Mukesh Kumar Saran vs State

Instant intra appeal has been filed against the order of the ld. Single Judge dt. 11.2.2013.

The brief facts that culled out from the record and relevant for our purpose and disposal of the instant appeal are that the post of Constable which is included in the Schedule appended to the Rajasthan Police Subordinate Service Rules, 1989 for various districts came to be advertised vide notification dt. 14.10.2010 and the applications were invited from the eligible candidates who intends to participate in the selection process on or before 12.11.2010. The present appellant being eligible and member of OBC submitted his application and participated in the selection process for district Ajmer and after qualifying written test & physical test appeared for interview on 20.6.2011 and at that point of time document what is being indicated in the application form was to be furnished before the selection committee for verification and as per the scheme of selection process for determination of merit and to maintain transparency in the selection process bonus marks are awarded for the applicants holding NCC certificate of category A, B & C claiming 2, 3 & 5 marks respectively. After the appellant appeared and participated in the selection process, the cut off marks in general category male was 79.375 and he too secured the cut off marks but as regard bonus marks for NCC certificate is concerned, he was awarded 3 marks which is evident from the communication sent from the office of Superintendent of Police, Ajmer under right to information dt. 25.7.2011, but the appellant being younger in age and those who secured cut off marks but elder in age on the basis of date of birth, their inter se merit was prepared and he could not march over the person who was selected, however, if there would be any additional vacancy available, there was full possibility that he too have been considered for appointment as he too secured cut off marks (79.375) finally notified from the office of S.P., Ajmer.

The appellant filed a writ petition in this Court and his only grievance was that he was entitled for award of 5 bonus marks for NCC ''C grade certificate which he has furnished before the selection committee on the day when he appeared for interview on 20.6.2011 that makes him entitled to get 5 bonus marks and if this has been taken note of he would secure higher marks and become eligible for appointment and both the certificate NCC ''C grade provisionally and final issued on 16.6.2011 & 29.6.2011 have been placed on record along with the writ petition annexed as Ann. 5 & 12 respectively.

In the reply filed by the respondent before the ld. Single Judge, their bone of contention was that on the date when the appellant appeared for interview on 20.6.2011, he had submitted NCC ''B'' grade certificate and 3 bonus were rightly awarded to him and being younger in age could not be considered for appointment and as regard the contention of the appellant that he should have been awarded 5 bonus marks for ''C'' grade certificate, the bone of contention of the respondent before the ld. Single Judge was that he was not holding ''C'' grade certificate on the date when he appeared before the selection board that does not make him entitle to claim 5 bonus marks.

After hearing the parties, the ld. Single Judge took note of nature of enquiry being conducted by the respondent and was of the view that this being a disputed question of fact as to whether the certificate furnished by the appellant at the time of interview dt. 20.6.2011 was of ''B'' or ''C'' category cannot be examined by this Court under limited scope of judicial review available under equitable jurisdiction u/Art. 226 of Constitution and left the issue to be raised before the civil court and declined to consider the grievance of the appellant on the basis of material which came on record.

We have heard the parties and also perused the material available on record.

In the facts of the instant case, the controversy which emerges for consideration is as to whether the appellant is entitled to claim 3 or 5 bonus marks on the basis of NCC ''B'' or ''C'' grade certificate to decide his fate as to whether he could be considered for appointment for the post of Constable for district Ajmer pursuant to advertisement dt. 14.10.2010.

It is not the case of the respondent that the appellant did not qualify either at initial stage (written test) or at second stage where participant has to appear for physical efficiency test and NCC ''C'' grade certificate which was obtained by him provisionally and final dt. 16.6.2011 & 29.6.2011 were either not issued by the competent authority or on being enquired, the genuineness of both the certificates placed by the appellant on record along with the writ petition Ann. 5 & 12 is not controverted by the respondent.

It is true that the respondents have disputed that he was not holding NCC ''C'' grade certificate at the time of interview on 20.6.2011 and on the contrary he was holding NCC ''B'' grade certificate. However, we do not find any further enquiry to be undertaken but still the fact remains that the appellant was holding NCC ''C'' grade certificate duly issued & dispatched by the competent authority dt. 16.6.2011 & 29.6.2011 and it is not the case of the respondent that provisional certificate of NCC ''C'' grade dt. 16.6.2011 was not acceptable for grant of bonus marks and with all reasonable probability there appears no justification for him to withhold the NCC ''C'' grade certificate provisionally issued on 16.6.2011 while he appeared before the interview board on 20.6.2011 and that certainly makes him entitled for grant of 5 bonus marks as per the policy laid down by the respondent for determination of merit of the applicant. At the same time, we would further make it clear that we are not doubting the credibility of the selection committee but from the material which has come on record with reasonable prudence it cannot be ruled out that there appears any possibility for the applicant to withhold the NCC ''C'' grade certificate issued on 16.6.2011 on the day when he appeared for interview on 20.6.2011. The ld. Single Judge dismissed the writ petition on the premise that there being a disputed question of fact as to whether appellant possess NCC ''B'' or ''C'' grade certificate on the date of interview dt. 20.6.2011 and has shown reluctance to interfere u/Art. 226 of the Constitution.

In our considered view, when the document and counter document are placed on record there would always be some dispute between the parties but mere raising dispute may not in itself be sufficient to dislodge the claim of the appellant from approaching this Court by filing petition u/Art. 226 of the Constitution and may be non-suited if the parties are required to lead their evidence in support of their claim.

In the facts of the instant case, the material which has come on record is sufficient to arrive to a conclusion that the incumbent was holding certificate of NCC ''C'' grade dt. 16.6.2011 and 29.6.2011 and throughout contending before the Court by filing writ petition that he had furnished NCC ''C grade certificate at the time of interview on 20.6.2011. We do not find any material on record which could rule out the fact which the appellant has been able to establish before the Court from material on record.

Consequently, in our considered view, the judgment of the ld. Single Judge is not sustainable. The appeal is allowed and the order of the ld. Single Judge dt. 11.2.2013 is hereby quashed and set aside and the respondents are directed to take note of 5 bonus marks on the basis of NCC ''C'' category certificate and consider him for appointment on the post of Constable in district Ajmer pursuant to advertisement dt. 14.10.2010 and appropriate order subject to police verification and fulfillment of all other conditions contemplated under the Scheme of Rules, 1989 be passed within 30 days. No cost.