Rakesh Kumar Meena vs Manjeet Singh

Alok Sharma, J.—Non compliance of the order dated 19-3-2012 is alleged in this contempt petition. By the said order this court referring to its earlier order dated 9-11-2011 in case of Prem Prakash Sharma Vs. RSRTC (S.B. Civil Writ Petition No. 13855/2011) and 95 other writ petitions directed as under:-

"The controversy being squarely covered by the aforesaid judgment in Prem Prakash Sharma, supra, these writ petitions are disposed of requiring all the petitioners to make a representation to the respondents, who shall consider and decide the same within a period of one month from the date of its receipt along with copy of this order."

Mr. Vigyan Shah learned counsel for the petitioner submits that the directions of this court to consider the petitioner''s representation has been complied with by the respondents only in form and not in substance, and the petitioner''s representation has been dismissed without reference to the directions of this court in Prem Prakash Sharma''s case. It has been submitted that the learned Single Judge in Prem Prakash Sharma''s case passed an agreed order on various aspects of disputes arising from RSRTC''s recruitment of Conductors against the vacancies of 2009-10 and 2010-11. Condition No. 2 of the agreed order was as under:-

"The respondent corporation will not insist upon minimum pass marks in the trade test, (and) accordingly, one would not be denied benefit of appointment merely for the reason that he/she has failed to secure minimum pass marks in the trade test. The appointment would, however, be purely on the basis of merit and if one has failed to secure merit marks, he/she would not be entitled for appointment."

It has been submitted that in spite of exclusion of requirement of minimum marks in the trade test from reckoning in evaluating comparative merit of candidates for appointment as Conductors, the petitioner''s representation has been rejected without considering his comparative merit in the ST category (to which he belonged) on the specious ground that all the vacancies of the post of Conductors with the RSRTC for 2009-10 and 2010-11 as advertised had been filled up and the recruitment process completed. It has been submitted that the purported decision on representation is thus not a decision (as a decision requires address on the grievance agitated) as warranted by the order dated 19-3-2012 but is a palpably malafide exercise of discretion by the respondents to deny the petitioner appointment to the post of Conductor in spite of his comparative merit in the ST category over those unlawfully selected.

Relying on this court''s judgment dated 3-12-2012 in DB Civil Special Appeal (W) No. 403/2012, it has been submitted that the Hon''ble Division Bench has held that completion of a selection process does not close the doors for candidates illegally left out in spite of their better comparative merit over those appointed. And consequently a writ petition challenging a selection process and arbitrary exclusion of the more meritorious candidate had to be decided on merit. It is submitted that in the circumstances the rejection of the petitioner''s representation on the ground of completion of the selection process is obviously an escape from the duty of the respondents and their "willful default" in failing to decide the petitioners representation on merits. It has been further submitted that a casual dismissal of representation filed by the petitioner under the directions of this court cannot be construed as compliance with directions of this court. Contrarily it evidences a complete disregard if not defiance in complying with the order of this court to consider the petitioner''s representation and is ex-facie contempt of court for which the respondents be punished.

Mr. Hemant Taylor, appearing on behalf of respondents has submitted that the petitioner''s representation has also been rejected on the ground that he had approached this court subsequent to 9-11-2011 when the judgment in the case of Prem Prakash Sharma was rendered. It has been submitted that this court has held that those overlooked even if illegally for appointment to the post of Conductors with RSRTC against the vacancies of 2009-10 and 2010-11 had no remedy available in law if they had approached the court subsequent to 9-11-2011. For this proposition, counsel referred at length to the judgment in the case of Prem Prakash Sharma. It has also been submitted that the appointment process having been completed, re-opening the issue would only lead to administrative chaos deleterious to public interest and hence the petitioner''s representation was also rightly rejected.

Heard counsel for the parties and perused the judgment dated 19-3-2012 of which non compliance is alleged as also the judgment dated 9-11-2011 in the case of Prem Prakash Sharma.

The order dated 9-11-2011 in case of Prem Prakash delved on various issues regarding illegality in the appointment of conductors. One issue was with regard to multiplication of marks in the trade test by 2.5 in view of the court holding that the requirement of a driving licence for appointment on the post of Conductor was contrary to Motor Vehicles Act, 1988 and the Rules thereunder. The other issue, relevant to this contempt petition, was with regard to the provision of minimum pass marks in the trade test, which was under challenge, inter alia for the reason that such requirement was not indicated in the advertisement for the post of conductor for vacancies of the year 2009-10 and 2010-11, and was also not subsequently added at any point of time by issue of a corrigendum. Taking into consideration the plea of RSRTC that in the event court were to intervene in the writ petitions filed before it on the issue of appointment of conductors, RSRTC as a Government of Rajasthan undertaking would be gravely prejudiced in not having requisite number of conductors essential for running buses in public interest, the court invoked its extra-ordinary equitable jurisdiction under Article 226 of the Constitution of India to find a resolution to the disputes by way of a consent order. However, to my mind, only in respect of grant of 2.5 times marks over the marks secured in the trade test for appointment on the post of conductor, the order of this court was limited to 9-11-2011 i.e. the date of passing the order being the cut off date. It is not for this court to express any view on the agreed order on the aforesaid aspect, inasmuch as the counsel for the petitioner has submitted that the issue is pending before the Division Bench of this court by way of D.B. Civil Special Appeal (W) No. 72/2013 as a view contrary to the view in Prem Prakash Sharma that 2.5 times the marks in the trade test be confined to those candidates who had approached this court on or before 9-11-2011 has been taken by a learned Single Judge at the Principal Seat at Jodhpur in case of Panne Singh and Others Vs. RSRTC and Others, . But that is besides the point in this contempt petition. And be as it may, from a reading of the judgment in the case of Prem Prakash Sharma (supra) it does not appear to me that the court''s order with regard to not requiring minimum passing marks in the trade test was limited or confined to only those who had approached the court on or before 9-11-2011. In the agreed order, on the issue reflected at page 12 of the certified copy of the judgment of this court in the case of Prem Prakash Sharma (supra), it is evident that the court held that a minimum passing marks in trade test was not indicated in the advertisements originally or at other point of time by way of corrigendum. And consequently the condition of minimum marks in the trade test could not be take into consideration for determination of the comparative merit of the candidates, the merit perforce had to be based on the aggregate marks secured by a candidate in the written test and trade test. The conclusion of this court was founded upon the legal and constitutional imperative of treating all candidates at par as a homogeneous class without arbitrarily categorising them as between who approached the court before 9-11-2011 and those who invoked the jurisdiction of this court to ventilate their grievance subsequently. The conclusion of the Single Judge in the case of Prem Prakash Sharma (supra) on the issue of minimum marks in the trade test was on merits albeit also on consent.

In my considered view, there is no force in the contention of counsel for RSRTC that the representation of the petitioner having been rejected this court should eschew its contempt jurisdiction and require the petitioner to challenge the order of rejection of the representation by way of a fresh writ petition as the petitioner now has a fresh cause of action. When this court directs a representation to be considered, it entails a just and fair consideration and not a sham exercise. If the view taken by the authority to which a direction has been issued is a possible view, it is no doubt true that this court would not intervene there against in contempt jurisdiction and require the petitioner to take his remedy in accordance with law against a fresh cause of action arising from rejection of the representation. That course however would not commend in a case where the exercise of the discretion, of authority to which representation is made under direction of a court, is palpably perverse, deliberately intended to deny the petitioner''s right, evidently illegal and malafide. A direction of this court for consideration has to be seriously taken and a just and fair consideration made. This evidently does not appear to have been done in the present case.

The contention of the counsel for the respondent is that the petitioner''s representation was rejected in terms of the dead line set out by the court in its order dated 9-11-2011 in the case of Prem Prakash Sharma. This contention is not supported by a strict and close reading of the judgment in case of Prem Prakash Sharma (supra) and deserves to be rejected. As stated herein above, the direction of this court with regard to minimum passing marks in the trade test not applying in the recruitment of conductors was independent on court''s direction to grant 2.5 times marks obtained in trade test in view of the court finding that the requirement of a driving licence for appointment on the post of Conductor was ultra vires the provisions of Motor Vehicles Act, 1988. The requirement of minimum passing marks in the trade test was another, separate and independent issue as it was sought to be invoked without there being such a condition in the advertisement for recruitment in issue for the post of conductors. Further the petitioner''s representation was rejected on 18-7-2012 and while Prem Prakash Sharma (supra) case was decided subsequently on 30-7-2012, when this court observed that the benefit of 2.5 times marks otherwise obtained in the trade test would be applicable to those who had approached this court on or before 9-11-2011. In my considered opinion, the rejection of petitioner''s representation in a sham exercise by the respondent appears to be perverse, apparently reckless and even malafide in law.

Consequently, I would require the respondent to reconsider petitioner''s representation within a period of seven days from today and pass an appropriate order thereon, following a fair and just reconsideration in terms of observations made herein above--Failing which the Managing Director of RSRTC shall be present before this court on October 27, 2014.

As a foot-note, it might be in place to add that scores of contempt petitions with regard to appointment of conductors in RSRTC against vacancies pursuant to advertisements for the vacancies of 2009-10 and 2010-11 indicate that the recruitment process was completely messed up. Ad hocism in name of urgency has been resorted to and legal and constitutional rights of candidates swept aside. The Chairman-cum-Managing Director, RSRTC should reevaluate the result of conductors recruited against the vacancies pursuant to advertisements for the year 2009-10 and 2010-11 and re-draw a merit list in terms of orders passed by this court from time to time, on the basis of aggregate performance of the candidates in the written test and the trade test. It is no doubt true that the RSRTC cannot appoint conductors to more posts than have been sanctioned but that would not justify denial of rights to the more meritorious candidates and whole scale breach of the constitutional mandate by which we all swear and live. On a fresh merit list being drawn in accordance with the directions of this court for the vacancies of 2009-10 and 2010-11, RSRTC should within six weeks from today also consider removal of less meritorious candidate if they occupy a post, which in law could not have been theirs and first appoint those who are entitled to on the basis of orders of this court and (in conjunction) their better comparative merit. Equity cannot trump law and the constitutional mandate.

List the case on November 3, 2014.