Rakesh Parashar vs The State of Rajasthan and Others

Alok Sharma, J.

The petitioner having lost out in the competition with the respondent No. 5 for appointment to the post of Associate Professor (Kriya Sharir) in the Madan Mohan Government Ayurved College, Udaipur pursuant to the Rajasthan Public Service Commission (hereinafter "RPSC") advertisement dated 26.02.2014 has filed this writ petition. Obviously the relief prayed for is that the appointment of respondent No. 5 be quashed and the petitioner as No. 1 in the waiting list notified by the RPSC be appointed.

The RPSC advertised one post for appointment as Associate Professor (Kriya Sharir) with Madan Mohan Government Ayurved College, Udaipur on 26.02.2014. The eligibility prescribed was graduation, post graduation in Ayurveda and five years teaching experience as reader/associate professor. The advertisement also indicated that it was desirable if the prospective candidates had done some research work, had some scholarship to show by way of articles published in journals relating to the subject and proof of having contributed to innovation in designing of new courses and curriculum. Pursuant to the advertisement dated 26.02.2014, twenty eight candidates applied for consideration to the said post in issue. No written examination was involved. The candidates who presented themselves before the RPSC on call, were interviewed on 03.12.2014. The result was declared on 04.12.2014 where the respondent No. 5 was found the most meritorious and so selected and appointed. The petitioner was placed at serial No. 1 in the waiting list.

Counsel for the petitioner has submitted that the application form submitted by the respondent No. 5 was liable to be rejected at the threshold by RPSC for reason of the respondent No. 5 allegedly having supplied misinformation with regard to his employment with the Government of Rajasthan. It has been further submitted that the respondent No. 5 did not comply with the guidelines of RPSC in failing to submit a NOC from his current employer i.e. State of Uttarakhand to apply for and participate in the selection process. It has been further submitted that the respondent No. 5 did not have a Ph.D, nor had any research work and scholarship credentials as against the petitioner possessing the "aforesaid" and in the circumstances the appointment of the respondent No. 5 on the post in issue over the petitioner was wholly arbitrary and unfair. It has been emphasized that since the respondent No. 5 had wrongly indicated in the online application form that he was at the relevant time working as a Rajasthan Government employee, the said fact went a long way in the selection of the respondent No. 5 over the petitioner. It has been finally submitted that the respondent No. 5 was not registered with the Board of Indian Medicines, Rajasthan and therefore also not liable to be considered or selected, as has done by RPSC in the result declared on 04.12.2014, for appointment to the post of Associate Professor (Kriya Sharir).

Counsel for RPSC has submitted that one post for appointment as Associate Professor (Kriya Sharir) was advertised. It was a post open to all candidates irrespective of their category or employment history except to the extent of requisite experience. In this context, the issue of the applicant in his online application indicating himself as a Rajasthan Government Employee was quite irrelevant. Further that appears to have been a mistake which in any event stood rectified by a more detailed application subsequently filled in and submitted by the respondent No. 5 along with others as required by RPSC wherein the factum of the respondent No. 5''s employment with the State of Uttarakhand was categorically stated. It has been submitted that the information with regard to employment within the State of Rajasthan or outside was not material to the evaluation of a candidate for the post of Associate Professor (Kriya Sharir) nor in fact with it reckoned at all in the evaluation of the comparative merit of the competing candidates. It has also been submitted that no NOC from the erstwhile employer of the candidates was mandatorily required for the post in issue, nor was it a part of terms and conditions set out in the advertisement dated 26.02.2014. The requirement was that in service candidates were to inform their respective head of department when applying to the post. But even that condition was merely directory in nature without any relevance to the evaluation of merit of the candidates who applied for consideration for appointment to the post of Associate Professor (Kriya Sharir). It has been further submitted that there was no requirement in the advertisement that for appointment to the post of Associate Professor (Kriya Sharir), the candidate should be registered with the Board of Indian Medicines, Rajasthan.

Counsel for the respondent No. 5 in turn, submitted that no false information was submitted as it would be evident from the detailed application filed by the respondent No. 5 with the RPSC prior to the interview and subsequent to the filing of the online application in the first instance. It has been submitted that owing to abbreviation "RG" in the online application form being vague, the respondent No. 5 made an innocuous mistake which had no bearing on his eligibility one way or the other. The subsequent off line application filed in detail prior to the interview showed the respondent No. 5''s employment with the State of Uttarakhand. It has been submitted that in terms of RPSC''s letter dated 03.02.2015 (Annexure-R/5/2 to the reply) issued on a RTI application having been moved, it has been categorically stated and rightly so, that no benefit was given to the respondent No. 5 by evaluating him as a Rajasthan Government employee. And in any event as such that was irrelevant. It has been submitted that the respondent No. 5 was registered with Indian Board of Medicines under serial No. 23151 but when he took employment in Uttarakhand, he got himself registered there, under registration No. UA000118. It has been submitted that in terms of the advertisement dated 26.02.2014 and even otherwise as the employee of the State of Uttarakhand, the respondent No. 5 had applied for a NOC on 13.03.2014 (Annexure-R/5/4 to the reply) and in fact on 29.11.2014 leave was sanctioned to the respondent No. 5 and on 12.12.2014 the erstwhile employer i.e. State of Uttarakhand has been informed by the respondent No. 5 of his selection for the post of Associate Professor (Kriya Sharir) with the Madan Mohan Government Ayurved College, Udaipur. It has been submitted that the respondent No. 5 fared better before the interview Board than did the petitioner, and hence despite the petitioner''s Ph.D. Decree and research work having been apparently taken into consideration by RPSC, the respondent No. 5 was found more meritorious. It has been prayed that the writ petition, wholly baseless as it is, be dismissed.

Heard and considered.

The issue before this Court as to whether the respondent No. 5 has been wrongly appointed in breach of the conditions of the advertisement dated 26.02.2014 or the governing rules. It is not the case of the petitioner that the respondent No. 5, does not have the requisite basic educational qualification and experience for consideration for appointment to the post of Associate Professor (Kriya Sharir). The case set up by the petitioner is instead based on alleged wrong information submitted by the respondent No. 5 with regard to his having been engaged with the State of Rajasthan. The submission is without force. For one the employer of the candidate was irrelevant as the post in issue was an open general category post seat where all eligible candidates were entitled to make an application for consideration for appointment. Aside of the aforesaid, the mistake occasioned in the online application form by the respondent No. 5 aside of being innocuous was rectified in a detailed off line application form filed thereafter by the respondent No. 5 along with other candidates as required by RPSC, prior to the interview, wherein the employment of the respondent No. 5 with the State of Uttarakhand was clearly stated. It is on record that RPSC has not considered candidates for selection to the post in issue on the basis of his employment with the State of Rajasthan or outside the State. This has been so categorically stated in Annexure-R/5/3 filed by the respondent No. 5 along with his reply to the writ petition. Aside of the aforesaid, I am also of the view that non-submission of NOC from the erstwhile employer is of no event. The advertisement dated 26.02.2014 did not set out such a condition. Further the respondent No. 5 in his reply which has not been contradicted by way of rejoinder or even otherwise has stated that he had sought a NOC from the state of Uttarakhand i.e. Annexure R/5/4 dated 13.03.2014 as also thereafter sought leave on 29.11.2014 apparently for the purpose of appearing in the interview for selection to the post of Associate Professor (Kriya Sharir). Subsequently he informed the State of Uttarakhand vide letter dated 12.12.2014 with regard to his having been selected to the post in issue. No objection to the petitioner seeking employment as Associate Professor (Kriya Sharir) with the Madan Mohan Government Ayurved College, Udaipur and finding it is on record at the instance of the State of Uttrakhand. The respondent No. 5 could have at best applied for the NOC and non-issue thereof without any good reason by the State of Uttarakhand cannot operate to the disadvantage of the respondent No. 5. Further that was not a condition at all in the advertisement. In the facts of the case, I am of the view that even otherwise unless for any compelling reason such as a disciplinary inquiry pending against an employee before the erstwhile employee, the non-grant of NOC cannot stultify the selection of a candidate to a post on merit as in the case the respondent No. 5 presently. This is nobody''s case in the present writ petition.

I am also of the view that the argument of the counsel for the petitioner with regard to the selection of the respondent No. 5 to the post in issue despite the petitioner being Ph.D and having done research work is quite untenable. The advertisement dated 26.02.2014 only stated that it was desirable that the prospective candidate should have a Ph.D and research work. However, that was not the basic qualification. Further the desirability of a Ph.D and research work cannot be construed as mandatory. No breach of a condition of appointment or a rule of law is made out before this Court. A writ petition under Article 226 of the Constitution of India can only succeed in the event of a legal or fundamental right of the petitioner being contravened or statutory duty of a respondent being overlooked or omitted. No such situation obtains in the present case.

The writ petition is therefore without force.

Dismissed.