1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : (1) D.B. Civil Writ Petition No.825/2010. (Sharwan Kumar Vs. RPSC & Others) (2) D.B. Civil Writ Petition No.11317/2009. (Devendra Singh Udawat Vs. State of Rajasthan & Ors.) (3) D.B. Civil Writ Petition No.10385/2009. (Hansraj & Anr. Vs. State of Rajasthan & Ors.) (4) D.B. Civil Writ Petition No.11318/2009. (Bhawani Singh Bhati Vs. State of Rajasthan & Ors.) (5) D.B. Civil Writ Petition No.2457/2010. (Ku. Himanshu Bhatia Vs. RPSC & Ors.) (6) D.B. Civil Writ Petition No.3069/2010. (Jaita Ram Vs. State of Rajasthan & Ors.) (7) D.B. Civil Writ Petition No.2823/2010. (Sumit Mittal Vs. RPSC & Ors.) (8) D.B. Civil Writ Petition No.10811/2009. (Ahsan Ahmed Vs. State of Rajasthan & Ors.) (9) D.B. Civil Writ Petition No.4094/2010. (Prem Ratan Ojha Vs. RPSC & Ors.) (10) D.B. Civil Writ Petition No.3401/2010. (Mahendra Pratap Bhati Vs. State of Rajasthan & Ors.) (11) D.B. Civil Writ Petition No.4539/2010. (Kalpesh Nikawat Vs. State of Rajasthan & Ors.) DATE OF ORDER : May 10, 2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Reportable Mr. Hanuman Singh Choudhary/Dr. P.S. Bhati/Mr. 2 Manoj Bhandari/Mr. Tribhuwan Gupta/Mr. B.L. Bhati/Mr. H.R. Rawal/Mr. R.K. Bhardwaj for the petitioners. Mr. J.P. Joshi for the RPSC. Mr. R.L. Jangid, Addl. Advocate General. Mr. Vineet Kumar Mathur for Raj. High Court. BY THE COURT (Per Hon'ble Mr. Vyas, J.) : In all the above writ petitions, common prayer has been made by the petitioners that action of the respondents in adopting scaling system for assessment in the Rajasthan Judicial Service Examination 2008 for recruitment to Rajasthan Judicial Service may be declared illegal and unconstitutional and the same may be quashed and set aside. Further, it is prayed that Rajasthan Public Service Commission may be directed to issue fresh merit list on the basis of raw marks obtained by the candidates without applying the formula of scaling. It is also prayed that all actions undertaken during the pendency of the writ petitions to the detriment of the petitioners may be declared illegal and be set aside and, in case appointments are issued to persons having marks lower than the actual raw marks secured by the petitioner under his category, then, the said appointments may be declared illegal and/or the petitioner may be adequately compensated by being declared selected for the consecutive appointments. In the alternative, it is prayed that the respondents may 3 be directed to conduct fresh examination in pursuance of notification Annex.-1. Since in all the above writ petitions common question is involved that whether scaling system adopted by the Rajasthan Public Service Commission for the purpose of selection for recruitment in the Rajasthan Judicial Service is illegal and unconstitutional, we are deciding all these writ petitions by this common judgment/order. For the purpose of adjudicating the controversy, we are taking into consideration the facts narrated in D.B. Civil Writ Petition No.825/2010, Sharwan Kumar Vs. R.P.S.C. & Others. According to brief facts of the case, an advertisement Annex.-1 was issued by the Rajasthan Public Service Commission, whereby, applications were invited from the Law Graduates for recruitment to the posts of Civil Judge (Junior Division) cum Judicial Magistrate in the cadre of Rajasthan Judicial Service. In pursuance of the said notification Annex.-1 dated 27.08.2008, along with other eligible candidates the petitioner also applied. Thereafter, written examination for RJS Examination 2008 was conducted on 7th and 8th February, 2009 in accordance with Rajasthan Judicial Service Rules, 1955 (hereinafter 4 referred to as “the Rules of 1955”). The petitioner along with other eligible candidates appeared at the said written examination and expected to get through in the written examination. But, surprisingly as per result of the written examination, the petitioner was not declared qualified for interview as cut-off marks for the General Category (Boys) based on scaled scores rather than the original raw marks obtained by the aspirants in the written examination. As per the petitioner, the result was to be declared only on the basis of raw marks because as per provisions of the Rules of 1955 framed in exercise of the powers conferred by Article 234, read with Article 238, and the proviso to Article 309 of the Constitution of India, complete procedure was prescribed for the selection and recruitment to the Rajasthan Judicial Service. As per learned counsel for the petitioner, according to Rule 19 of the Rules of 1955, there is provision that the Commission shall prepare a list of candidates recommended by them for direct recruitment in order of their proficiency as disclosed by their aggregate marks. It is further provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 45% marks in the 5 aggregate both written and oral examination and 35% marks in all the compulsory papers. Therefore, it is obvious that there is complete procedure provided and no other method is permissible for declaring a candidate successful in the written examination. But, the Commission has adopted “scaling system” which is not even provided in the Rules of 1955. The entire procedure of Recruitment for the Rajasthan Judicial Service has been provided under Part Vth of the Rules of 1955. In the writ petition, it is specifically stated by the petitioner that there is no provision in the Rules of 1955 for adopting scaling system to assess the suitability of the candidates appearing in the written examination; but, inspite of the fact that Hon'ble Supreme Court, in the case of Sanjay Singh Vs. Union Public Service Commission, reported in (2007) 3 SCC 720, disapproved the “scaling system” for recruitment in Judicial Service, the Rajasthan Public Service Commission has illegally and in contravention of the pronouncement in Sanjay Singh's case (supra) applied scaling system which is not permissible in law. It is also pointed out that in the case of Sarita Naushad Vs. Rajasthan Public Service Commission, the Division 6 Bench of this Court has already declared the “scaling system” as arbitrary and unconstitutional; but, again, for recruitment for the year 2008, the Rajasthan Public Service Commission has ignored the judgment of the Hon'ble apex Court in Sanjay Singh's case (supra) and judgment of the co-ordinate Division Bench of this Court in Sarita Naushad's case (supra) and has again applied the scaling system, therefore, the conduct of the Rajasthan Public Service Commission is totally arbitrary, unconstitutional and in contravention of the adjudication made by the Hon'ble Supreme Court. Therefore, the whole process which is undertaken shall be declared illegal and “scaling system” adopted by the Rajasthan Public Service Commission for the purpose of recruitment to the Rajasthan Judicial Service shall be declared illegal and the Commission may be directed to take into consideration only the raw (actual) marks obtained by the candidate in the written examination and shall proceed further for selection in accordance with the Rules of 1955. This writ petition was filed before this Court on 23.01.2010. Notices were issued by the co-ordinate Division Bench on 27.01.2010. On that date, learned counsel Shri J.P. Joshi, appearing on behalf of the 7 Rajasthan Public Service Commission, was directed to accept notices. Thereafter, reply was filed by the Rajasthan Public Service Commission. After hearing both the parties on 18.02.2010, while taking into consideration the settled legal position laid down by the Hon'ble Supreme Court in Sanjay Singh's case (supra) and Division Bench judgment of this Court in Sarita Naushad's case, following interim order was passed : “Heard learned counsel for the parties on the stay application. It is contended by learned counsel for the petitioner that this writ petition has been filed by the petitioner challenging the “scaling system” adopted by the Rajasthan Public Service Commission, upon which, result of the RJS Examination, 2008 has been declared. According to petitioner, no scaling system can be adopted by the Rajasthan Public Service Commission for declaring result of the RJS examination without consultation of the High Court in view of Rule 14 and 15 of the Rules of 1955. Upon this argument, a pointed query was made to counsel appearing on behalf of the High Court, Mr. V.K. Mathur whether any consultation was made by the Commission with the High Court for applying the scaling system in the RJS Examination 2008. It is stated at Bar by learned counsel for the High Court that no such consultation was made by the Rajasthan Public Service Commission for applying the scaling system in the competitive examination for recruitment to 8 the Rajasthan Judicial Service for 2008. Learned counsel for the Commission, Mr. J.P. Joshi submits that the matter with regard to applying the “scaling system” in the RJS Examination is subjudice in the Hon'ble Supreme Court because earlier Division Bench of this Court at the Jaipur Bench has held in respect of selection of the year 2005 that “scaling system” is violative of Articles 14 and 16 of the Constitution of India and passed certain direction against respondent R.P.S.C. Against the said judgment rendered by the Division Bench on 27.10.2009 in D.B. Civil Writ Petition No.3942/2007, Sarita Naushad Vs. RPSC & Others, and 17 other writ petitions, the Commission has filed petition for special leave to appeal (Civil) before the Hon'ble Supreme Court and the Hon'ble Supreme Court while issuing notice passed interim stay upon the directions contained in the impugned order as against the respondents, therefore, there is no question of granting stay upon the interviews, for which process is going on, on the basis of the result of the written examination declared by the Commission while adopting the scaling system for recruitment for the subsequent year 2008. Further, it is submitted by Mr. Joshi, learned counsel for the Rajasthan Public Service Commission, that Hon'ble Supreme Court has posted the special appeals filed by the Commission on 3rd March, 2010 for final disposal vide order dated 15.02.2010. Learned counsel for the petitioner, however, vehemently disputes this position. It is urged that the Hon'ble Supreme Court has not stayed the effect and operation of the judgment rendered by the Division Bench in Sarita Naushad's case (supra) which has been passed while following the judgment of the Supreme Court in Sanjay Singh's case ((2007) 3 SCC 720, Sanjay Singh & Another Vs. U.P. Public Service 9 Commission, Allahabad & Another), in which, Hon'ble Supreme Court has held that scaling system is violative of Articles 14 and 16 of the Constitution of India. Learned counsel for the petitioner submits that the Supreme Court has only stayed the directions contained in the said judgment passed by the Division Bench as against the Rajasthan Public Service Commission and there is no stay as such upon the adjudication made against the scaling system by the Division Bench. We have considered the submissions made by the respective parties and perused Rule 14 of the Rajasthan Judicial Service Rules, 1955, in which, it is specifically provided that a competitive examination for recruitment to the Rajasthan Judicial Service shall be held at such intervals as the Governor may, in consultation with the Court, from time to time, determine and shall be conducted by the Commission at such time and dates as it may notify. Further, under Rule 15, there is provision for syllabus, in which, it is provided that syllabus and rules relating to competitive examination shall be as in Schedule-III. Further, there is proviso, in which, it is provided that they may be amended by the Governor from time to time in consultation with the Commission and the Court; meaning thereby, in both, Rules 14 and 15 of the Rules of 1955, the legislature has specifically mentioned that consultation with the High Court in conducting the examination as well as for prescribing the syllabus is mandatory. Rules 14 and 15 of the Rules of 1955 read as under : “14.Examination.-A competitive examination for recruitment to the Service, shall be held at such intervals as the Governor may, in consultation with the Court, from time to time determine, and shall be conducted by the Commission at such time and at such dates as it may 10 notify. 15.Syllabus.-The syllabus and the rules relating to the competitive examination shall be as in Schedule-III: Provided that they may be amended by the Governor from time to time in consultation with the Commission and the Court.” In the case of Sarita Naushad (supra), the Division Bench of this Court at Jaipur Bench while following the adjudication made in Sanjay Singh's case passed the following order : “(60) Supreme Court in SLP (C) No.10539/2007 filed by Sarita Noushad and another SLP (C) No.10631/2007 while making the further appointments subject to the decision of the writ petitions, on 12.12.2008, requested this Court for early disposal of the writ petition at an early date but the writ petitions could not be disposed of for one reason or the other. As held above, the persons selected and appointed against the vacancies of the RJS Examination, 2005 have worked for one year and a half, therefore, we have not disturbed their appointments. But still, in the aforesaid facts and circumstances of the present writ petitions, the issue remains that most of the petitioners, who have approached the Court in time in 2007, either before interview or just after interview, have suffered on account of scaling which has already been declared illegal while answering Questions No.(i) to (iv) in the affirmative and the delay in disposal of the writ petitions may not be allowed to stand in their way for granting relief for all times to come and simply on the ground that the advertised vacancies have been filled up even after obtaining more raw marks plus interview marks and some of them have also been deprived of interview as per their raw marks and cut off 11 marks worked out on the basis of raw marks in the RJS Examination, 2005. In order to save the petitioners from injustice which has been caused on account of violation of RJS Rules, 1955 and violation of Articles 14 and 16 of the Constitution of India, as discussed in detail in the preceding paras, Question No.(v) is also answered in the manner that Sanjay Singh (supra) is fully applicable to the facts and circumstances of the present case. (61) The ends of justice can only be met out if the petitioners' cases are considered for future vacancies as the same relief has been granted by the Supreme Court in Sanjay Singh (supra). Therefore, the writ petitions succeed and the same are allowed as indicated below:- (i) RPSC is directed to prepare the list of the candidates of RJS Examination, 2005 as per Schedule-III of the RJS Rules, 1955, to be called for interview as per raw cut off marks for the purpose of ascertaining whether any of the petitioners was entitled to be called for interview in their respective categories. (ii) RPSC is further directed to prepare a list as per Schedule-III of the RJS Rules, 1955, of RJS Examination, 2005, of the petitioners who have obtained more raw marks plus interview marks than the selected and appointed candidates, in their respective categories. (iii) All the petitioners who were entitled for interview as per Schedule-III in the ratio of 1:3 in their respective category as per their raw marks considering the fact of cut off raw marks but have not been called for interview, as per Relief No.(i), be now called for interview along with the candidates to be interviewed for the examination of RJS 2008 and further, in case they obtain more raw 12 marks+interview marks than the candidates of the merit list of the RJS Examination, 2005 as per their raw marks + interview marks, then their cases may be considered for appointment against future vacancies and if found suitable, respondents may issue appropriate orders before finalising the selections and appointment pursuant to the RJS Examination, 2008. (iv) The petitioners who have been interviewed but could not be selected on account of scaling down their marks and scaling up the marks of the selected and appointed persons as referred in Relief No. (ii) and have further obtained more than 45 per cent raw marks+interview marks in the aggregate higher than persons already selected/appointed as per raw marks and interview marks of RJS Examination, 2005 be considered for appointment against future vacancies and in case they are found suitable, then, respondents may issue appropriate orders before finalising the selections and appointment of RJS Examination, 2008; (62) A copy of this order be placed on the files of all the connected cases.” In the above case of Sarita Naushad, selection process of RJS Examination 2005 was in question, therefore, aforesaid direction in para 61 (i) to 61 (v) were made by the Division Bench; but, in para 60, it has categorically been held that in order to save the petitioners from injustice which has been caused on account of violation of RJS Rules 1955 and Articles 14 and 16 of the Constitution of India, as discussed in the preceding para, question No.5 is also answered in the manner that Sanjay Singh's judgment is fully applicable on the facts and circumstances of the present case. The Hon'ble apex Court, in the 13 petition for special leave to appeal (Civil) filed by the Rajasthan Public Service Commission against judgment dated 27.10.2009, has passed order that there shall be interim stay of the directions contained in the impugned order as against the respondents; meaning thereby, the directions to the Rajasthan Public Service Commission, incorporated in para 61(i) to 61(iv) have been stayed. The order dated 18.12.2009 passed by the Hon'ble apex Court is quite unequivocal and specific which is as under : “Issue notice. Interim stay of the directions contained in the impugned order as against the respondents.” In this view of the matter, we are convinced by the argument of learned counsel for the petitioner that there is no stay operating upon the effect and operation of the judgment of the Division Bench of this Court rendered in Sarita Naushad's case, in which, the Division Bench held that scaling system is illegal and only interim stay upon the directions contained in the impugned judgment as against the respondents is granted. Therefore, the whole adjudication of the judgment has not been stayed by the Hon'ble Supreme Court and stay is operating as upon the directions against the Rajasthan Public Service Commission and not upon the adjudication made by the Division Bench while following the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh (supra); meaning thereby, as per the judgment of the Division Bench of this Court passed in Sarita Naushad's case, the Rajasthan Public Service Commission is not at liberty to again conduct the interviews on the basis of the result which is declared while applying the scaling system. 14 In this view of the matter, we deem it just and proper to direct the Rajasthan Public Service Commission not to declare the result of the interviews which is going on for recruitment in pursuance of the RJS Examination 2008 on the basis of the result of the written examination declared while applying the scaling system without consultation with the High Court. Ordered accordingly. The Rajasthan Public Service Commission is, therefore, directed not to declare the result of the RJS Examination 2008 till disposal of this writ petition.” Against above interim order dated 18.02.2010 passed by this Court, the Rajasthan Public Service Commission preferred Special Leave to Appeal petition No.(C)-6569/2010 before the Hon'ble Supreme Court, in which, on 25.02.2010, while the petition was mentioned, upon hearing counsel the Court made the following order : “List on 15.03.2010. There shall be interim stay of the impugned order till then.” It is brought to our notice that though in the SLP interim stay upon impugned order dated 18.02.2010 was passed and SLP was ordered to be listed on 15.03.2010, the RPSC without waiting for adjudication of the SLP declared the final result inspite of pendency of the SLP before the Hon'ble Supreme Court. Today, it is brought to our notice that Hon'ble apex Court has 15 passed an order on 05.05.2010 in number of special appeals filed against the judgment in Sarita Naushad's case, in which, the scaling system adopted by the RPSC was quashed for the selections of the year 2005 as well as against the interim order dated 18.02.2010 passed in this writ petition for selections of the year 2008, whereby, directions were issued in respect of candidates of RJS Examination 2005 for considering cases of six candidates namely, Sarita Naushad, Asutosh Kumawat, Rajant Khatri, Tosita Verma, Sarita Dhakad and Divya Singh on the basis of raw marks obtained by them only and, the RPSC withdrew the SLP No.(C)-6569/2010 filed against the interim order dated 18.02.2010. Therefore, Hon'ble apex Court observed that appointments in pursuance of this order of those candidates of 2005 Examination would take place after appointment of the candidates selected for 2008 but they will be entitled to get their seniority; meaning thereby no case with regard to selection of the year 2008 is pending before the Hon'ble Supreme Court and gist of the order dated 05.05.2010 for considering the case of Sarita Naushad and other five persons is that Hon'ble Supreme Court did not approve the scaling system. Order dated 05.05.2010 passed by the 16 Hon'ble Supreme Court reads as follows : “IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4235 OF 2010 [Arising out of SLP (C) No.2580 of 2010] R.P.S.C. ...APELLANT. VERSUS BALVEER SINGH JAT & ORS. ...RESPONDENTS. WITH CIVIL APPEAL NO.4236 OF 2010 (Arising out of SLP (C) No.2599/2010) CIVIL APPEAL NO.4237 OF 2010 (Arising out of SLP (C) No.2653/2010) CIVIL APPEAL NO.4238 OF 2010 (Arising out of SLP (C) No.2729/2010) CIVIL APPEAL NO.4239 OF 2010 (Arising out of SLP (C) No.2755/2010) CIVIL APPEAL NO.4240 OF 2010 (Arising out of SLP (C) No.2757/2010) CIVIL APPEAL NO.4241 OF 2010 (Arising out of SLP (C) No.2761/2010) CIVIL APPEAL NO.4242 OF 2010 (Arising out of SLP (C) No.2769/2010) CIVIL APPEAL NO.4243 OF 2010 (Arising out of SLP (C) No.2768/2010) CIVIL APPEAL NO.4244 OF 2010 (Arising out of SLP (C) No.2770/2010) CIVIL APPEAL NO.4245 OF 2010 (Arising out of SLP (C) No.2989/2010) CIVIL APPEAL NO.4246 OF 2010 (Arising out of SLP (C) No.3005/2010) CIVIL APPEAL NO.4247 OF 2010 (Arising out of SLP (C) No.3291/2010) CIVIL APPEAL NO.4248 OF 2010 17 (Arising out of SLP (C) No.3293/2010) CIVIL APPEAL NO.4249 OF 2010 (Arising out of SLP (C) No.3294/2010) CIVIL APPEAL NO.4250 OF 2010 (Arising out of SLP (C) No.3297/2010) CIVIL APPEAL NO.4251 OF 2010 (Arising out of SLP (C) No.3299/2010) CIVIL APPEAL NO.4252 OF 2010 (Arising out of SLP (C) No.33879/2010) AND SLP (C) No.6569/2010, W.P. (C) NO.102/2010, W.P. (C) NO.113/2010, W.P. (C) NO.114/2010, W.P. (C) NO.134/2010, W.P. (C) NO.142/2010, W.P. (C) NO.146/2010, and W.P. (C) NO.128/2010, O R D E R Leave granted. In 2005, Rajasthan Public Service Commission conducted test for the posts of Civil Judge (Junior Division) and 87 candidates were selected and they were appointed as Civil Judge (Junior Division) in 2007. The Rajasthan Public Service Commission had adopted a method of scaling for the purpose of assessment of answer sheets. Because of this, some of the candidates who had obtained less raw marks which were sealed up were called for interview and subsequently selected and appointed. Therefore series of writ petitions were filed before the High Court challenging the scaling method adopted by the Public Service Commission. The High Court by the impugned judgment has given certain directions and held that the fresh interviews of the candidates to be taken based on their raw marks obtained by them. As regards the candidates who have been already appointed by Rajasthan Public Service Commission, the High Court 18 held that their appointments shall not be disturbed. Now, pursuant to the directions of the High Court, it appears that 8 candidates who had already undergone interview secured more