Ashok Kumar Jain vs Rajasthan Public Service Commission Through its Chairman & Ors.

Ashok Kumar Jain ... Appellant

Vs.

Rajasthan Public Service Commission

Through its Chairman & Ors. ... Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2. The Rajasthan Public Service Commission, first respondent holds

examinations for direct recruitment to State and subordinate service posts

under the Rajasthan State and Subordinate Services (Direct Recruitment by

Combined Competitive Examinations) Rules 1962 (`Rules' for short).

Appellant appeared as an `open market candidate' in the 1983 examination

and was selected to Rajasthan Tehsildar Services (Subordinate service) and

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was appointed as a Naib Tehsildar, a non-gazetted post on 15.10.1985. The

appellant also appeared in the combined competitive examination held in

1987 and 1989 as an open market candidate. The examination for the year

1990 was held in two stages on 25.11.1990 and 22.2.1992. The appellant

appeared in the said examination as an open market candidate and was

unsuccessful.

3. The appellant again applied for the combined competitive

examination for the year 1991, advertised on 19.10.1991. The appellant was

provisionally allowed to appear in the said examination. On scrutiny of his

application it was found that appellant had already availed four chances as

an open market candidate in the examinations relating to the years 1983,

1987, 1989 and 1990 and he was not therefore entitled to appear for the fifth

time, as the maximum number of chances for a candidate under the Rules

was four. He could not also be considered as a candidate in the examination

for the year 1991 under the Non-Gazetted Employees quota (for short `NGE

quota'), as appellant was working as a Tehsildar, a Gazetted post, from

December 1990. Therefore a notice dated 25.6.1993 was issued calling upon

him to show cause why his application should not be rejected on the ground

that he was not entitled to participate in the combined competitive

examination for the fifth time.

3 4. The appellant had by then appeared in the written examination in

pursuance of the provisional permission and had succeeded in the written

examination. Being aggrieved by the action proposed to deny him the right

to participate in the examination process, the appellant filed a writ petition

for quashing the show cause notice dated 25.6.1993 and sought a direction to

respondents to permit him to appear in the interview. During the pendency

of the said writ petition, he was promoted as a Tahsildar on a substantive

basis, vide order dated 24.8.1996, with effect from 26.11.1993. The writ

petition was heard nearly thirteen years later and a learned Single Judge of

the High Court dismissed the writ petition by order dated 31.5.2006 holding

as under :

"In the present case, when the last date of receipt of the application forms

was extended by RPSC in keeping with the principles of fair play and with

a view to providing opportunities to all eligible candidates the contention

of the petitioner that the amended rule 11(1) was applied retrospectively

cannot be accepted. Even otherwise eligible criteria is required to be

applied with reference to the last date appointed by the competent

authority for receipt of application forms. The amendment in Rule 11(1)

having been made much before the last date of submission of the

application forms, all eligible candidates stood duly notified by the RPSC

by issuing a corrigendum. For these reasons it can also be accepted that

the amended rules were applied retrospectively so as to defeat the claim of

any eligible candidate. As per scheme envisaged in Rule 4 of 1962 Rules,

candidate can be held eligible against the quota of NGE only if he has

exhausted all the chance to appear in the examination as an open market

candidate. In my view, the action of RPSC in not permitting the petitioner

to appear against the NGE quota in the year 1990 did not suffer from any

legal infirmity and therefore, the petitioner could not be allowed one more

chance as a general candidate in the combined competitive examination of

the year 1992 as a general candidate and had ceased to be a non-gazetted

employee having been promoted to the post of Tehsildar which is a

gazetted post.

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5. The appellant challenged the said order in a civil special appeal and

the division bench dismissed the appeal in limine, by the impugned order

dated 5.4.2007, on the following reasoning:

"As to whether the petitioner was working as Tehsildar on ad hoc basis,

temporary basis or substantively is not material for the purpose of

consideration of the eligibility of the petitioner for combined competitive

examination to find out as to whether he could apply in the category on

non-gazetted employees. On the date of the application dated 18.1.1990,

the petitioner was working as Tehsildar and that he has been working as

Tehsildar since 15.10.1985 surely, therefore, his candidature in the

category of non-gazetted employees could not have been considered.

Thus, when Rule 4 of the Combined Competitive Examination was

amended on 20.3.1990 and the employees were allowed to avail of more

than three chances, the application made by the petitioner on 18.1.1990

could only have been considered in the open category and not in the

category of non-gazetted employees".

6. The said order is challenged in this appeal by special leave. The

appellant contends that he was appointed as a non-gazetted Naib Tehsildar

and worked as Naib Tehsildar upto 1990, that thereafter he was temporarily

promoted as Tehsildar, and that only on 24.8.1996, he was promoted on

substantive basis with retrospective effect, and therefore he could not be

considered as working as a Gazetted Officer till 1996. He contends that his

attempts in 1983, 1987 and 1989 were as an open market candidate, but his

application in regard to the examination for the year 1990, should be treated

as being in the NGE category and not as an open market candidate. He

therefore contended that he still had one more chance (fourth chance) as a

general category candidate under the Rules when he appeared for the fifth

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time in the examination for the year 1991 and therefore his participation was

valid.

7. The question therefore is whether the appellant's participation in the

examination for the year 1991 should be considered as the fourth attempt as

an open market candidate (in which event, he was entitled to participate) or

as the fifth attempt as an open market candidate (in which event, he was not

entitled to participate). This in turn requires consideration as to whether he

appeared as an open market candidate or as an NGE candidate, when he

appeared in the examinations for the year 1990.

8. Sub-rule 1 of Rule 11 of Rules provided that the number of chances

which a candidate appearing at the examinations can avail of, shall be

restricted to three, for direct recruitment to posts specified in Schedules I and

II of the Rules. The said rule was amended by notification dated 30.3.1990

whereby the ceiling in regard to the number of chances to appear in the

examination was relaxed by increasing it from 3 to 4 examinations. Rule 4

(1) of the Rules provides that 7% of the available vacancies in the state

services to be filled by direct recruitment shall, subject to the provisions of

sub-rule (2), be reserved for candidates who are non-gazetted employees of

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the government, Panchayat Samitis and Zila Parishads. Sub-rule (2) of

Rule 4 prescribed the eligibility conditions for the non-gazetted employees

to participate in the combined competitive examination. One of the five

conditions of eligibility for a non-gazetted employee to appear in the

combined competitive examination is that he must not be eligible to appear

in the examination as an open market candidate (vide clause (v) of Rule 4(2)

of the Rules). This would mean that unless a NGE candidate has exhausted

all four chances as an open market candidate, he cannot appear as an NGE

candidate.

9. It is not in dispute that the appellant appeared as an open market

candidate in the years 1983, 1987 and 1989. He also appeared in the

examination for the year 1990. While the appellant contends that his

appearance in the examination for 1990 was as an NGE candidate, the

respondents contend that his said appearance was as an open market

candidate for the fourth time. Having regard to the bar contained in Rule

4(2)(v), the appellant could not have appeared for the examination for the

year 1990, as an NGE candidate, as by then he had appeared only thrice as

an open market candidate and had not exhausted all the four chances as an

open market candidate. Therefore, the appearance of appellant in the

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examination for the year 1990 was as an open market candidate. If that is so,

having exhausted all four chances as an open market, he could not appear in

the examination for 1991 as an open market candidate. The appellant could

not also be considered as an NGE candidate in regard to the examination for

the year 1991, as by then he was working as a Tehsildar and was no longer a

non-gazetted employee. Therefore, the appellant was not entitled to

participate in the examination for the year 1991.

10. In view of the above there is no merit in the appeal and it is

accordingly dismissed.

................................J.

(R.V. Raveendran)

New Delhi; .............................J.

September 30, 2011. (H.L. Gokhale)