Rajasthan Public Service Commission, Ajmer vs Rekha And Ors

There is delay of 75 days in filing of the appeal.

Application No. 50/2019 under Section 5 of the Limitation Act has been by the appellant seeking condonation of delay in filing of the appeal. It is contended therein that writ petition filed by Respondent No. 1 was decided by the learned Single Judge in limine and the said fact came into the knowledge of the appellant only when representation was submitted by Respondent No. 1 before the appellant on 20.08.2018. Thereafter, the appellant took a decision to file appeal on 22.10.2018. Learned counsel for the appellant submitted that delay occurred due to office process and the same is not intentional on the part of the appellant.

Despite service of notice of appeal as well as application under Section 5 of the Limitation Act, no one has appeared on behalf of Respondent No. 1.

Learned counsel appearing on behalf of for Respondent No. 2 and 3 has opposed the application.

Considering the aforementioned reasons, we are of the view that there was sufficient cause which prevented the appellant from the appeal within time and, therefore, delay in filing of the appeal is condoned. Application No. 50/2019 stands allowed.

Heard learned counsel for the appellant as also learned counsel for Respondent No. 2 and 3 on the appeal.

This appeal has been filed by the appellant-Rajasthan Public Service Commission challenging judgment dated 07.08.2018 passed by learned Single Judge of this Court whereby writ petition filed by Respondent No. 1 Rekha has been disposed of in terms of judgment dated 18.08.2017 rendered by Coordinate Division Bench of this Court at Principal Seat at Jodhpur in Trilok Ram Vs. The State of Rajasthan & Others, (D.B. Special Appeal Writ No. 667/2015 along with other connected matters).

Learned counsel for the appellant submitted that learned Single Judge has passed the impugned judgment without issuing notice to the appellant by relying upon the aforesaid judgment in Trilok Ram (supra). Since notice was not issued to the appellant, correct facts could not be placed before the learned Single Judge. Case of Respondent No. 1-writ petition Rekha is entirely different and was relating to different rules. It is argued that case of Trilok Ram (supra) was relating to Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996') whereas case of Respondent No. 1 in the present case is pertaining to Rajasthan Education Service Rules, 1970 (for short 'the Rules of 1970'). Learned counsel for the appellant further submitted that case of Respondent No. 1 is pertaining to recruitment on the post of School Lecturer (English) advertised vide notification dated 16.10.2015 under the Rules of 1970 whereas case of Trilok Ram (supra) pertained to advertisement dated 11.08.2013 issued under the Rules of 1996 for appointment on the post of Primary and Upper Primary Teachers.

Learned counsel for the appellant argued that Respondent No. 1 submitted online application in response to Advertisement dated 16.10.2015 wherein a specific condition regarding the acquirement of educational qualification was incorporated that a candidate should possess B.Ed. degree recognised by the State Government and Post Graduate degree in the relevant subject. It was further mentioned in the note appended therein that any candidate who has appeared or was appearing in the final year examination of the course, which is requisite educational qualification for the post as mentioned in the rule or schedule for direct recruitment, shall be eligible to apply for the post but he shall have to submit proof of having acquired the requisite education qualification before the date of the examination conducted by the appellant otherwise, such candidate shall be treated as ineligible. It is submitted that written examination for the post of School Lecturer (English) was conducted on 17.07.2016 for the subject of G.K. and for the subject of English on 21.07.2016 whereas result of Respondent No. 1 for M.A. (English) was declared on 13.09.2016. Learned counsel submitted that complete facts, law and relevant rules could not be placed before the learned Single Judge. It is submitted that the controversy involved in the present case is squarely covered by judgment of Single Bench of this Court in Kamlesh Katariya Vs. State (S.B. Civil Writ Petition No. 11217/2015 decided on 10.08.2016), which judgment was upheld by Division Bench of this Court in RPSC Vs. Kamlesh Katariya (D.B. Special Appeal (Writ) No. 1373/2016 decided on 10.04.2017).

Learned counsel appearing on behalf of Respondent No. 2 and 3 though opposed the appeal, but could not controvert the aforementioned factual aspect of the matter.

Having heard learned counsel for the parties and perused the material on record, we find that the relied judgment of this Court in Trilok Ram (supra) decided with analogous matters on 18.8.2017 was distinguishable and cannot be applied to the facts of the present case. This Court interpreted proviso to Rule 266(3) of the Rules of 1996, which inter alia stipulated that "the person who has appeared in the B.Ed./B.S.T.C. examination shall be eligible to apply for the post of primary and upper primary school teacher, but he shall have to submit proof of having acquired the said educational qualification to the District Establishment Committee before the declaration of the result of the said examination." The examination referred to in the aforesaid proviso denotes the competitive examination for recruitment to the post of Primary and Upper Primary Teacher. However, in the present case, the dispute pertains to the recruitment on the post of School Lecturer (English), which is governed by the Rules of 1970.

By the Rajasthan Various Service (Amendment) Rules, 1999, an omnibus amendment was made in each of the Service Rules as mentioned in column no.2 of the Scheduled appended to the aforesaid Rules. The proviso inserted thereby stipulated that the person who has appeared or is appearing in the final year examination of the course which is the requisite educational qualification for the post as mentioned in the rules or scheme for direct recruitment, shall be eligible to apply for the post but he/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency before appearing in the written examination, where selection is made only through written examination. In the present case, last date of receipt of application form as per the advertisement dated 16.10.2015 (Annexure-1 to writ petition) was 23.11.2015 and the date of competitive examination for recruitment was 17th and 21st July, 2016. Respondent No. 1 even though had appeared in the M.A. Final Examination of the English subject before holding of aforesaid competitive examination, but the result thereof had not been declared prior to the aforesaid date and was belatedly declared on 13.9.2016. Therefore Respondent No. 1-writ petitioner as per clause (iii) of the proviso aforesaid introduced vide Rajasthan Various Service Rules, 1999 did not acquire the requisite education qualification of eligibility before declaration of result of competitive examination. Since the impugned judgment has been passed without even any notice to the appellant and it was an ex-parte judgment, the appellant did not come to know thereabout.

In view of above discussion, appeal is allowed. Judgment dated 07.08.2018 is set aside and the writ petition is revived to be decided by the learned Single Judge of this Court on merits afresh after affording opportunity of hearing to the parties. We, however, make it clear that whatever has been observed herein should be taken tentative for the purpose of deciding the appeal. The learned Single Judge shall decide the writ petition without being influenced by the observations made hereinabove.

Stay Application No. 542/2019 stands disposed of.