result, appointments were given, however, on the directions of this court when expert opinion for disputed answers was taken, the result was revised. It resulted in change of merit position. The candidates, who were originally more meritorious, were became less meritorious vis-a-vis the candidates finding lower merit position, could be placed on higher merit position. The fact, however, remains that those who have already been given appointment despite being less meritorious, are permitted to be continued in service. The direction aforesaid has been given in the case of Pooja Sharma (supra). The grievance of the higher meritorious candidates has also been dealt with and would apply herein also. The direction is further given to the respondents to accommodate higher meritorious candidates appropriately to the extent of the posts remained unfilled on account of withholding of 5% posts of Sr Teacher Gr II in each subject. The second issue is decided with the aforesaid direction.

The third issue raised by the learned counsel for the petitioners is in regard to those candidates, who were not found eligible after declaring cut off marks. It was on scrutiny of documents and eligibility of the candidates after declaration of the result. When the Commission and the State Government called the candidates to furnish original documents or otherwise in scrutiny, many candidates were found ineligible to hold the post, the posts to that extent should have been filled from and amongst meritorious candidates because few selected candidate were not found eligible on scrutiny or otherwise. In view of the above, if posts remain vacant on finding few candidates to be ineligible, it should be filled by the respondents from and amongst the meritorious candidates. The direction aforesaid would again be complied subject to availability of the posts and would be filed in order of merit.

With the aforesaid directions, all the writ petitions so as the stay applications are disposed of.