Bhawani Singh And Ors vs Raj. Public Service Comm., Ajmer And Ors

In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

The petitioners have filed the present petitions under Article 226 of the Constitution of India claiming the reservation against the quota reserved for ex-serviceman, in relation to appointment on the post of Teacher Grade-II. In sum and substance, following reliefs have been prayed:-

"1. The record of the case may kindly be called for:

The action of the respondent RPSC in withholding the result of the petitioners pertaining to competitive Examination - 2018 for the post of Senior Teacher (Grade-II) may be declared illegal and the same may be set aside;

The respondent RPSC may kindly be directed to declare the result of the petitioners pertaining to competitive Examination - 2018 for the post of Senior Teacher (Grade-II) and in case petitioners comes in merit for appointment on the post of Senior Teacher (Grade-II) the same may be extended to them with all consequential benefits."

Mr. Kuldeep Mathur, learned counsel for the petitioner has drawn attention of this Court towards the Annexure-1, which is the circular dated 16.08.2016 prevailing at the relevant time in the State of Rajasthan for the recruitment in question.

Learned counsel for the petitioners has referred to Clause-4 of the aforementioned circular dated 16.08.2016, which reads as follows :-

"यदि कोई भूतपूर्व सैनिक, देय आरक्षण का लाभ प्राप्त कर, किसी एक लोक सेवा में पुनर्नियोजिन स्वीकार करता है और उससे पूर्व उसने अन्य किसी पद की भर्ती हेतु भी आवेदन प्रस्तुत किया हुआ है, तो उसे अपने सेवा नियंत्रक अधिकारी को ऐसे किए हुए आवेदनों की दिनांकवार पूर्ण सूचना स्वघोशणा कार्यग्रहण के साथ ही प्रस्तुत कर देने की स्थ्तिि में, ऐसे कार्यग्रहण से पूर्व किए हुए आवेदनों के संबंध में भी भूतपूर्व सैनिक के रूप में आरक्षण का लाभ देय होगा। "

Learned counsel for the petitioners submits that the present petitioners were working on the post of Teacher Grade-III but while seeking such appointment, the petitioners had already given a declaration regarding their applications for seeking other recruitment with the benefits available to ex-servicemen. The applications which were submitted previously, shall remain valid for the purpose of consideration for grant of all benefits against the ex-servicemen quota, under the Rajasthan Civil Services (Absorption of Ex-servicemen) Rules, 1988.

To demonstrate the applicability of the aforesaid position, learned counsel for the petitioner has shown Annexure-2 of the petition, which reflects the declaration given at the time of appointment on the post of Teacher Grade-III including the details regarding their application forms for the post of Senior Teacher Grade-II (English) and advertisement which was issued on 09.04.2018 for the post of Senior Teacher Grade-II in various subjects and details regarding filing of the application form on 04.06.2018.

Learned counsel for the petitioner submits that the benefit provided under the aforequoted Clause-4 of the circular dated 16.08.2016 is applicable in the case of the present petitioners.

Learned counsel for the petitioners has also drawn the attention of this Court towards the order passed by this Hon'ble Court in S.B. Civil Writ Petition No.15840/2018 on 09.10.2018, which reads as follows :-

"It is submitted by learned counsel for the petitioner that vide circular dated 16.08.2016 (Annex.8), the State Government has provided that once a ex-serviceman has taken benefit of his status in getting Government employment, he shall not be entitled for the same benefit all over again. It is submitted that the said circular has been issued based on the circular issued by the Government of India, however, the said circular issued by the Government of India was considered by this Court in Sheshnath Rai v. State of Rajasthan & Ors. : SBCWP No.4720/2005, decided on 12.04.2006 (Annex.10), wherein it was held that as the circular was dehors the Rules, the same cannot have the effect of overriding the reservation made available by the Rules. In view of the submissions made, issue notice. Issue notice of stay application also. Both are made returnable within a period of four weeks.

Notices when issued be given 'dasti' to learned counsel for the petitioner.

In the meanwhile and till further orders, operation of the circular dated 16.08.2016 (Annex.8) shall remain stayed and the respondents are directed to permit the petitioner to continue to participate in the recruitment process pursuant to the advertisement dated 13.07.2016 (Annex.4). However, the appointment, if granted, shall remain subject to the final outcome of the present writ petition."

Learned counsel for the petitioner has also drawn attention of this Court towards the judgment passed by this Hon'ble Court in Sheshnath Rai Vs. State & Ors in S.B. Civil Writ Petition No.4720/2005 decided on 12.04.2006. The relevant portion of the said judgment reads as follows :-

"A look at Annexure R/1 shows that this is a communication by Soldier Welfare Department enclosing therewith the circular of the State Government dt. 7.11.1992. According to which if a candidate has once been absorbed he cannot get the benefit second time. Likewise, a communication dt. 3.6.1998 from the Director of Soldier Welfare Department has also been produced conveying that once a ex-serviceman gets employment on the basis of reservation, he is not entitled to get the benefit reservation for seeking employment over again even by leaving the first employment. A look at the provisions of the Rules of 1988 shows that under Rule 2 reservation is being provided with a non obstante clause to the extent mentioned therein, and appointment to the posts in all the Departments of the State Government as specified in the Schedule I. Schedule I Item No. 7 relates to appointment of the nature in question. Even reading the entire rules carefully it is no-where found that the reservation provided by Rule 2 is not available if the person after having been given appointment on one post, again happens to apply for direct recruitment in other department on other better post. Thus, on the face of it the communication and circulars produced by the respondents are contrary to the provisions of Rules, and cannot have the effect of overriding the reservation made available by the Rules.

Accordingly, the writ petition as against the respondent no. 4 is, however, dismissed. But then, it is allowed against respondents no. 1 to 3, and it is directed that the respondents shall consider the candidature of the petitioner on merits at par with other candidates, and by giving benefit of reservation available under the Rules, if the petitioner stands on merit he may be given appointment. This be done within a period of two months from today. The petitioner will be entitled to emoluments from the date of actual appointment. However, he will be entitled to get the seniority with notional benefit of pay fixation from the date persons junior to him were given appointment."

However, learned counsel for the petitioners candidly submits that the petitioners are not questioning the validity of the circular dated 16.08.2016 because even if the same is made applicable then also the petitioners are entitled for reservation available to Ex-servicemen, as per clause-4 of the circular.

Learned counsel for RPSC and learned counsel for State Government are not in a position to dispute the operation of Clause-4 of the circular dated 16.08.2016 for the recruitment process in question.

Learned counsel for RPSC and learned counsel for State Government are also not in a position to dispute that the application forms for the post of Senior Teacher Grade-II in the present recruitment were filled pursuant to the advertisement dated 09.04.2018, and the joining of the petitioners on the previous post of Teacher Grade-III was as per the declaration dated 08.09.2018, which is Annexure-2.

On being asked, Mr. Hemant Choudhary learned Government counsel has submitted that a clarification has been issued by the State Government regarding the post of Teacher Grade-II vide order dated 29.05.2020. The relevant portion of the said clarification reads as follows :-

" वरिश्ठ अध्यापक भर्ती परीक्षा, 2018- वरिश्ठ अध्यापक का पद सीधी भर्ती का पद है तथा इस पद पर भर्ती हेतु किसी निम्नतर पद कार्यानुभव की कोई षर्त नहीं है। अतः परिपत्र दिनांक 22.08.2019 में ऐसे पदों जिन पर भर्ती के लिए निम्नतर पद पर कार्यानुभव की कोई षर्त नहीं है, के लिए आवेदन के समय यदि कोई पूर्व सैनिक पहले से लोक सेवा में नियोजित है, तो वह केवल लोक सेवक ही माना जायेगा अर्थात उसे भूतपूर्व सैनिक के रूप में देय आरक्षण का लाभ नहीं मिलेगा। यदि कोई भूतपूर्व सैनिक ने वरिश्ठ अध्यापक भर्ती परीक्षा 2018 में आवेदन किया है और परीक्षा में सम्मिलित हुआ है तथा वह पहले से भी राजकीय सेवा में अध्यापक या अन्य किसी लोक सेवा में नियोजित है, तो उसे वरिश्ठ अध्यापक पद की भर्ती में भूतपूर्व सैनिक आरक्षण का लाभ नहीं मिलेगा तथा उसकी गिनती सामान्य उम्मीदवार के रूप में की जायेगी। यदि किसी पूर्व सैनिक द्वारा एक से अधिक पदों की भर्ती हेतु आवेदन किया गया है, तो परिपत्र दिनांक 22.08.2019 के बिन्दु संख्या 4 के अनुसार कार्यवाही की जायेगी। "

After hearing learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that there is no dispute regarding the fact that the recruitment in question for the post of Senior Teacher Grade-II is arising out of the advertisement dated 09.04.2018 and the current law applicable for extending the benefit of ex-servicemen reservation is clarified in the aforementioned circular dated 16.08.2018.

Learned counsel for the State also agrees that as per Clause-

4 of the aforesaid circular, those ex-serviceman, who have simultaneously applied for number of posts and have joined on a particular post, giving details while making a declaration regarding the previously applied post shall be entitled for the ex-servicemen reservation in respect of the previously applied post.

Learned counsel for the petitioners is also in agreement that the petitioners shall be entitled for benefit of ex-servicemen reservation only if they fall within the ambit of Clause-4 of the circular dated 16.08.2016 and to make it clear that only if they had disclosed the details of earlier applications prior to the first appointment in initial declaration.

In light of the aforesaid submissions regarding acceptability of the application of clause-4 of the aforesaid circular dated 16.08.2016, there remains no point of difference between the parties. The writ petitions thus, are allowed with a direction to the respondents to strictly adhere to the aforementioned circular dated 16.08.2016 and particularly clause-4 thereof, which is further fortified by the later clarifications issued by the State Government on 29.05.2020. However, the respondents shall be free to verify whether the petitioners had made a declaration in their previous appointment regarding the application being pending for the recruitment for Teacher Grade-II notified on 09.04.2018. Thus, the candidates, who had secured a Government Job within the ex-servicemen reservation quota and had given a declaration that before seeking appointment, they had already filled the application form for the post of Teacher Grade-II in pursuance of the advertisement dated 09.04.2018 shall be entitled for the benefits of ex-servicemen reservation. The RPSC shall accordingly immediately proceed to make all necessary appointment. All previous orders shall merge into this order. All the pending applications stand disposed of.