State Of Rajasthan And Ors vs Maldev Dewasi

S. Ravindra Bhat,CJ

Complaining of arbitrariness, these unsuccessful candidates for the post of Police Constable approached the Court under Article 226 of the

Constitution of India. The principal argument on their behalf was that although they have cleared the written test and also fulfilled the physical

parameters, they were given extremely a short notice or intimation for appearing in the Physical Standard Test (hereafter referred as “PSTâ€) and

Physical Efficiency Test (hereafter referred as “PETâ€) which involved inter-alia 5 km. run. The learned Single Judge accepted the

petitioners’ contention and directed the respondents to conduct a re-test. The State of Rajasthan, aggrieved by that decision is in appeal before this

Court.

The essential facts are that the writ-petitioners/respondents cleared the written test. They were informed at the stage of their having qualified in the

written test that the date for their PET and PST would be intimated subsequently at the web- portal of the State. The result of the written test was

declared on 30.8.2018 and the State uploaded the admit cards in respect of successful candidates on 4.9.2018 at 6.00 PM. The successful candidates,

including the writ-petitioners, were asked to appear for the PST/PET at 6.00 AM the following morning on 05.09.2018. It is not in dispute that they

reached the venue where the PST/PET was held but were declared unsuccessful in the PET, because they could not complete the run within the

prescribed time.

The argument made on behalf of the writ petitioners, which found favour with single judge was that in somewhat similar circumstances a

communication dated 7.9.2018 was addressed by the Commissioner of Police, Jodhpur (Chairman of the Selection Board) to the Superintendent of

Police, Jalore, Pali and Sirohi, requiring a re-test, since several candidates could not appear on account of certain technical reasons which resulted in

the later uploading of their admit cards at the Police Department’s website. The denial of their opportunity impelled the state to grant another

opportunity.

The learned Single Judge allowed the writ petitions of the respondents inter-alia holding as follows:-

“Despite specifically putting a query to the learned counsel appearing for the respondents as to what prompted the respondents in holding the

PST/PET on such a short notice and why the candidates could not be given sufficient time in this regard, no convincing response was forthcoming, as

initially it was submitted that probably on account of availability of ground for PET a short notice was given, however, the said reason appears to be

baseless inasmuch as the ground to be used for the purpose is the Rajasthan Police Training Centre, Mandore Road, Jodhpur, which is

respondent’s own ground.

The other submission made by learned counsel for the respondents i.e. as the notification dated 13/8/2018 was issued to the effect that candidates,

who are declared successful in the written examination must remain prepared for the purpose of PST/PET as they may be called for at any point of

time and, therefore, the candidates cannot make any grievance, is also baseless inasmuch as the said notification was issued for the candidates who

had cleared the written examination, however, the result of the petitioners was declared on 30/8/2018 and, therefore, the notification dated 13/8/2018

(Annex.R/1) was not meant for them.

Besides the above fact, another important aspect which is required to be noticed is that despite holding PST/PET on 5/9/2018 and on subsequent

dates, a lot of posts in all categories are lying vacant as is evident from the chart made available by the learned counsel for the respondents, wherein,

for the post of Constable (GD) out of 50 posts, 20 are vacant, for Constable (Driver) out of 16 posts, 11 are vacant, for Constable TSP out of 92, 88

are vacant, and for Constable Driver (TSP) 05 out of 05 posts are vacant. In view of the vacancies available, despite PST/PET held twice by the

respondents, the respondents otherwise cannot have any objection in case the petitioners, despite adversities, as noticed hereinbefore, attempted their

PST/PET and failed, some by very small margin, are accorded one more opportunity in this regard.â€​

The learned Single Judge therefore directed the State of Rajasthan to hold a fresh PET for the writ-petitioners on 15.10.2018 at the Rajasthan Police

Training Centre, Mandore Road, Jodhpur.

The State argues that the directions given are based upon an incorrect appreciation of the entire circumstances. It is urged by Mr. Sandeep Shah

that when the writ-petitioners concededly received the information and choose to participate in the PET, they could not have complained stating that

they had inadequate notice. In this regard, it is submitted that a cause of action or grievance in such circumstances is barred. Learned counsel relied

upon the judgment of the Supreme Court reported as Madras Institute of Development Studies & anr. V/s Dr.K. Sivasubramaniyan & ors. (2016(5)

SCC 454). It was also urged that the Court could not have granted relief in the absence of participation in the writ proceedings by the selected

persons. It was also argued that the vacancies existed in different categories such as General, OBC, SC/ST, MBC etc. and that without considering

these details, the Court could not have issued the impugned directions. It is contended besides that the mere circumstance that certain vacancies

existed could not have led the Court to prolong the recruitment process since other eligible candidates would now be entitled to claim that they be

allowed to participate. Lastly, the State also argued that though 129 candidates were declared successful and permitted to participate-by issuing the

admit cards, 100 actually appeared in the PST/PET and 23 could successfully complete the PET. It could thus not be contended that there was denial

of opportunity to the candidates, all of whom stood on the same footing, since the admit cards were uploaded the same time, i.e. 12 hours before the

event.

Learned counsel for the writ-petitioners/respondents-candidates argued that this Court should not interfere with the findings of the learned Single

Judge. It was submitted that the learned Single Judge appreciated all circumstances in the right perspective and had also relied upon a judgment of the

Allahabad High Court in Ajay Kumar Yadav V/s State of U.P. & ors. (Special Appeal Defective No.1068/2012 decided on 10.12.2012). It was also

urged that the facts of the case clearly demonstrate discriminatory approach on the part of the State, which on its own granted relief of re-test to

several candidates who could not reach the venue in another place but they denied it to those who did despite all odds. Learned counsel sought to urge

that the writ-petitioners in this case had barely a few hours notice and had reached Jodhpur in early hours in the morning- at 2.00 AM. It was argued

that even if some candidates managed to appear and successfully compete in the PET, that factor proved nothing because what distance they had to

travel before they reached the venue has not been mentioned by the state. Besides, counsel for the writ petitioners argued that some of the candidates

were able to qualify in the re-test pursuant to the PET ordered by the court, and equities have to be therefore, balanced in their favour.

This court notices that at the outset, the writ petitioners’ mainstay argument was that in another instance, when candidates could not reach the

venue, due to short notice, i.e. uploading of admit cards on the official website, the state had, suo motu, granted the benefit of a re-test or second

opportunity to clear the PST/PET. In the opinion of the court, in the absence of any facts relating to why second opportunity was given, the court

could not have, on an assumption of parity â€" as it were- have proceeded to issue directions for a re-test. In the overall facts of this case, it appears

that no less than 100 candidates participated; though about 29 did not report for the PET. Now, there is nothing on the record to show that any of

those who did not reach the venue ever complained of arbitrariness. As regards those who did participate, no less than 23 did succeed. Although

details of these candidates and how far they had to travel has not been furnished before the court, what is clear is that they like the petitioners, were

intimated only 12 hours before the tests. Out of the 100 who turned up at the venue, 23 cleared the PET. This reveals, ipso facto, that some

candidates were given short notice, to reach the venue and compete in the PET was not such a deterrent to all those who did in fact reach, and

participate in the test. No doubt, some candidates- like the writ petitioners felt inconvenienced, perhaps because of the short notice. Yet, what is

noteworthy is that they did reach the venue and felt up to it to compete; they did not register any protest at the stage of the PET.

This court has not been provided any details about the number of participants who could not reach the venue, as a result of which the State police

authorities were impelled to order a test for them, in the communication addressed to police officials in Jalore and Pali. In the absence of any such

comparative data, it cannot be concluded that the writ petitioners were equally deprived. Significantly, the petitioners did participate and importantly, a

substantial number of other candidates also turned up and participated.

Granting a second opportunity or re-test, under the circumstances of this case, in the court’s opinion, would not be a justified exercise of judicial

review powers. No doubt, the petitioners had 12 hours notice; however all others (including the 23 who participated successfully and the 90 odd others

who took part) also had short notice. Furthermore, to compete in a physical efficiency test, it is not the availability of a few days or even a couple of

weeks, that is important. Testing endurance parameters, is one of the important objectives of the PET, which includes a 5 km run to be completed

within a stipulated time. It cannot reasonably be argued that such endurance or stamina can be built overnight or in a few days; what is essential to do

so, is constant and consistent practice. If one keeps these aspects in mind, it cannot be said that the writ petitioners were placed under such

tremendous disadvantage as to be the reason why they could not clear the PET.

Another reason, which this court has to take note of is that among the 77 odd unsuccessful candidates, only a handful have come forward,

claiming prejudice. Granting the facility of a re-test to these candidates who approached the court, in the opinion of the court would mean at one

stroke denying similar treatment to others who have no grievance, and more importantly creating an entirely different set of circumstances, from the

one under which the rest of the candidates participated, including those who successfully cleared the PET. This aspect was highlighted recently by this

court in the context of recruitment to the post of police constable, where the complaint was that the weather conditions for the 5 km run were not

conducive, on account of rain, resulting in the candidates’ inability to complete the PET successfully. A Division Bench of this court, held in

Shravan Kumar Choudhary vs. The State of Rajasthan & Ors. (D.B. Spl. Appl. Writ No. 154/2019 Decided On: 22.05.2019) as follows:

“7. Quite apart from the ground on which the learned Single Judge dismissed the writ petition, i.e. delay, this Court is not inclined to interfere with

the selection process or the impugned order. When a complaint such as the present one with respect to less than ideal conditions or poor conditions in

which candidates are made to perform take up PET is confronted by the Court, it needs to carefully analyse the facts since intervention in judicial

review has larger repercussions which affect non-parties.

The state has placed material on record to suggest that whatever be the circumstances, rain moisture or ideal track conditions, of the total number

of candidates who participated on the basis of prevailing conditions, 45.42 qualified. The additional affidavit (concededly which is not part of the

present appeal record as it is a part of the record in D.B. Civil Appeal No. 228/19) shows that the variation between the days like the one when the

appellant was made to participate and other days when there was no rain, was not so significant as to result in arbitrariness. The chart which is

produced alongwith the said additional affidavit shows that on an average on the best days - when weather conditions were normal, the number of

qualified candidates were in the range of 63-64%; the lowest in such range was about 25%. In between, there were days on which the conditions

were not ideal as in many venues it appeared to have rained. Having regard to all these factors, it cannot be said that the conditions under which the

present appellant was made to participate in the PET were so poor as to deny (10 of 11) [SAW-537/2019] him a level playing field. What is a matter

of record is that 579 candidates did participate of whom 263 were successful and did qualify. In these circumstances, unless the result shows an

extremely startling result where it can be discerned plainly that no candidate or a very insignificant number of candidates could qualify, the Courts

should be very circumspect in returning a finding of arbitrariness.

The judgment of the Allahabad High Court, in the opinion of the Court, is not applicable. It is primarily based on the reasoning that change in

weather conditions result in the change in the rules of the game i.e. introducing rules later after the commencement of the recruitment process. The

judgment of the Allahabad High Court, with respect, in the opinion of the court, does not correctly lay down the law.

One more consideration persuades this Court to decline relief. It is that out of the 579 who participates, some were successful and some were not.

Yet all of them did participate and accepted the conditions, as it were. Permitting the petitioner/appellant or any other candidate thereafter to take a

re-test by directing the State to hold a fresh PET would itself be an unfair procedure as it would not only allow a few candidates who approach the

Court to have a second shot or attempt, or a second innings as it were, but also create an unfair advantage inasmuch as the conditions would be

entirely different and perhaps favorable to the candidate. This would result in two yardsticks, being injected into (one whereby all others accept

participate and are assessed under poor conditions, and the second whereby those who approach the Court are given a second chance, resulting in

their competing in favorable conditions), in the same selection process, which is inherently untenable and contrary to Article 14 and cannot be

permitted.â€​

Even in the re-test (which was conducted with sufficient notice, in terms of the orders of the single judge) only a few (and not all) candidates

managed to clear the PET. Upholding the grant of a second opportunity of PET carried out in most favourable circumstances, to only a few, therefore

in the opinion of the court, was not justified. Granting relief also on the ground that there were vacancies which could be filled with the writ petitioners

or other candidates, in the opinion of the court would mean that the executive government’s choice of selecting from other candidates, who have

since become eligible, is completely curtailed; the pool from which selection can be resorted to might and would be wider; however, the impugned

order restricts it to the petitioners.

For the foregoing reasons the impugned orders of learned Single Judge are set aside. The appeals filed by the State have to be and are allowed.

All pending applications are also disposed of.