State of Rajasthan and Others vs Digambar Kumar and Others

All the leave applications to file Special Appeals are allowed.

We have heard learned counsel for the parties.

In this second round of litigation, challenging the selections held for appointment for initial constitution of service under the Rajasthan Rural Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 2008, (in short, "the Rules of 2008"), for the services to be rendered in the rural areas, the Advertisement No. 1/2012 dated 30.4.2012 for recruitment was the subject matter of challenge in SBCWP No. 5259/2009 "Anoop Indoria v. State of Rajasthan" and 24 other connected writ petitions, which was allowed by the learned Single Judge of this court setting aside the selections on the ground that the Selection Committee had not fixed any criteria for selections. A Division Bench of this court dismissed the D.B. Civil Special Appeal (Writ) No. 1018/2011 "Mahendra Upadhyaya v. State of Rajasthan" on 31.10.2011. A Special Leave Petition filed against the said judgment was also dismissed by the Hon''ble Supreme Court on 26.3.2012.

The process of selections was commenced afresh vide Advertisement No. 1/2012 dated 30.4.2012 in which 58 posts fallen vacant in the meantime were added, making the selections for 378 posts as against the earlier advertised 320 posts.

A total number of 2081 candidates applied for selections, in which 117 and thereafter 340 more candidates who had applied, were allowed to participate in the selections on the directions issued by the court. In addition 1% of Special Backward Class candidates were allowed to appear, increasing the number to 2431 candidates for 378 posts. The selections by Advertisement No. 1/2012 was challenged by way of filing 41 writ petitions, which have been allowed by the judgment dated 24.4.2014 rendered by the learned Single Judge in S.B. Civil Writ Petition No. 16163/2012 "Priyanka Sharma v. State of Rajasthan" as the leading case.

Learned Single Judge has, by the impugned order, not only interfered with the selection but has, after recording the finding that the fixation of 30 marks for interview was not justified in view of decision in Ashok Kumar Yadav and Others Vs. State of Haryana and Others, and P. Mohanan Pillai Vs. State of Kerala and Others, , laid down fresh criteria to be adopted in which the Single Judge reduced the marks of interview from 30 to 15 and increased the marks of Educational Qualification from 40 to 55 and thereafter laid down the criteria on his own perception for awarding marks for Educational Qualification namely 5 marks for Secondary Examination, 5 marks for Senior Secondary Examination, 25 marks for B.A.M.S. Degree, 10 marks for Post Graduation in any subject of Ayurved, 10 marks for Ph.D., while maintaining 30 marks for Experience.

The State Government has challenged the judgment of the Single Judge on the ground that earlier the selections were set aside on the ground that there was no criteria fixed for selection, after which not only the criteria was fixed for selection, it was also placed before the court and in which it was asserted that 30 marks for interview were allocated on the basis of ''knowledge of subject'', ''presentation and personality'' and ''knowledge of current affairs'', each containing ten marks.

It is submitted that the Division Bench of this court at Principal Seat, Jodhpur has dismissed a batch of Special Appeals with D.B. Civil Special Appeal No. 1324/2014 "State of Rajasthan v. Dr. Deepika Sharma" as a leading case and other connected matters, upholding the judgment of the learned Single Judge dated 7.5.2014 in respect of the same selection under the Rules of 2008 vide Advertisement No. 1/2012 dated 30.4.2012. The Division Bench has dismissed the Special Appeals with the following findings:

"It is not in dispute that the process of selection in question is for appointment to the post of Ayurvedic Chikitsak by way of direct recruitment. The appellants though may be filling-in the vacancies of earlier years, but against these vacancies no aspirant can claim his right to be considered for appointment on basis of the date of occurrence of vacancies. While making appointments by way of direct recruitment the prime criteria for employer is to have best working hands available on the date of initiating the process of selection. In the cases in hand the selection initiated under the advertisement No. 1/2008 was set aside by the Court and the fresh process of selection commenced in the year 2012 vide advertisement No. 1/12. The restriction imposed by the appellants to confine competition among the persons having eligibility upto 15.9.2008 would deprive a public service to have best available hands in service through a fair competition. The concept of right for appointment on basis of the date of occurrence of the vacancies is a valid criteria while making appointments by way of promotion but not through direct recruitment. A public service is always supposed to have meritorious hands and to satisfy this object, consideration of the persons eligible on basis of their merit on the date of initiation of selection is a well settled criteria.

For the reasons given above we are of the view that learned single Bench did not commit any wrong while setting aside the restriction imposed. The appeals, thus, are bereft of merit, hence dismissed."

It is submitted by the learned Additional Advocate General that after the selections were advertised in the year 2008 vide Advertisement No. 1/2008 dated 21.7.2008, 250 posts were advertised for selection by way of direct recruitment in the year 2009 under Chapter-V of the Rules of 2008, and in which, most of the petitioners, who are respondents in the Special Appeals, had appeared in the selection. Apart from the selections held for 250 posts for which appointments were also made in the year 2013 under the Rules of 2008, the selections were also advertised by the Rajasthan Public Service Commission for 319 vacancies in the year 2012 under the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 1973 (in short "the Rules of 1973"). The respondents, therefore, got three opportunities for selections. Firstly, they had the opportunity to apply and to participate in the selection for initial recruitment under the Rules of 2008, which was the subject matter of challenge before the learned Single Judge and in which, 294 vacancies were filled-up by those candidates, who were working on contract, and in addition, 84 candidates were selected from the open market. The respondent-petitioners, therefore, got two chances for selection viz; under the Rules of 2008, in the selections, advertised in the year 2008, which were re-advertised in the year 2012, and the selections advertised by the RPSC in the year 2009 under the Rules of 1973, in which 250 candidates were appointed in the year 2013, and thereafter a third chance in the State service on 319 posts advertised by the RPSC in the year 2012.

It is submitted by the learned Addl. Advocate General that learned Single Judge has erred in law in holding that the criteria for selection was arbitrary and unfair. This Court did not consider the difference between the actual bias and likely bias on the criteria adopted by the Selection Committee. No allegations were made nor any findings were recorded with regard to the actual bias, which the respondent-petitioners may have suffered in the selections. The entire judgment is based upon the perception of the learned Single Judge in which he relied on Ashok Kumar Yadav''s case (supra) in which recommendation was made by the Hon''ble Supreme Court for fixing not more than 12.5% marks for interview. It is submitted that in Ashok Kumar Yadav''s case (supra), the interview marks fixed at 30 out of 100 were held to be higher in the facts in which written examination was also held. In the present case, no written examination was required under the Rules of 2008 for initial constitution of service under Rule 5 for which the rules of selection have been made under Part IV of the Rules of 2008. The service was to be initially constituted from the options received from those, who were regularly selected and working under the Rules of 1973 and those who were working on contract in the State in the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy services, and the selections to be held by a Selection Committee under Chapter-IV, including those who were serving on contract in the Department.

Reliance has been placed on the judgment of the Hon''ble Supreme Court in Siya Ram Vs. Union of India (UOI) and Others, , and Banking Service Recruitment Board, Madras Vs. V. Ramalingam and Others, in which the Supreme Court held that the High Court cannot substitute its own method of selection for the method, which was adopted by the organizations, entrusted with the task of selection.

Learned counsel for the respondents had submitted that an arbitrary process was adopted by the department to accommodate only those, who were working on contract. 294 persons out of 378 selected were those who were working on contract by way of initial constitution of service for which advertisement was made in the year 2008. A very high percentage of marks were provided to be awarded in the readvertised selections after the court set aside the earlier selections, and in which by providing for 30 marks for experience, another 30 marks for interview, an attempt was made to induct almost all those persons, who were working on contract. Learned Single Judge did not commit any illegality in setting aside the selections and providing for fair and reasonable criteria for holding fresh selections.

We have considered the submissions and perused the Rules of 2008 for recruitment.

The Rules of 2008 were made to constitute a service for the Rajasthan Rural Ayurvedic, Unani, Homeopathy and Naturopathy Service for serving in the rural areas. The Rules of 2008 provide for Cadre in Part-II in which the composition and strength of the service was to include the nature of post in Column 2 of the Schedule. The strength of posts was to be determined by the Government from time to time. Rule 5 provides for initial constitution of service. Part-III of the Rules of 2008 provides for initial recruitment in accordance with Part-IV and by direct recruitment in accordance with Part -V. The "initial recruitment" is defined under Rule 2(g) of the Rules of 2008 as follows:

"2. Definitions.--In these rules, unless the context otherwise requires,--

(g) "Initial recruitment" means first recruitment for initial constitution of the service made in accordance with Part IV of these rules."

Rule 5 of the Rules of 2008 provides for initial constitution of service by way of two channels viz; (a) the persons who were regularly recruited to the post of Ayurved/Unani/Homeopathy Chikitsak under the Rules of 1973 and opt for the service within three months after the commencement of the Rules of 2008 and (b) the persons recruited to the service in accordance with the provisions of the Rules of 2008. Part-IV of the Rules of 2008 provides procedure for initial recruitment, whereas Part-V provides for direct recruitment.

It appears that the State Government was keen to constitute the rural service expeditiously and, thus, it provided for the options to be invited from the Medical Officers appointed under the Rules of 1973, for rural service. It also provided for initial recruitment as a mode of selection to constitute the service.

In the first round of litigation, the procedure for selection for initial recruitment under Chapter IV of the Rules of 2008 was challenged on the ground that the Selection Committee, chaired by the Principal Secretary to the Government in the Ayurved Department, did not provide for any criteria for selection. The entire procedure for recruitment was vague and thus, there was likelihood of arbitrariness in selections. The argument was accepted by this court in which the selections were set aside with the direction to provide for the criteria of selections. The judgment was upheld by the Division Bench and thereafter by the Hon''ble Supreme Court. The Selection Committee thereafter laid down the criteria for selections and in the second round of litigation, the criteria of award of marks for selection was placed before the court.

Learned Single Judge under Article 226 of the Constitution of India could have examined the allegations of arbitrariness or unreasonableness in the selections on the criteria fixed by the Selection Committee. If this court did not agree with the criteria, it could have set aside the selections. It was however not open to the Court, without examining the criteria and result on the applicability of such criteria in the selections to lay down its own criteria on its own perception, and to direct fresh selections to be held on such criteria.

We have examined the criteria fixed for selection for initial recruitment for constitution of service under Rule 20 to Rule 26 in Part-IV of the Rules of 2008 providing procedure for initial recruitment permitting the Selection Committee chaired by Principal Secretary of the Department to hold selections, and which necessarily requires the Selection Committee to fix a criteria, which was so fixed in the second round of selections and placed before the Court. The rules were not challenged by the petitioners in the writ petitions. They had only challenged the criteria on the basis of the decision of the Hon''ble Supreme Court in Ashok Kumar Yadav''s case (supra).

In Ashok Kumar Yadav''s case (supra), the Supreme Court was concerned with the fixation of marks for interview when the selection was based both on the written examination and the marks awarded in the interview in order to adjudge the suitability of a candidate. The award of high percentage of marks was interfered with and was held to be arbitrary. In the present case, no written examination was proposed, as the initial recruitment to the service was to be made either by the optees who the regular employees working under the Rules of 1973 or by the persons, who were working on contract. In order to give a chance to all the persons, who were eligible on the date of advertisement, the selections were also made open for the eligible candidates. The criteria however remained the same, inasmuch as 40 marks were awarded to the candidates for educational qualification, 30 for experience and 30 for interview for which a reasonable criteria was fixed for award of marks. The post graduate qualifications were not the essential educational qualifications under the Rules of 2008, nor the qualifications of Secondary or Higher Secondary were relevant when posts of Medical Officers were advertised for selections.

In Siya Ram Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court held that the weight to be given to interview test should depend upon the requirement of service to which recruitment is made and observed thus:

"It is not for this court to suggest as to what marks should be allocated for interview in a case like the present one."

The Supreme Court further observed in para 10 and 11 as follows:

"10. This Court held that the selection for the post of Munsifs was valid and could not be struck down. It said that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public service. It said that in that in the case of service to which recruitment had necessarily to be made from persons of mature personality, interview test may be the only way and subject to basic and essential academic and professional requirements being satisfied and that subjecting such persons to written test might yield unfruitful and negative results. There cannot be any rule of thumb regarding the precise weight to be given and that it must very from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. The Court said that it was a matter for determination by experts and also a matter for research and that it was not for the Court to pronounce upon it unless exaggerated weight had been given with proven or obvious oblique motives.

It is not necessary for us to multiply various decisions rendered by this Court on the question as to how many marks should be allocated for viva-voce test in respect of recruitment to any particular public service."

The opinion in Siya Rams'' case (supra) has been followed in Diploma Engineers Sangh Vs. State of U.P. and Others, .

As discussed above, the petitioners in the writ petitions neither challenged the validity of the rules nor made out any case for actual bias, inasmuch as they never requested for producing the marks, awarded to the candidates in the interview nor did they challenge the criteria adopted by the Selection Committee for awarding of marks. A general challenge was made, which was accepted by the court after which the court itself embarked upon the exercise of fixing the criteria, which is not permissible in law.

We may observe that the main challenge to the Advertisement No. 1/2012 was to the cut off date on which a person should hold the qualification for selection. A Division Bench of this court has already held that the selections could not have been confined to only those, who were eligible on the date of Advertisement No. 1/2008 on 21.7.2008, when the selections were advertised afresh by Advertisement No. 1/2012 dated 30.4.2012.

We may observe here that as against 309 persons working on contract, only 294 were selected and that 84 candidates from open market were also selected in the initial recruitment, after which the RPSC advertised 250 vacancies for selection under the Rules of 2008. The petitioners, therefore, availed more than one opportunity to get selected in the selections. Their assertion, therefore, that the arbitrary process was adopted to induct those persons, who were on contract depriving them a chance for selection, was not correct.

The appointment of 378 candidates in pursuance of the Advertisement No. 1/2012 was protected by the court under the interim orders under which they are still working.

For the aforesaid reasons, all the Special Appeals are allowed; the writ petitions are dismissed; and the impugned judgment is set aside. The select list will be declared by the Selection Committee without any further delay.

A copy of this judgment be placed in all the Special Appeals.