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STATE OF RAJASTHAN THROUGH ITS DIRECTOR GENERAL OF POLICE, RAJASTHAN, JAIPUR & ANOTHER V/S KEDAR, decided on Friday, December 9, 2016.
[ In the High Court of Rajasthan Jaipur Bench, Special Appeal Writ No. 733 of 2013. ] 09/12/2016
Judge(s) : NAVIN SINHA & VIJAY KUMAR VYAS
Advocate(s) : Inderjeet Singh, AAG. Ashok Bansal.
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    Vijay Kumar Vyas J.1. The present appeal arises from order dated 4.3.2013 allowing S.B. Civil Writ Petition No.13124/2012 holding that the Respondent be deemed to have secured the qualifying marks at the interview for the post of Constable and consider his candidature for appointment subject to fulfilment of other conditions of eligibility.2. Learned Counsel for the Appellant submits that an advertisement was published on 18.2.2003 for appointments on the post of Constable. The recruitment was to be done under the Rajasthan Police Subordinate Service Rules 1989 (hereinafter referred to as 'the Rules'). The Rules have been framed in exercise of powers under Article 309 of the Constitution and therefore are statutory in nature. Rule 23 provides that the Board/Commission shall not recommend a candidate who secures less than 36% in the interview. The Respondent who belongs to the OBC Category secured 30%. He was therefore not recommended for appointment. The interviews were held on 27.06.2003. The select list published in the year 2003 was challenged by another in S.B. Civil Writ Petition No.4114/2003 (Dalchand Sain v. State of Rajasthan). By order dated 3.12.2008 it was held that the petitioner therein who also belonged to the OBC category and had secured more marks than that of the last candidate in the general category was entitled to be considered in accordance with law. The Respondent then became wiser and six years later from the date of the select list filed S.B. Civil Writ Petition No.2086/2009. It was disposed on 9.3.2009 in terms of Dal Chand Sain (supra). After consideration of his candidature rejection was communicated on 24.10.2011 informing that he had not secured the qualifying marks of 30% in the interview and therefore he was not eligible to be considered. S.B. Civil Contempt Petition No.179/2010 was disposed on 8.5.2012 with liberty to challenge the order if aggrieved. This led to the institution of S.B. Civil Writ Petition No.9097/2012 disposed on 30.07.2012 seeking relief to represent before the authorities. The representation dated 1.8.2012 did not refer to the ground of rejection dated 24.10.2011. Rejecting the representation reference was made to the requirement under Rule 23. The Appellant challenged the same again leading to the order under appeal. Reliance was placed on (2013) 12 SCC 600 (Jammu and Kashmir Institute of Management Public Administration and Rural Development v. Renu Bala) in support of the submission that no direction could have been issued to consider his candidature contrary to the Rules.3. The Learned Single Judge erred in relying upon a circular dated 3.4.2008 which was subsequent in point of time to the advertisement and failed to notice the fact that an execution instruction could not override Rule 23. The conclusion that under the circular dated 3.4.2008 a candidate who knew Hindi written in Devnagari script and had knowledge of Rajasthani culture was entitled to be given pass marks at the interview was erroneous. Reliance on S.B. Civil Writ Petition No.670/2009 (Vijay Kumari v. State of Rajasthan) was misplaced as it also did not consider the issue whether a circular subsequent to the advertisement could regulate the same and if it would override the statutory rule.4. The Respondent then instituted S.B. Civil Contempt Petition No.724/2013 for enforcement of the order under appeal. On 02.07.2014 the Court directed compliance within ten days. Appointment was provided to him on 12.07.2014 during the pendency of the appeal. It does not render the appeal infructuous but renders the appointment subject to the outcome of the appeal. The order therefore calls for interference.5. Learned Counsel for the Respondent submitted that this is the fifth round of litigation for a person seeking appointment on the lowly post of a Constable which alone reflects his misery. The State Government has issued the Circular dated 03.04.2008 after application of mind for reasons germane and relevant for the post of Constable. It was not an arbitrary circular and Rule 23 may be deemed to have been waived to that extent by the State Government for the limited purpose of appointment of Constables. It was not open for the State which issued the Circular to contend that it had no applicability. Reliance was placed on Vijay Kumari (supra) to submit that the matter has already been decided and which has attained finality. S.B. Civil Writ Petition No.7693/2008 (Rajwanti v. State of Rajasthan) dated 18.11.2008 declining relief had been distinguished holding that the attention of the Court was not invited to the Circular dated 3.4.2008.6. It was lastly submitted that the petitioner has been working since appointment in July 2014. More than two years have gone by. He has also been confirmed on the post of Constable. Presuming that his life had now settled down with a secure job he moved ahead in life and has married also taking on the responsibility of another. If he were to loose his job at this juncture it would invite severe consequences socially economically and psychologically not only for him but for the family. A lenient and sympathetic view may be taken and the appointment may not be interfered.7. We have considered the submissions on behalf of the parties and apply our mind to all aspects of the matter.8. The appointment to the post of Constable is regulated by statutory rules framed under Article 309 of the Constitution. They are statutory in nature. It specifically provides that a candidate including OBC to which petitioner belongs must secure 36% in the interview as qualifying marks. We are not concerned with the proviso dealing with Scheduled Castes and Scheduled Tribes. The Respondent indisputably secured 30% only. The select list was prepared in 2003 itself. The Respondent did not raise any grievance.9. After the disposal of S.B. Civil Writ Petition No.4114/2003 on 3.12.2008 filed by another questioning the select list the Respondent suddenly became wiser and instituted S.B. Civil Writ Petition No.2086/2009. The order in the former was not in rem but in personam. It did not relate to securing qualifying marks at the interview under Rule 23. It appears that the controversy with regard to the Respondent was not brought to the fore before the Learned Single Judge for whatever the reason may be and it was simply disposed in terms of Dalchand Sain (supra).10. Those who come to Court in time and those who do not acting as fence sitters waiting and watching the outcome of litigation by others and then seek to become wiser to pursue their claims form separate class. The Respondent instituted the first writ petition immediately after the order in the writ petition. The claim of the Respondent was not even based on parity. Relief even on that ground can be denied to fence sitters. Be that as it may he managed to open a door for himself to initiate his endeavour for appointment.11. After the order dated 09.03.2009 directing consideration of his candidature he pursued it in a contempt application culminating in the order dated 24.10.2011 informing that he had failed to secure qualifying marks in the interview under Rule 23. The fact that he may have had higher marks than any other candidate last appointed from the general category becomes irrelevant. There was no challenge to the Rules. The Respondent then again preferred S.B. Civil Writ Petition No.9097/2012. Despite being sanguine that his claim was covered by the decision of Vijay Kumari (supra) he opted to pursue matters in a representation rather than to obtain a definite order for consideration of his candidature in terms of the same. The inescapable conclusion is that he was aware that his claim rested on slippery ground. The observations in (2008) 10 SCC 115 (C.Jacob v. Director of Geology and Mining) are considered relevant observing as follows : -9. The courts/tribunals proceed on the assumption that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted the ex-employee gets a relief which he would not have got on account of the long delay all by reason of the direction to `consider'. If the representation is considered and rejected the ex-employee files an application/writ petition not with reference to the original cause of action of 1982 but by treating the rejection of the representation given in 2000 as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation and proceed to examine the claim on merits and grant relief. In this manner the bar of limitation or the laches gets obliterated or ignored.12. Representing against the order dated 24.10.2011 the Respondent did not refer to the ground mentioned in the same which was however again rejected in view of Rule 23. The writ petition then came to be filed again from which the present appeal arises.13. It is apparent from the sequence of facts that S.B. Civil Writ Petition No.2086/2009 filed by the Respondent was itself highly belated by six years and furnished him no cause of action a factor which does not appear to have been brought to the attention of the Court sufficiently. Furthermore that an executive instruction on 3.4.2008 could not regulate an advertisement of the year 2003 much less could the circular override a statutory rule was not considered in Vijay Kumari (supra) and therefore it has to be held to be per incuriam.14. If the Respondent failed to secure qualifying marks in the interview it becomes irrelevant that he may have had higher marks than the last candidate appointed from the general category.15. That brings us to the last question with regard to the submission based on sympathy and factors in support of the same. The jurisdiction under Article 226 is not unfettered and the discretion is regulated by law. If the power under this Article were to be treated as a path with unlimited boundaries of discretion that itself may result in arbitrariness and orders in violation of Article 14 of the Constitution. Justice has to be delivered in accordance with law. What the term justice would mean in the facts of a particular case will be dependent on the interpretation of the law that follows. What may be justice for one may be perceived as injustice by another. But if the interpretation of the law leads to that conclusion only it will have to be followed. Sympathy can never be a ground for granting relief contrary to the law. The observations in (2013) 12 SCC 582 (Union of India v. G.R. Rama Krishna) are considered relevant observing as follows :-9.............In such circumstances only out of sympathy the High Court could not have given the impugned direction. This judicial sympathy resulting into a right in favour of respondent to appoint him contrary to the recruitment rules framed under proviso to Article 309 of the Constitution of India which are statutory in nature is clearly misplaced and needs to be denounced. Such a direction is clearly unsustainable and is accordingly set aside.16. The submission on behalf of the Respondent for grant of relief based on sympathy would amount to rendering individualised justice which itself would not be in accordance with law and violative of Article 14 of the Constitution reflecting injustice to another. In (2012) 4 SCC 379 (Jai Prakash Singh v. State of Bihar) it was observed as follows :-22..........The court may not exercise its discretion in derogation of established principles of law rather it has to be in strict adherence to them. Discretion has to be guided by law duly governed by rule and cannot be arbitrary fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence....17. The appointment granted to the Respondent in the shadow of the contempt proceedings in light of an order dated 2.7.2014 for compliance cannot and does not render the appeal infructuous. The appointment was naturally subject to the outcome of the appeal and was made under the shadow of the contempt proceedings looming over the Appellant.18. The order under appeal is set aside and the appeal is allowed.