Bau Junawa And Ors vs State Of Rajasthan And Ors

Learned counsel for the appellants submits that this matter is squarely covered by a judgment of the Division Bench of this Court dated 27.05.2019 in

a bunch of Special Appeals (Writ), leading one being D.B. Special Appeal (Writ) No.310/2019 â€" Dharmendra Singh Gocher Vs. State of Rajasthan

and Others, and prays that same judgment be passed in this matter.

While deciding the aforesaid bunch of Special Appeals, the Division Bench passed the following judgment:-

“In all these appeals a common ground urged is that the Single Judge by various orders fell into error rejecting writ petitions only on the ground of

delay.

All the writ petitioners were candidates for selection to the post of Constable in the Rajasthan Police. After clearing the written examination, they

were asked to participate in the Physical Efficiency Test (PET) on various dates in different venues. A common complaint was that the tracks where

they were asked to run for 5 kms. were in poor condition, being subjected to rainfall and the ground was muddy. The writ petitions were dismissed on

the ground that the appellants had approached the court belatedly.

The appellants in support of their arguments draw the attention of the court towards the Division Bench’s ruling in Ravi Kumar Khateek Vs.

The State of Rajasthan : DBSAW No.1907/2018 and contend that in somewhat similar circumstances a re-test or the second PET has been ordered.

This Court is of the opinion that Ravi Kumar Khateek cannot be treated as a precedent per se because it is not based upon the principle but on a re-

appreciation of the facts, which has been considered by the Single Judge. The Single Judge in that case had considered the track conditions after

examining the Commissioner’s report in each case and concluded that in similar circumstances only what relief was permissible. However, the

Division Bench enlarged on the following reasons:-

“8. A look at the data detailed by the learned Single Judge gives a vital information which appears to have been overlooked by the learned Single

Judge. At Jaipur, on 29.08.2018 the Physical Efficiency Test was conducted in the morning and in the evening. The condition of the track as of 08:46

A.M. is the same of 04:02 P.M. and this shows the level to which the track had got affected. At Kota, Physical Efficiency Test was conducted at

09:00 A.M., 12:00 Noon and 02:00 P.M. on 07.09.2018, 08.09.2018 and 09.09.2018. The data shows that on all three dates the track was affected due

to rainfall. The date of the Physical Efficiency Test held on 10.09.2018 at 09:00 A.M. and 10:00 A.M. shows same position. Physical Efficiency Test

conducted in Kota on 11.09.2018 and 13.09.2018 also shows the same position. At Udaipur, Physical Efficiency Test conducted on 07.09.2018 and

08.09.2018 at 11:00 A.M. and 12:00 P.M. likewise shows the track to be affected due to rainfall.

Under the circumstances the nuanced distinction drawn by the learned Single Judge as noted above is too tenuous. There is enough material to

show that on all the dates the tracks were badly affected due to rainfall and merely because at a given time extent of damage to the track was more

vis-a-vis other occasions would be no ground to drawn the distinction as has not been drawn by the learned Single Judge.â€​

This Court by Single Bench in resent order in Shravan Kumar Choudhary Vs. The State of Rajasthan : DBSAW No.154/2019 decided on

22.05.2019 has held as follows:-

“7. Quite apart from the ground on which the learned Single Judge dismissed the writ petition, i.e. delay, this Court is not inclined to interfere with

the selection process or the impugned order. When a complaint such as the present one with respect to less than ideal conditions or poor conditions in

which candidates are made to perform take up PET is confronted by the Court, it needs to carefully analyse the facts since intervention in judicial

review has larger repercussions which affect non-parties.

The state has placed material on record to suggest that whatever be the circumstances, rain moisture or ideal track conditions, of the total number

of candidates who participated on the basis of prevailing conditions, 45.42 qualified. The additional affidavit (concededly which is not part of the

present appeal record as it is a part of the record in D.B. Civil Appeal No.228/19) shows that the variation between the days like the one when the

appellant was made to participate and other days when there was no rain, was not so significant as to result in arbitrariness. The chart which is

produced alongwith the said additional affidavit shows that on an average on the best days â€" when weather conditions were normal, the number of

qualified candidates were in the range of 63-64%; the lowest in such range was about 25%. In between, there were days on which the conditions

were not ideal as in many venues it appeared to have rained. Having regard to all these factors, it cannot be said that the conditions under which the

present appellant was made to participate in the PET were so poor as to deny him a level playing field. What is a matter of record is that 579

candidates did participate of whom 263 were successful and did qualify. In these circumstances, unless the result shows an extremely startling result

where it can be discerned plainly that no candidate or a very insignificant number of candidates could qualify, the Courts should be very circumspect in

returning a finding of arbitrariness.

The judgment of the Allahabad High Court, in the opinion of the Court, is not applicable. It is primarily based on the reasoning that change in

weather conditions result in the change in the rules of the game i.e. introducing rules later after the commencement of the recruitment process. The

judgment of the Allahabad High Court, with respect, in the opinion of the court, does not correctly lay down the law.

One more consideration persuades this Court to decline relief. It is that out of the 579 who participates, some were successful and some were not.

Yet all of them did participate and accepted the conditions, as it were. Permitting the petitioner/ appellant or any other candidate thereafter to take a

re-test by directing the State to hold a fresh PET would itself be an unfair procedure as it would not only allow a few candidates who approach the

Court to have a second shot or attempt, or a second innings as it were, but also create an unfair advantage inasmuch as the conditions would be

entirely different and perhaps favorable to the candidate. This would result in two yardsticks, being injected into (one whereby all others accept

participate and are assessed under poor conditions, and the second whereby those who approach the Court are given a second chance, resulting in

their competing in favorable conditions), in the same selection process, which is inherently untenable and contrary to Article 14 and cannot be

permitted. 11. For the above reasons, the appeal lacks merit and is accordingly dismissed.â€​

The above reasoning would squarely apply to the facts of these cases as well because directing a fresh re-test can result in inequity, especially to

non-parties, since they accepted the socalled poor conditions and would be now deprived of another opportunity (which the appellants would get, were

they to succeed in these appeals) because they are not before the Court.

For the foregoing reasons, it is held that the appeals lack merit; they are dismissed.â€​

In view of the above, the appeal is dismissed. The above reasoning would squarely apply to the facts of this case as well because directing a fresh re-

test can result in inequity, especially to non-parties, since they accepted the so called poor conditions and would be now deprived of another

opportunity (which the appellant would get, was he to succeed in this appeal) because they are not before the Court.

This also disposes of stay application.