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Judgment
M.N. Bhandari, J—With the consent of learned counsel for the parties, writ petitions were heard finally.
The Rajasthan Public Service Commission (in short "RPSC") issued an advertisement on 15th May, 2015 to invite applications for the post of Assistant Public Prosecutor Gr.II (in short "APP Gr.II"). In pursuance to the said advertisement, application was to be submitted On-line. The applications of the petitioners were not accepted On-line because they were not confirming to the criteria of age. In fact, petitioners became overage for selection in pursuance to the advertisement dated 15th May, 2015. They accordingly approached this court by these writ petitions wherein interim order was passed in their favour. The petitioners were permitted to submit application Off-line. The reason for passing interim order is that out of total vacancies so advertised by the RPSC on 15th May, 2015, 159 posts of APP Gr.II have been kept subject to final outcome of pending SLP before Hon''ble Apex Court.
It so happened that earlier an advertisement was issued by the RPSC somewhere in the year 2011 to invite applications for the post of APP Gr.II. In pursuance to the said advertisement, selections were made followed by declaration of result. The dispute about questions and answers set by the RPSC was raised thus, several writ petitions were filed before this court. Those writ petitions were allowed finding that various answers set by the RPSC and even expert opinion taken therein were not proper. A direction was accordingly given for change of answer of certain questions and thereupon to conduct interview after preparation of the list afresh. On challenge to the said judgment before the Division Bench, entire selection process in reference to the advertisement dated 26th May, 2011 was quashed with a direction to hold process of selection afresh. The matter is now pending before Hon''ble Apex Court in various appeals wherein certain interim orders have been passed. In pursuance to one interim order, the Government has appointed 148 candidates on the post of APP Gr.II but their appointments were made subject to final outcome of the pending SLP. It is stated that 34 candidates did not join after appointment offered to them. In the meanwhile, the RPSC was permitted to amend the rules, if they so choose but it was to be within a period of three months from the date of order of the Hon''ble Apex Court. The advertisement in question was issued by the RPSC in the meanwhile to invite applications against 275 posts, out of which, selection against 159 posts has been kept subject to final outcome of the pending SLP. The claim of the petitioners is against those 159 posts, which are of the year 2011-12. The petitioners were within age limit at the relevant time. If the selection, so conducted, in pursuance to the advertisement dated 26th May, 2011 is quashed by the Hon''ble Apex Court, obviously all the posts so advertised would be filled in pursuance to the advertisement in question. In that case, the petitioners should be treated within age against 159 posts of the year 2011-12. In case, selection earlier conducted in pursuance to the advertisement dated 26th May, 2011 is maintained, obviously for the posts came after the year 2011-12, petitioners would be overage. The aforesaid background was basis for passing interim order. The prayer is now to consider the petitioners to be eligible and accordingly after declaration of result, if they qualify in the selection and stand in merit, be given appointment.
Learned counsel appearing for RPSC and the State of Rajasthan have opposed the petition. It is submitted that so far as posts advertised vide advertisement dated 15.05.2015 are concerned, all the petitioners were allowed to submit application Off-line provisionally in view of interim order of this court. The petitioners are otherwise over-aged as per the terms of advertisement and in consonance to the rules. The prayer made by the petitioners may thus not be accepted. It is however true that controversy in regard to selection and appointment of 159 candidates in pursuance to the advertisement dated 26th May, 2011 is pending consideration before Hon''ble Apex Court. The appointments against those posts have been given provisionally in view of interim order passed by the Apex Court but those are made subject to final outcome of the SLP. In view of above, while adding 159 posts in the new advertisement dated 15.05.2015, it was made clear that those posts would remain subject to final outcome of the pending SLP. If those appointments are maintained, the RPSC would recommend appointments only against remaining post out of 275 posts so advertised. Thus if at all claim of the petitioners is accepted, it may be clarified that it would be against 159 posts and not otherwise. If ultimately appointment of the candidates in pursuance to the advertisement dated 26th May, 2011 is maintained, then petitioners would have no claim being overage for the post so advertised on 15.05.2015.
I have considered the rival submissions made by the parties and perused the record.
It is a case where arguments have been made by both the parties in reference to two different advertisements for the post of APP Gr.II. One advertisement was issued on 26th May, 2011 followed by selection. It was finally quashed by the Division Bench in bunch of special appeals led by State of Rajasthan Vs. Kamlesh Kumar Sharma & Ors. bearing D.B. Civil Special Appeal No. 698/2013 vide its judgment dated 25th October, 2013. The matter is now pending consideration before the Hon''ble Apex Court. Since the State Government shown difficulty to carry out the work in the court in absence of adequate number of APP, the Hon''ble Apex Court permitted to fill the post provisionally but made it subject to final outcome of the pending SLP. The State Government issued appointment orders in favour of 148 candidates, out of which, 114 candidates have joined the post. While the SLPs are pending before the Hon''ble Apex Court, a liberty was sought and granted to amend the rules. The rules have been amended but it is in regard to method of selection test. Whether it should be by setting paper with objective question or descriptive. The aforesaid is not going to affect selection in pursuance to the advertisement dated 26th May, 2011. The respondent-RPSC issued another advertisement in question. It is to fill up 275 posts in all. At the top of the advertisement dated 15th May, 2015, it was mentioned that 159 posts would remain subject to final outcome of the pending SLP. The relevant para of the said advertisement is quoted hereunder for ready reference:
The said advertisement does not show or clarify that 159 posts are same which were earlier advertised on 26th May, 2011. They have been included to remove uncertainity and anticipating that selection made in pursuance to the earlier advertisement may finally be set aside thus, without waste of time, new advertisement should include those posts also. In the alternatively, 275 posts are presently existing subsequent to the advertisement dated 26th May, 2011, accordingly an advertisement has been issued. If all the 275 posts are taken to be new vacant post subsequent to the advertisement dated 26th May, 2011 then none of the petitioner is eligible for appointment as they are over-aged as per the advertisement and the rules. It is however necessary to clarify that if 275 posts include 159 posts earlier advertised on 26th May, 2011 then petitioners were within age as on the crucial date of determination of vacancies and issuance of advertisement on 26th May, 2011. It is only due to litigation that selection in pursuance to the advertisement dated 26th May, 2011 has not attained finality as yet either by maintaining it or quashing it. In view of above, a direction can be given to the respondents to consider the petitioners to be eligible in pursuance to advertisement in question, if 159 posts are those which were earlier advertised on 26th May, 2011. It is moreso when those who have been appointed provisionally are given relaxation in age and treated to be eligible. If those candidates have been treated to be eligible, it can be against the vacancies earlier advertised and not otherwise. If such candidates are treated eligible then petitioners are similarly placed other than that they could not get appointment in pursuance to the earlier selection in dispute but if the earlier selection is finally declared to be illegal then position of petitioners and the appointee becomes same. In view of facts given above, these writ petitions are disposed of by the following directions:
(i) If 275 posts so advertised on 15th May, 2015 include 159 posts so advertised on 26th May, 2011 then petitioners would not be treated as over-aged against 159 posts. The age of the candidate be taken as on the date of earlier advertisement. Their candidature would accordingly be considered however it would remain subject to final outcome of the pending SLP. If SLP is allowed by quashing judgment of the Division Bench and thereby maintaining the selection then obviously 159 posts would be filled in pursuance to the advertisement dated 26th May, 2011. In that eventuality, the petitioners would not be eligible against new post.
(ii) 159 posts were determined in the year 2011 and selection earlier made is quashed without maintaining the appointments given by way of interim arrangement then also consideration of the petitioners by treating them to be eligible would be only against 159 posts and not for the post which fall vacant subsequently (275-159) i.e. against 116 posts.
(iii) All the candidates would be given same treatment in regard to eligibility of age. It would be irrespective that they have been given appointment in pursuance to the interim order of the Hon''ble Apex Court. The discrimination between candidates cannot be made by the RPSC so as the State Government hence directions given in Para Nos. (i), (ii) & (iii) would apply to all the candidates who are over-aged for the advertisement dated 15th May, 2015.
(iv) If all the 275 posts are taken to be subsequent to the advertisement dated 26th May, 2011 then petitioners and other similarly placed would not be eligible for appointment being overage. The similar treatment would be given to other candidates and discrimination would not be made only for the reason that few candidates are working under the interim order of the Hon''ble Apex Court.