IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB [PRECEDENT] & ors 13.2.2013 HON'BLE MR. JUSTICE [ENTITY] Mr [ENTITY] - for petitioner Mr [ENTITY], Sr Adv with Mr [ENTITY] Mr [ENTITY] Mr [ENTITY] for respondents BY THE COURT:
REPORTABLE This writ petition pertains to selection to the post of Conductor in the Rajasthan State Road Transport Corporation.
Petitioner is one who was called for written test followed by trade test. He secured 71 and 33 marks respectively. He is denied appointment as cut off marks for general category stood at 108 marks.
This writ petition has been filed to challenge upper age limit of 33 years for the post of Conductor ignoring past experience of petitioner. Further challenge is to the marks of trade test. The trade test was consists of 50 marks, out of which, 30 marks for driving skills and 20 marks for other part of trade test. This court in the bunch of writ petitions led by SB Civil Writ Petition No. 13855/2011 [ENTITY] Versus RSRTC & anr decided on 9.11.2011, held that condition to obtain driving licence for the post of Conductor was not held to be legal in the case of [ENTITY] & ors versus RSRTC & ors, [CASE NUMBER] vide order dated 2.9.2011 thus whatever marks have been obtained by the candidate out of 30 marks be made two and half times. Petitioner was not extended benefit of the said direction thus prejudice has been caused to the petitioner. Respondents should treat petitioner within age limit and by re-valuation of marks of trade test on the formula given in the case of [ENTITY] (supra), the marks of the petitioner may be declared and if he secures 108 or more marks, then he may be given appointment.
Learned counsel for respondents, on the other hand, submit that petitioner was allowed to appear in the written as well as trade test though petitioner was not even qualified to hold the post looking to the age being more than 33 years. In any case, he failed to secure marks equivalent or more than the cut off which is 108 marks for general/ open category, whereas, petitioner secured only 104 marks. In view of above, petitioner is not entitled to the appointment.
So far as judgment in the case of [ENTITY] (supra) is concerned, it was given with the consent of the Corporation thus not propounded a ratio in regard to marks of trade test. In view of above and looking to consent given, it cannot be applied to this case.
So far as present case is concerned, petitioner is one who is in possession of Driving licence apart from Conductor's licence. He accordingly participated in both the events of trade test which is divided for 30 and 20 marks making it total 50 marks. 30 marks are for driving skills. Petitioner could secure marks therein and his total marks in the trade test came to be 33 out of 50 thus he qualified the trade test, his total marks remained less than the cut off thus could not be given appointment.
It is further stated that judgment in the case of [ENTITY] (supra) is applicable only to those who were not possessing driving licence thus could not secure marks out of 30 meant for it. Petitioner has taken aforesaid judgment with its application in general whereas it was given in the circumstances and after taking note that the candidates not in possession of driving licence could not secure in the trade test. Thus, looking to the aforesaid, a just formula was evolved to redress the grievance of those not in possession of driving licence while competing for the post of Conductor. The judgment aforesaid has no application to the petitioner.
I have considered rival submissions of learned counsel for the parties and perused the record.
Two issues have been raised for my consideration, out of which, one is regarding age and another regarding application of the judgment in the case of [ENTITY] (supra).
So far as issue of age is concerned, that is not required to be discussed as petitioner to participate in the selection without declaring him to be ineligible.
So far as second issue is concerned, it is in reference to the judgment of this court in the case of [ENTITY] (supra). Therein, a direction was given to revise marks of trade test. It was taking note of the fact that selection was divided in two parts; first was written test and if one qualifies and secure required cut off marks in the written test than to appear for trade test. The trade test was meant for 50 marks, out of which, 30 marks was for driving skills and 20 marks for remaining skills. The bunch of writ petitions were filed by those who were not allowed to participate in trade test for want of driving licence thus interim orders were passed. The candidates were allowed to appear in trade test but for want of driving licence and skills of driving, they could not secure at all or could not secure well in driving skills. The issue was elaborately discussed considering legality of requirement to possess driving licence for the post of Conductor. The judgment was rendered in favour of the petitioners therein. To redress the grievance of those who were not in possession of driving licence and challenged the conditions, it was agreed by the Corporation for ignoring 30 marks of driving skills for a candidate not in possession of driving licence and to assess by making remaining 20 marks by two and half times and declare the result accordingly.
In view of above, judgment in the case of [ENTITY] was applicable to those who were not in possession of driving licence and not for those who were in possession of driving licence and even appeared for their driving skills without protest and secured marks out of 30. In the present case, petitioner is in possession of driving licence and secured well in trade test thus he cannot equate his case with them who were not having driving licence and challenged the conditions at the relevant stage itself. The petitioner, no doubt, preferred writ petition in the year 2010 but he did not challenge the condition to possess driving licence for the post of Cponductor or any relief as a consequence thereof. If the prayer of un-amended writ petition is looked into, it is in reference to one issue regarding age. The writ petition was amended subsequent to the judgment in the case of [ENTITY] i.e. in the month of February, 2012. In view of above, petitioner did not challenge condition to possess driving licence or procedure for trade test before declaration of result. It was challenged by amendment in the writ petition after declaration of result. A candidate is estopped to challenge process of selection after declaration of result and remaining unsuccessful in view of the judgments of the Hon'ble Supreme Court in the case of [ENTITY] & ors versus State of Uttaranchal & ors, reported as (2008) 4 SCC 171 and [PRECEDENT].
The issue raised herein was otherwise considered in bunch of writ petitions led by [ENTITY] versus Rajasthan State Road Transport Corporation & ors, [CASE NUMBER], decided on 30.7.2012. Therein, considering the second issue, it was clarified as to why judgment in the case of [ENTITY] (supra) to revise the marks of trade test would not be applicable in general. It was brought to the notice of the court that marks are revised even for those who were in possession of driving licence though the judgment in the case of [ENTITY] was limited to those who were not in possession of driving licence. This court clarified that if Corporation has revised the marks even of those candidates in possession of driving licence and even for those who did not obtain approach this court on or before 9.11.2011 in following terms -
I have considered the submissions of learned counsel for parties and find that judgment in the case of [ENTITY] (supra) was more or less on agreed terms. As per the judgment in the case of [ENTITY] (supra), revised marks in the trade test was to be applied. The issue aforesaid was considered in the light of the condition to possess driving licence for the post of Conductor and it was only for those who were not in possession of driving licence. The challenge to the condition was thus not made by those who were having driving licence while applying for the post of Conductor. To clarify the aforesaid, the revised criteria for trade test was applicable only on those who approached this court on or before 9.11.2011 i.e. the date of judgment in the case of [ENTITY] (supra) or in the earlier judgment in the case of [ENTITY] (supra). The judgment aforesaid is not applicable to those who were in possession of driving licence so as Conductor's licence while applying for the post of Conductor and failed to challenge it before appointment. If the Corporation has revised the marks of trade test even for those candidates who were in possession of driving licence and not earlier challenged the condition to possess driving licence while applying for the post of Conductor, are not to be governed by the directions in the case of [ENTITY] (supra). It is for the reason that immediately after the judgment in the case of [ENTITY] (supra), appointments were given thus whoever failed to approach this court before appointment cannot be governed by the earlier judgment due to delay and consent of the Corporation is limited to those earlier petitions. Accordingly, if the Corporation has revised the marks of the trade test for those who are in possession of driving licence while applying for the post of Conductor or for those who had not approached this court on or before 9.11.2011 and denied benefit of revised marks to the petitioners then their action becomes discriminatory in nature. Accordingly, they are directed either to withdraw benefit of revised marks in the trade test for those who were not before the court on or before 9.11.2011 and otherwise the condition was not challenged as candidates were in possession of driving licence. If the appointments are cancelled in those cases, it should be by applying principles of natural justice. In case, respondent Corporation takes a decision to continue them, then all the petitioners would be eligible for revised cut off marks in the trade test, who applied for the post of Conductor and if find more marks than of candidates appointed, would also be eligible for appointment. The limited application of earlier judgment with cut off date in the case of [ENTITY] (supra) can be in view of judgment of the Apex Court in the case of [ENTITY] versus State of Rajasthan & ors, reported as (2002) 6 SCC 562. Therein also, petitions filed after the earlier and main judgment were not entertained.
In view of above directions, nothing remains. It may however be elaborated that it is not that cut off date of the judgment was material to limit the litigation and to finalise appointments but the fact further remains that a candidate did not challenge the condition of possession of driving licence till conclusion of trade test and result thereof, was estopped to challenge or seek consequential benefits of a challenge of condition in the hands of those who preferred writ petitions in time.
The principle of estoppal applies on the petitioner and on other similarly situated candidates. Relevant paras 7 to 10 of the judgment of the Supreme Court in the case of [ENTITY] (supra) are reproduced hereasunder for the aforesaid purpose -
7.It is not disputed that the respondents- writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8.In [PRECEDENT], this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.
9.In the present case, as already pointed out, the respondents-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10.In a recent judgment in the case of [PRECEDENT] at p.516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
Ratio aforesaid has not been discussed in the case of [ENTITY] (supra) but looking to the specific argument, principle of estoppel has been applied in this writ petition because amendment in the writ petition was made in the month of February, 2012 after declaration of result and till then challenge in regard to driving licence or trade test was not made.
In the case of [ENTITY] (supra) even the Apex Court kept limited application of the judgment based on the date of judgment. Relevant part of the said judgment is also quoted hereunder -
46.Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court and to make appointments made on or after 18.11.1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct :
1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis a vis the candidates appointed on or after 18.11.1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18.11.1999.
2. The appointments made upto 17.11.1999 need not be reopened and re-considered in the light of the law laid down in this judgment.
3. [CASE NUMBER] filed in this Court under [SECTION] is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under [SECTION] at an earlier point of time.
In view of above, petitioner is not entitled to the benefit claimed herein based on the judgment in the case of [ENTITY]. It may be that even imposition of condition to possess driving licence was not valid as decided by this court in the case of [ENTITY] & ors versus RSRTC & ors, [CASE NUMBER] vide order dated 2.9.2011 thus who were in possession of requisite licence and did not contest the matter on that score are ousted to seek benefit, more so when they appeared in trade test without protest at any point of time.
In the case of [ENTITY] (supra) it has already been clarified that directions in the case of [ENTITY] (supra) should be applied without discrimination. If some one has been extended benefit of revised marks despite holding driving licence then formula of revised marks should be applied on all concerned but if Corporation takes a decision not to apply it on those holding driving licence and correct their mistake, if any, then judgment in the case of [ENTITY] (supra) would have limited application.
Looking to the aforesaid, this writ petition is disposed of with same directions as exist in the case of [ENTITY] (supra) in reference to issue No.2 raised and decided therein.
([ENTITY]), J.
[ENTITY] All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
([ENTITY]) PS-cum-J