Gajendra Kumar and Others vs State of Raj. and Others

Gopal Krishan Vyas, J.—The above writ petitions are filed by the unsuccessful candidates, who appeared in the competitive examination conducted by the Rajasthan High Court for recruitment to the post of Civil Judge Cadre (Junior Division) under the Rajasthan Judicial Service Rules, 2010 to challenge the whole selection process in which following identical prayer has been made by the petitioners:-

"It is therefore prayed that by an appropriate writ, order or direction to the following effect may kindly be given-

That vacancies in different category mentioned in the Advertisement No. RHCJ/Exam Cell/RJS/Civil Judge Cadre/2013/510 dated 25th November 2013 be redetermined as per cadre strength of Civil Judge Cadre (Junior Division) in Rajasthan in the light of the decision of R.K. Sabharwal and others Vs. State of Punjab and others, AIR 1995 SC 1371 : (1995) 70 FLR 985 : (1995) 2 JT 351 : (1995) LabIC 1618 : (1995) 1 SCALE 685 : (1995) 2 SCC 745 : (1995) 2 SCR 35 : (1995) 3 SLJ 227 and in the light of the fact submitted and argument advanced hereinbefore by the petitioner.

That the method of moderation may be incorporated in the body of relevant rules of Rajasthan Judicial Service Rules 2010 in the light of Sanjay Singh and Another Vs. U.P. Public Service Commission, Allahabad and Another, AIR 2007 SC 950 : (2007) 2 JT 534 : (2007) 2 SCALE 1 : (2007) 3 SCC 720 : (2007) 1 SCC(L&S) 870 : (2007) 2 SCR 235 : (2007) AIRSCW 707 : (2007) 1 Supreme 639 case.

The answer books of the Main examination may be examined by applying the moderation method referred to the aforesaid Supreme Court verdict in Sanjay Singh Case (supra) and in the light of the fact submitted and argument advanced hereinbefore by the petitioner.

Thereafter the result of Civil Judge Cadre (Junior Division) Main examination 2013 may be declared afresh.

The principle of removal of subjectivity and variability in assessment of answer books of Main examination should be duly made applicable in the Civil Judge Cadre (Junior Division) Recruitment 2013 by making such incorporation a part of the Rajasthan Judicial Service Rules 2010 also.

That first two requisite exercises in this behalf are the reckoning of the No. of post as per post-based reservation and the incorporation the provision of moderation in Rajasthan Judicial Service Rules, 2010. Till these two exercises are completed the appointments which were envisaged to be made in consequences of the result dated 23.11.2014 may kindly be stalled and stopped.

It is also submitted in the same context that till this grave infirmity of non application of moderation is removed completely and in the same strain the act of appointment to the post in furtherance of the result declared on 23.11.2014 should be stalled and stopped.

Any other order which this Hon''ble Court deems fit and proper in the facts and circumstances of the present case may kindly be issued in favour of the petitioner."

As per the facts of the case applications were invited by the Rajasthan High Court for recruitment on 187 posts of Civil Judge (Junior Division) vide advertisement (Annx.1) dated 25th Nov., 2013. The posts were allocated in different categories which are General, Scheduled Caste, Scheduled Tribe and Other Backward Class in following manner:

For recruitment on the post in question, the scheme of examination is provided under Rule 20 of the Rules of 2010, which reads as under:

"20. Scheme of Examination and syllabus-

(1) The competitive examination for the recruitment to the post of Civil Judge shall be conducted by the Recruiting Authority in two stages i.e. Preliminary Examination and Main Examination as per the Scheme specified in Scheduled-IV. The marks obtained in the preliminary Examination by the candidate who are declared qualified for admission to the main examination will not be counted for determining their final merit.

(2) The number of candidate to be admitted to the main examination will be fifteen times the total number of vacancies (Category wise) to the filled in the year but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Recruiting Authority for any lower range will be admitted to the Main Examination.

(3) On the basis of marks secured in Main Examination, candidates to the extent of three times of total number of vacancies (Category wise) shall be declared qualified to be called for interview.

(4) The Recruiting Authority shall not recommend a candidate who has failed to appear, in any of the written paper or before the Board for Viva Voce.

(5) Syllabus shall be such as may be prescribed by the Recruiting Authority from time to time.

Provided that same may be amended by the Governor from time to time in consultation with the Court."

Upon perusal of the above Rule it is abundantly clear that there is no provision which provides the moderation system for evaluating the answer books. The petitioners being eligible for the post of Civil Judge (JD) appeared in the preliminary examination with open eyes and declared successful, thereafter, they were granted an opportunity to appear in the main examination conducted by the High Court for the post of Civil Judge Cadre.

The petitioners were declared successful in the main examinations also and called for interview. The petitioner Gajendra Kumar appeared before the interview board on 21st Nov., 2014, whereas the petitioner Sharwan Kumar appeared before the Interview Board on 22nd Nov., 2014, but they were not selected because they were not found in merit. The final result was declared on 23rd Nov., 2014 vide Annex.9 annexed with the writ petition. The petitioner Gajendra Kumar belongs to Scheduled Caste category and Sharwan Kumar belongs to General category and both were not selected in their respective category. As per contentions of the petitioners they sought information pertaining to the procedure adopted for the examination conducted by the High Court of Rajasthan for recruitment on the post of Civil Judge Cadre under Rajasthan Right to Information (High Court and Subordinate Courts) Rules, 2006 and upon receiving the reply it is known to them that moderation system had not been applied for evaluation for their paper of main examination. As per the petitioners their answer books of main examination were examined without applying the moderation system, whereas the system of moderation is one which is adopted in the practice even by the Rajasthan Public Service Commission (RPSC) in the Civil Judge Cadre (JD) Recruitment, 2011, which is a specialized and authoritative selection body.

The learned counsel for the petitioners vehemently argued that the respondent High Court was under obligation to apply moderation system to evaluate the answer-sheets of the candidates but not applied, therefore, the whole process of selection deserves to be quashed. It is also argued that answer books of the main examination should have been examined by applying moderation method as per the judgment of the Hon''ble Supreme Court in the case of Sanjay Singh (supra) by incorporating the method of moderation in the body of the relevant rules of Rajasthan Judicial Service Rules, 2010 but it has not been incorporated, therefore, whole selection process may be declared illegal because as per the judgment of the Hon''ble Supreme Court in the case of Sanjay Singh (supra) the respondents are under obligation to incorporate the method of moderation in the body of the relevant rules of Rajasthan Judicial Service Rules, 2010 and to evaluate the answer-sheets, therefore, respondents may be directed to declare the result afresh while re-determining the cadre strength of the Civil Judge Cadre (JD) in Rajasthan in the light of the decision of R.K. Sabharwal (supra).

During the course of arguments, following queries were put to the learned counsel for the petitioners with regard to maintainability of the writ petitions:

"(i) When in the Rajasthan Judicial Service Rules, 2010, the process of moderation system to evaluate the answer book has not been provided for, then how at this stage, the direction can be issued to the respondents to amend the rules and after incorporating the moderation system in the Rules, result may be declared afresh?

(ii) Whether without impleading 187 selected candidates, these writ petitions are maintainable?

(iii) Whether the petitioners already appeared in the main examination and interview with open eyes and declared unsuccessful can challenge the selection process on the ground that moderation system should have been adopted by incorporating the moderation system in the rules?

For the aforesaid queries the learned counsel for the petitioners did not give any satisfactory reply but invited attention of this Court towards the judgments of the Hon''ble Supreme Court in the case of (i) A. Janardhana Vs. UOI and Ors, 1982 (3) SCC 601 , (ii) R.K. Sabharwal and others Vs. State of Punjab and others, AIR 1995 SC 1371 : (1995) 70 FLR 985 : (1995) 2 JT 351 : (1995) LabIC 1618 : (1995) 1 SCALE 685 : (1995) 2 SCC 745 : (1995) 2 SCR 35 : (1995) 3 SLJ 227 , (iii) Sanjay Singh and Another Vs. U.P. Public Service Commission, Allahabad and Another, AIR 2007 SC 950 : (2007) 2 JT 534 : (2007) 2 SCALE 1 : (2007) 3 SCC 720 : (2007) 1 SCC(L&S) 870 : (2007) 2 SCR 235 : (2007) AIRSCW 707 : (2007) 1 Supreme 639 , (iv) Sharwan Kumar and Others Vs. RPSC and Others, (2011) 1 RLW 507 : (2010) 6 SLR 144 , (v) Jai Singh and Ors. Vs. State of Raj. and Ors., 2011 (2) WLC 46 and (vi) Sujasha Mukherji Vs. Hon''ble High Court of Calcutta, decided on 19.2.2015 in Civil Appeal No. 2051/2015. The learned counsel for the petitioners vehemently argued that verdict of the Hon''ble Supreme Court in the case of Sanjay Singh (supra) was to be adopted for the purpose of applying moderation system but it has not been applied by the respondent High Court in the selection process in pursuance of advertisement Annex.1 dated 25.11.2013, therefore, the whole selection process may be quashed. It is further argued that the vacancies for reserved class categories like Scheduled Caste, Scheduled Tribes and Other Backward Class were not determined strictly in accordance with rules and straightway vacancies were advertised in the ratio of 16, 12 and 21 percent for the Scheduled Caste, Scheduled Tribe and Other Backward Class respectively, therefore, wrong determination of vacancies is completely in violation of law laid down by the Hon''ble Supreme Court, therefore, whole process of selection may be quashed.

After hearing the learned counsel for the petitioners, it emerges from the facts that petitioners are seeking mandamus to the respondents for incorporating the moderation system in Rule 20 of the Rajasthan Judicial Service Rules, 2010 in spite of fact that it was well within their knowledge that in the rules there is no provisions for moderation system. The petitioners appeared in the examination without raising any objection and participated in the selection process but after declaring unsuccessful they are challenging validity of the Rule 20 after completion of process of selection and specifically made a prayer that method of moderation may be incorporated in the body of relevant rules and, thereafter, answer books of the main examination may be re-examined by applying the moderation method and thereafter result may be declared afresh. In our opinion, the petitioners cannot be permitted to raise such a plea after participating in the process of selection in which they were declared unsuccessful.

In the case of Marripati Nagaraja and Others Vs. The Government of Andhra Pradesh and Others, (2007) 12 JT 407 : (2007) 11 SCC 522 : (2008) 1 SCC(L&S) 68 : (2007) 11 SCR 506 : (2008) 2 SLJ 1 has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the date before the appropriate authority. They are, therefore, stopped and precluded from questioning the selection process.

In the case of Dhananjay Malik and Others Vs. State of Uttaranchal and Others, AIR 2008 SC 1913 : (2008) 1 CLT 753 : (2008) 3 JT 611 : (2008) 3 SCALE 425 : (2008) 4 SCC 171 : (2008) 1 SCC(L&S) 1005 : (2008) AIRSCW 2158 : (2008) 2 Supreme 328 in which following verdict is given in para No. 7 and 9 of the judgment, which reads as under:-

"7. It is not disputed that the respondents-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.

In Madan Lal v. State of J and K, this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.

In the present case, as already pointed out, the respondents-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."

Upon perusal of above judgments it is obvious that the Hon''ble Apex Court laid down the law that even if the recruitment was not made according to the statutory rules and prescribed qualifications were not adhered to and criteria laid down in the rules was void or in principle nullity then also, the candidates who unsuccessfully participated in the process of selection are estopped from challenging the selection criteria even if they had any valid objections.

In the present case also, the petitioners participated in the selection process without any demur and declared unsuccessful, therefore, now at this stage, when process of selection is complete the prayer for incorporating the moderation system in the rules cannot be accepted.

In the case of Prashant Ramesh Chakkarwar Vs. Union Public Service Commission and Others, (2013) 3 SCALE 1 : (2013) 12 SCC 489 the Hon''ble Supreme Court held that to quash the entire selection, the selected candidates are required to be impleaded as party and without impleading them as a party, the process cannot be quashed. The paras No. 13 of the said judgment is relevant, which reads as under:-

"13. We have considered the respective arguments and scanned the voluminous papers produced by the petitioners. In our view, the High Court did not commit any error by non-suiting the petitioners on the ground of non-impleadment of the selected candidates as parties to the original applications and the writ petitions. If the methodology of moderation adopted by the Commission is faulted, the entire selection will have to be quashed and that is not possible without giving opportunity of hearing to those who have been selected and appointed in different cadres."

We have considered the prayer of the petitioners in the light of the above judgments and found that none of the selected candidate has been impleaded as party in both the writ petitions, therefore, petitioners are not entitled for the relief prayed for in the petition. Undisputedly the petitioners participated in the selection process with open eyes and till declaring them unsuccessful they did not raise any objection, therefore, no interference is called for so as to grant relief as prayed.

We have considered the ground of wrong determination of vacancies and perused the advertisement (Annex.1) in which 187 vacancies were advertised. It is apparent that the posts were disclosed category-wise for all the respective candidates and before commencement of process of recruitment no grievance was raised by the petitioners and now without filing any documentary evidence, the petitioners are raising objection that vacancies were not determined in accordance with law. In our opinion, at this stage, there is no strength in the above argument of the petitioners because every unsuccessful candidate is searching fault in the selection process to challenge the selection process. The petitioners are also making same attempt so as to claim appointment without merit against the post for which they appeared and declared unsuccessful, therefore, we are not satisfied with the submissions made by the petitioners that vacancies are determined by the High Court in contravention of the rules. Further, we hold that unsuccessful candidates have no right or locus standi to raise objection with regard to determination of vacancy after declaring unsuccessful on completion of selection process.

It is also worthwhile to say that in none of the judgments cited by the petitioners mandate has been given by the Hon''ble Supreme Court to incorporate the moderation system for evaluation of answer sheets, as such no direction as prayed by the petitioners can be given to the respondent for incorporating the moderation system in rule 20 of the Rules of 2010 because jurisdiction to legislate the law left with Legislature not with the Court.

In view of the above discussion, no case is made out to quash the whole selection process upon challenge made by the unsuccessful candidates, therefore, both these writ petitions are hereby dismissed.