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Judgment
M.N. Bhandari, J.—1. All these writ petitions involve common question of law thus have been heard and are decided by this judgment.
Rajasthan Public Service Commission (in short "RPSC") issued an advertisement on 14th December, 2011 inviting applications for the post of Analyst-cum-Programmer (Deputy Director) and Programmer. All the petitioners made applications and appeared in the selection. The select list was sent to the Government. It called the candidates for verification of the documents. The petitioners have been denied appointment. It is on the ground that they are not in possession of the required experience of the post in question. As per advertisement, two years experience is required on the post of Programmer, whereas five years for the post of Analyst-cum-Programmer (Deputy Director).
Learned counsel submits that petitioners are in possession of required experience and certificates to this effect were submitted to the respondents yet they have been made ineligible. In few cases, the experience was not considered towards eligibility as it was not gained from Public or Private Limited Companies, whereas in other cases, petitioners are having teaching experience. The similarly placed candidates having teaching experience are however made eligible who had gained experience from Mohanlal Sukhadia University or Morarka Organic Foods Ltd. A candidate possessing experience from Allahabad Bank has also been held eligible, whereas petitioners have been denied benefit of experience for variety of reasons which includes that it was not obtained from a Private or Public Limited Company. It is submitted that when experience has to be given weightage, it should be irrespective of the organisation. It is moreso when many petitioners have gained experience from Vanasthali Vidyapeeth University, a deemed University. The experience gained by those candidates should have been recognized towards eligibility. The benefit of experience has been denied irrespective of the fact that number of posts are lying vacant. As per the terms of advertisement, the Government should have given relaxation to the period of experience and thereupon whoever is found eligible should have been given appointment but the State Government failed to do so.
It is also submitted that subsequent to the advertisement, a Notification was issued on 10th January, 2013 to make amendment in Rajasthan Computer State and Subordinate Service (Amendment) Rules, 2013. The amendment was brought as a corrective measure so as to make a candidate to be eligible, if he or she has gained experience from a legal entity apart from Government Organization/Government undertakings/Public/Private Limited Companies, etc. This amendment was brought so as to make a candidate eligible, if he or she has gained required experience from any Organization which falls in the definition of legal entity other than organization specifically mentioned in the rule. The amendment is corrective in nature thus should have been applied to the present recruitment as well. But despite non-availability of required number of candidates to the size of the post advertised, the respondents failed either to give relaxation or to apply the amended rules. In view of above, denial of appointment and rejection of the candidature of the petitioners should be held illegal.
Learned Senior Advocate Shri Ashok Gaur made a reference of the judgment in the case of Dr. Poonam Parakh v. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 8528/2009, decided by the Principal Seat at Jodhpur vide order dated 27th July, 2011.
Per contra, learned counsel appearing for the RPSC as well as the State Government submitted that none of the petitioners is in possession of required experience so as to become eligible for appointment.
Shri S.N. Kumawat appearing for RPSC submits that after selection, list of candidate was sent to the government for verification of the documents and if a candidate is found eligible then given appointment. In view of above, the controversy is to be dealt with by the State Government.
Shri S.K. Gupta, learned Additional Advocate General appearing for the State Government submits that after selection on the posts in question, list was sent to the government. The candidate whose certificate towards experience was found doubtful or was required to be verified further had been given opportunity to produce the proper certificate. It was sent to the expert committee to give opinion as to whether a candidate is in possession of required experience or not. As per opinion of the expert committee, the petitioners were not found in possession of the required experience thus held ineligible. The reason for rejection of their candidature has been given by sending a letter to them. In the light of opinion of the expert committee, this court may not cause interference therein.
It is further submitted that relaxation in experience by three years or by one year for appointment on the post of Analyst-cum-Programmer (Deputy Director) or Programmer respectively can be given, if number of candidates to the size of post advertised are not available. It is however at discretion of the government and the petitioners cannot claim relaxation as a matter of right moreso when they do not possess experience for relaxed period also. It is contended that petitioners are those who have gained experience from the organisation not falling in the category mentioned in the advertisement. The experience should have been gained from the Government organisation/Government undertakings/Public Limited/Private Limited companies. The petitioners have not gained experience from either of the organisations named above. In view of above, they were not eligible in absence of required experience even with relaxed period. The amendment made in the year 2013 cannot apply to the recruitment initiated in the year 2011. It is moreso when amendment has not been given retrospective effect thus reference of amendment made by learned counsel for petitioners is of no assistance. The writ petitions may accordingly be dismissed.
I have considered the rival submissions made by learned counsel for the parties and scanned the case.
An advertisement dated 14th December, 2011 was issued for the posts of Analyst-cum-Programmer (Deputy Director) and Programmer. It provides not only educational qualification but experience of certain duration from the organization named therein. The controversy in the present writ petitions is regarding required experience to become eligible for the post in question. It would be gainful to quote the relevant clause of the advertisement to show as to what experience was required along with duration of the period of experience. Accordingly relevant clauses are quoted hereunder:
"Five years'' post qualification work experience in System Designing, System Development, Programming in JAVA/Dot Net/VB/J2EE, System Management in a Government Organization/Government undertakings/Public Limited/Private Limited Companies.
Provided that in case sufficient number of candidates possessing prescribed experience are not available the condition in regard to experience may be relaxed to the extent of three years."
"Two years'' post qualification work experience in Programming in JAVA/Dot Net/VB/J2EE, in a Government Organization/Government undertakings/Public Limited/Private Limited Companies.
Provided that in case sufficient number of candidates possessing prescribed experience are not available the condition in regard to experience may be relaxed to the extent of One year."
For the post of Analyst-cum-Programmer (Deputy Director), one is required to possess five years'' post qualification work experience in System Designing, System Development, Programming in JAVA/Dot Net/VB/J2EE, System Management in a Government Organization/Government undertakings/Public Limited/Private Limited Companies. For the post of Programmer, required experience is only of two years'' in Programming JAVA/Dot Net/VB/J2EE in a Government Organization/Government undertakings/Public Limited/Private Limited Companies. According to the respondents, petitioners are not in possession of required experience so as to become eligible for the post in question. The perusal of the certificates produced by the petitioners show it to be from a organization which does not fall in the category of Government Organization/Government undertakings or Public/Private Limited companies.
The question for my consideration is as to whether those candidates can be held eligible contrary to the terms of advertisement and are otherwise in consonance to the rule then prevalent. While considering aforesaid aspect, the amendment subsequently made vide Notification dated 10th January, 2013 would also be considered. If scrutiny of certificates is to be made as per the terms of advertisement, those candidates who obtained qualification from an organization other than Government undertaking/Government organization/private or public limited companies cannot be held eligible for selection on the post in question in pursuance to the advertisement dated 14th December, 2011. The rejection of candidature of those candidates, thus cannot be held to be illegal. The fact further remains that Government made amendment in the rules vide its Notification dated 10th January, 2013. It is urged that the Notification aforesaid should be taken as a curative amendment and thus to be applied. The argument is supported by the judgment in the case of Dr. Poonam Parakh. In the said case, amendment was made in regard to disabled persons and taken to be a curative amendment.
The argument aforesaid is attractive but before its acceptance, it is required to be seen as to whether benefit claimed herein can be given to the petitioners in isolation. It is for the reason that applicants were expected to be made by the candidates who were in possession of the required qualification and experience as given in the advertisement. Nobody was knowing that after one or two years, there would be amendment so as to include certain other organizations also. The candidates similarly situated may have not applied for the post whereas it was applied by the petitioners by default but cannot be given benefit in isolation and by causing discrimination. In absence of experience from the organizations named in the advertisement, the petitioners are not eligible to get benefit, as claimed by the petitioners.
It is however a fact that there are many candidates who are in possession of required experience from the organizations named in the advertisement but duration is less than what is required in the advertisement. It is argued that looking to the availability of the candidates less than the post advertised, relaxation should have been given by the government to make them eligible. It is no doubt that clause exists for grant of relaxation in the period of experience, if sufficient number of candidates are not available so as to fill the post. It was expected from the Government to consider the case for grant of relaxation in the period of experience when sufficient number of candidates are not available to fill the post. Accordingly, those candidates who were in possession of required experience with lesser period and satisfy it with the relaxation, their case would be considered separately. If Government takes a decision to grant relaxation in terms of advertisement so as the rule. Those candidates who are in possession of the experience from the organizations named in the advertisement dated 14th December, 2011 would be considered with the relaxed period of experience. It would be expected from the government to give appointment to them, if number of posts are lying vacant by relaxing the period unless specific reasons can be given to deny relaxation under their own discretion.
An argument has been made that the Notification dated 10th January, 2013 should be taken as a curative amendment so as to make eligible to the candidates who have gained experience from legal entity. The argument aforesaid cannot be accepted not only for the reason that it cannot be considered of curative amendment but would deprive those who did not apply for the post though similarly placed like petitioners when advertisement was issued on 14th December, 2011. It is also for the reason that amendment is not retrospective. The similar issue came up for consideration before the Apex Court in the case of P. Mahendran & Ors. v. State of Karnataka & Ors., reported in , AIR 1990 SC 405. The advertisement and subsequent amendment in the rules was not held applicable to the recruitment in question as amendment was brought in the mids. In the similar manner, Apex Court in the case of K. Manjusree v. State of Andhra Pradesh & Anr., reported in , AIR 2008 SC 1470 held that rule of game cannot be changed. In view of above, I am unable to apply the judgment in the case of Dr. Poonam Parakh (supra).
The candidates coming out from Allahabad Bank, Morarka Organic Foods Ltd. and Mohanlal Sukhadia University have been held eligible towards experience thus parity has been claimed by the petitioners herein. The perusal of the certificates of those candidates who have gained experience from Allahabad Bank, Morarka Organic Foods Ltd. and Mohanlal Sukhadia University show it to be from a government organization or undertaking and lastly from a limited company, all those fall in the category given in the advertisement for the purpose of experience. The Allahabad Bank is a government organization/undertaking and Morarka Organic Foods Ltd. is a company.
At this stage, learned counsel for petitioners made a request not to make any finding or observation as they are not challenging the appointment of those candidates who had gained experience from the organizations referred above. The prayer made by learned counsel for petitioners is accepted and accordingly no finding or observation on the aforesaid argument is made.
It is also seen that rejection of candidature is for different reasons and in few cases even for want of experience as the certificate shows the teaching experience only. The scrutiny of the case has been made after going through the advertisement as well as rule in regard to requirement of experience. Even if reason for rejection of candidature is different than what it should have been, the scrutiny of the case has been made by this court in terms of the rules and would apply to all the cases.
With the aforesaid, all these writ petitions stand disposed of along with stay applications with the directions to the respondents to undertake the required exercise, as directed by the court within a period of three months from the date of receipt of copy of this order.