CW/19120/2013 of SURENDRA SINGH JATAV Vs R S R T C AND ORS on 20 December 2013

Issues

ORDER

1. SB Civil Writ Petition No.18940/2013Bhag Prakash & ors versus RSRTC & ors

2. SB Civil Writ Petition No.19120/2013Surendra Singh Jatav versus RSRTC & ors

3. SB Civil Writ Petition No.17934/2013Sumesh Kumari versus RSRTC & ors

4. SB Civil Writ Petition No.19635/2013Smt Anita versus Chief Manager, RSRTC & ors

5. SB Civil Writ Petition No.20895/2013Jai Singh Khatik versus RSRTC & ors Date of Order :

20[th] December, 2013

HON'BLE MR. JUSTICE MN BHANDARI

Mr Kailash Choudhary Mr Manoj Pareek Mr Raj Kumar GoyalMr Kailash Sharma - for petitioner(s)

BY THE COURT:

The bunch of writ petitions involves commonquestion of law thus were heard and decided by this judgment.

The petitioners are those who were appointed by therespondents after remaining successful in the selection test. Therespondents issued show cause notice on 27.9.2013 in CW

19635/2013 as to why services of the petitioners may not bediscontinued. It is in view of the revision of result after gettingexpert opinion on disputed questions and their answers.

Similar controversy came up for cosideration beforethis court in bunch of writ petitions led by SB Civil Writ PetitionNo.15788/2013, Hemendra Kumar Jangid & ors versus State ofRajasthan & anr which has been decided on 19.12.2013. Therein,this court refused to interfere in the similar action of therespondents. A detailed judgment has been rendered by this courtin the case supra. The relevant paras of the aforesaid judgment,where discussion of the issue is made, are quoted hereunder forready reference - “In view of above, the only question for myconsideration is as to whether termination can beeffected on revision of result either due to deletion ofcertain questions or correction of answer. The issueaforesaid was considered by the Apex Court in the caseof Rajesh Kumar & ors (supra). The correction in theanswer script and revaluation was allowed and held tobe just and legal. A direction for fresh selection in viewof application of improper answer key was notaccepted. The revaluation of answer key and the resultwas held to be a good option to do justice to those whosuffered on account of erroneous key. It was held thatsuch evaluation need not necessarily result in ousting ofappellants found below cut off marks based on revisedlist. Paras 17 to 19 are quoted hereunder for readyreference - “17. That brings us to the submission by

“17. That brings us to the submission by Mr. Rao that while re-evaluation is a goodoption not only to do justice to those whomay have suffered on account of anerroneous key being applied to the processbut also to writ Petitioners- Respondents 6to 18 in the matter of allocating to themtheir rightful place in the merit list. Suchevaluation need not necessarily result in theouster of the Appellants should they befound to fall below the 'cut off' mark in themerit list. Mr. Rao gave two reasons insupport of that submission. Firstly, hecontended that the Appellants are notresponsible for the error committed by theparties in the matter of evaluation of theanswer scripts. The position may have beendifferent if the Appellants were guilty ofany fraud, misrepresentation or malpracticethat would have deprived them of anysympathy from the Court or justified theirouster. Secondly, he contended that theAppellants have served the State efficientlyand without any complaint for nearly sevenyears now and most of them, if not all, mayhave become overage for fresh recruitmentwithin the State or outside the State. Theyhave also lost the opportunity to appear inthe subsequent examination held in the year2007. Their ouster from service after theiremployment on the basis of a properlyconducted competitive examination notitself affected by any malpractice or otherextraneousconsiderationormisrepresentation will cause hardship tothem and ruin their careers and lives. Theexperience gained by these Appellants overthe years would also, according to Mr. Rao,go waste as the State will not have theadvantage of using valuable humanresource which was found useful in theservice of the people of the State of Biharfor a long time. Mr. Rao, therefore, prayedfor a suitable direction that while re-evaluation can determine the inter-seposition of the writ Petitioners and theAppellants in these appeals, the result of such re-evaluation may not lead to theirouster from service, if they fell below thecut off line.

18. There is considerable merit in thesubmission of Mr. Rao. It goes withoutsaying that the Appellants were innocentparties who have not, in any manner,contributed to the preparation of theerroneous key or the distorted result. Thereis no mention of any fraud or malpracticeagainst the Appellants who have served theState for nearly seven years now. In thecircumstances, while inter-se merit positionmay be relevant for the Appellants, theouster of the latter need not be aninevitable and inexorable consequence ofsuch a re-evaluation. The re-evaluationprocess may additionally benefit those whohave lost the hope of an appointment on thebasis of a wrong key applied for evaluatingthe answer scripts. Such of thosecandidates as may be ultimately found to beentitled to issue of appointment letters onthe basis of their merit shall benefit by suchre-evaluation and shall pick up theirappointments on that basis according totheir inter se position on the merit list.

19. In the result, we allow these appeals,set aside the order passed by the HighCourt and direct that -

(1) answer scripts of candidatesappearing in 'A' series of competitionexamination held pursuant toadvertisement No. 1406 of 2006 shallbe got re-evaluated on the basis of acorrect key prepared on the basis ofthe report of Dr. (Prof.) CN Sinhaand Prof. KSP Singh and theobservations made in the body of thisorder and a fresh merit list drawn upon that basis.

(2) Candidates who figure in the

merit list but have not beenappointed shall be offeredappointments in their favour. Suchcandidates would earn their seniorityfrom the date the Appellants werefirst appointed in accordance withtheir merit position but without anyback wages or other benefitwhatsoever.

(3) In case writ Petitioners-Respondent Nos. 6 to 18 also figurein the merit list after re-evaluation oftheanswerscripts,theirappointments shall relate back to thedate when the Appellants were firstappointed with continuity of serviceto them for purpose of seniority butwithout any back wages or otherincidental benefits.

(4) Such of the Appellants as do notmake the grade after re-evaluationshall not be ousted from service, butshall figure at the bottom of the listof selected candidates based on thefirst selection in terms ofadvertisement No. 1406 of 2006 andthe second selection held pursuant toadvertisement No. 1906 of 2006.

(5) Needful shall be done by theRespondents - State and the StaffSelection Commission expeditiouslybut not later than three months fromthe date a copy of this order is madeavailable to them.”

The next judgment is in the case of SabitaPrasad & ors (supra). Therein, the panel prepared forappointment was held to be unconstitutional thus aprayer was made not to continue any candidateappointed out of the aforesaid panel. Referring tovarious judgments, it was found that while passingorders in favour of the petitioners, invariably aprotection is given in favour of those who are not partyand continued in service. It was a case where afterholding the panel to be unconstitutional, governmenttook a decision not to disturb those who have already been appointed and continued in service. The ApexCourt held decision of the government to be just andproper as the appointees were not party to the litigationand otherwise the High Court had given a protection tothose who were already appointed while holding panelto be unconstitutional.

The judgments in the case of Suresh Kumarversus RPSC (supra), Ramesh Chand versus RSRTC(supra) and Naresh Kumar Sharma & ors versus State ofRajasthan & ors, 2012(1) WLC (Raj) 538 are similarinasmuch as this court saved those who were not partyto the litigation. The dispute regarding appointment tothe post of Teacher Gr II for different subjects was notdirectly involved in the case of Suresh Kumar versusRPSC (supra). Therein, change of result of Generalknowledge affected selection to the post of Teacher GrII. This court observed that while revising the result ofTeacher Gr II of other subjects, it should not affect theperson already appointed. The observation aforesaidwas looking to the fact that a challenge to the selectionto the post of Teacher Gr II for different subjects wasnot involved therein and otherwise the candidatesappointed were not party to the litigation. Theobservation therein is not evolving any ratio so as toapply to other case.

The position of fact is similar in the case ofRamesh Chand versus RSRTC (supra) wherein afterfinalisation of the result and appointment, the questionof correctness of the answers was raised. Therein,interference in the appointments was not made only forthe reason that it will unsettle the selection andappointment of the candidates already appointed andwere not party to the litigation.

In view of above and as held by the ApexCourt in the case of Sabita Prasad (supra), invariableobservations or directions are issued not to touchappointments of those who are not party to thelitigation. Para 30 of the judgment in the case of SabitaPrasad is quoted hereunder - “30.The non-interference with theappointment of teachers from thepanel who stood already appointed cannot in our opinion form the basisof Article 14 argument. Thefundamental right of equality impliesthat persons in like situations, underlike circumstances, are entitled to betreatedalike.Reasonableclassification according to someprinciple to recognise intelligibleinequalities or to avoid or correctinequalities is permissible. It is inthis background that we must divertour attention to the charge ofviolation of Article 14. Indeed, if theaction of the State can be shown tobe arbitrary, then notwithstandingany classification it would offendArticle 14 and be liable to be struckdown. Those who had beenappointed out of the panel as andwhen the vacancies arose and hadcontinued in service did acquiresome right to so continue and theaction of the State Government inprotecting their services cannot besaid to infringe Article 14, whicheven though all pervasive, has to beconsidered in the facts andcircumstances of each case. Theappointed and the non- appointedteachers formed separate and distinctclasses. In saving the appointmentsof those who stood already appointedand were serving there was noarbitrariness whatsoever on the partof the Respondents. It indeed is nobody's case that the decision taken bythe State was actuated by any motiveor the scrapping of the panel after2.7.1989, was malafide. Evenotherwise; when the State decided torespect the equities which havearisen in favour of the teachersalready appointed and serving, nofault can be found with it. Equityreforms and moderates the rigour andhardness of the law and the State acted fairly and bonafide to respectand balance the equities in favour ofthe appointed candidates. We must,therefore, reject the charge ofarbitrariness in view of the peculiarfacts of this case more particularlysince we have already found that thepersons on the panel had notacquired any indefeasible right toappointment merely by being placedon the panel. It also deserves to benoted here that the Appellants hadnot questioned, as it is, the validity ofappointment of the teachers, alreadyappointed, but have on the otherhand sought treatment similar to theone of the appointed teachers. Thedecision to save the appointments ofthe teachers already appointed, whoform a distinct and separate class, istherefore fair and reasonable anddoes no suffer from the vice ofarbitrariness. This view also accordswith the judgment in Subash ChanderMarwaha's case (supra) and the lawlaid down by the Constitution Benchin Shankarsan Dash's case (supra).We must, therefore reject theargument of discrimination betweenthe two classes of teachers, namely,those who stood appointed and theothers who were waiting to beappointed and in whose favour noindefeasible right accrued, only bybeing brought on the panel, to beappointed.”

The para aforesaid shows that there shouldbe a difference between the appointees and non-appointees thus while deciding a particular writpetition, some safeguard can be given to the appointee,if they are not party to the litigation.

The judgment in the case of P Shiva(supra) decided by High Court of Karnataka is not inregard to recruitment but for promotion. The viewtaken therein was that even if one has not securedrequired marks for acquiring eligibility, he/she shouldnot be affected unless it is by way of fraud ormalpractice or irregularities. In my opinion, thejudgment aforesaid is having only persuasive value and,with respect, cannot be accepted to be laying downcorrect law inasmuch as difference has to be madebetween ineligible and eligible candidates. Thecontinuance of ineligible candidates would meanviolation of the rules or a direction de hors the statutoryprovisions.

In the case of Vikas Pratap Singh & ors(supra) the issue again came up before the Apex Court.Therein, revision of result was due to revaluation ofanswer script where 8 questions of Paper-II were foundto be incorrect. Due to revaluation, 26 appellantscould not find place in the merit, accordingly theirappointments were cancelled. Para 16 to 20 and 25 to28 of the above judgment are quoted hereunder forready reference - “16. In respect of the Respondent-Board'spropriety in taking the decision of re-evaluation of answer scripts, we are of theconsidered view that the Respondent-Boardis an independent body entrusted with theduty of proper conduct of competitiveexaminations to reach accurate results infair and proper manner with the help ofExperts and is empowered to decide uponre-evaluation of answer sheets in theabsence of any specific provision in thatregard, if any irregularity at any stage ofevaluation process is found. (See:Chairman, J and K State Board ofEducation v. Feyaz Ahmed Malik and Ors.(2000) 3 SCC 59 and Sahiti and Ors. v.The Chancellor, Dr. N.T.R. University ofHealth Sciences and Ors. (2009) 1 SCC599). It is settled law that if theirregularities in evaluation could be noticedand corrected specifically and undeserving select candidates be identified and in theirplace deserving candidates be included inselect list, then no illegality would be saidto have crept in the process of re-evaluation. The Respondent-Board thusidentified the irregularities which had creptin the evaluation procedure and correctedthe same by employing the method of re-evaluation in respect of the eight questionsanswers to which were incorrect and bydeletion of the eight incorrect questions andallotment of their marks on pro-rata basis.The said decision cannot be characterizedas arbitrary. Undue prejudice indeed wouldhave been caused had there been re-evaluation of subjective answers, which isnot the case herein.

17. In view of the aforesaid, we are of theconsidered opinion that in the facts andcircumstances of the case the decision ofre-evaluation by the Respondent-Board wasa valid decision which could not be said tohave caused any prejudice, whatsoever,either to the Appellants or to the candidatesselected in the revised merit list andtherefore, we do not find any infirmity inthe judgment and order passed by the HighCourt to the aforesaid extent.

18. It is brought to our notice that in view ofthe interim orders passed by the learnedSingle Judge the Appellants have nowcompleted their training and have been inservice for more than three years. Thereforethe only question which survives for ourconsideration and decision is whether afterhaving undergone training and assumedcharge at their place of posting the 26Appellants be ousted from service on thebasis of cancellation of their appointmentqua the revised merit list.

19. Shri Rao would submit that the case ofthese Appellants requires sympathetic

consideration by this Court, since theappointment of Appellants on the basis of aproperlyconductedcompetitiveexamination cannot be said to have beenaffected by any malpractice or otherextraneousconsiderationormisrepresentation on their part. The ousterof 26 Appellants from service after havingsuccessfully undergone training andserving the Respondent-State for more thanthree years now would cause unduehardship to them and ruin their lives andcareers. He would further submit that anirretrievable loss in terms of life andlivelihood would be caused to eightAppellants amongst them who have nowbecome over aged and have also lost theopportunity to appear in the subsequentexaminations. He would place relianceupon the decision of this Court in RajeshKumar and Ors. v. State of Bihar and Ors.,2013(3) SCALE 393 wherein this Courthas directed the Respondent-State to re-evaluate the answer scripts on the basis ofcorrect model answers key andsympathetically considered the case of suchcandidates who, after having beingappointed in terms of erroneous evaluationand having served the State forconsiderable length of time, would not findplace in the fresh merit list drawn after re-evaluation and directed the Respondent-State against ousting of such candidatesand further that they be placed at thebottom of the fresh merit list.

20. The pristine maxim of fraus et jusnunquam cohabitant (fraud and justicenever dwell together) has never lost itstemper over the centuries and it continuesto dwell in spirit and body of service lawjurisprudence. It is settled law that no legalright in respect of appointment to a saidpost vests in a candidate who has obtainedthe employment by fraud, mischief,misrepresentation or malafide. (See:

District Collector and Chairman,Vizianagaram Social Welfare ResidentialSchool Society, Vizianagaram and Anr. v.M. Tripura Sundari Devi (1990) 3 SCC655, P. Chengalvaraya Naidu v. Jagannathand Ors (1994) 1 SCC 1 and Union ofIndia and Ors. v. M. Bhaskaran 1995Suppl. (4) SCC 100). It is also settled lawthat a person appointed erroneously on apost must not reap the benefits of wrongfulappointment jeopardizing the interests ofthe meritorious and worthy candidates.However, in cases where a wrongful orirregular appointment is made without anymistake on the part of the appointee andupon discovery of such error or irregularitythe appointee is terminated, this Court hastaken a sympathetic view in the light ofvarious factors including bonafide of thecandidate in such appointment and lengthof service of the candidate after suchappointment (See: Vinodan T. and Ors. v.University of Calicut and Ors. (2002) 4SCC 726; State of U.P. v. Neeraj Awasthiand Ors. (2006) 1 SCC 667).

25. Admittedly, in the instant case the errorcommitted by the Respondent-Board in thematter of evaluation of the answer scriptscould not be attributed to the Appellants asthey have neither been found to havecommitted any fraud or misrepresentationin being appointed qua the first merit listnor has the preparation of the erroneousmodel answer key or the specious resultcontributed to them. Had the contrary beenthe case, it would have justified their ousterupon re-evaluation and deprived them ofany sympathy from this Court irrespectiveof their length of service.

26. In our considered view, the Appellantshave successfully undergone training andare efficiently serving the Respondent-Statefor more than three years and undoubtedlytheir termination would not only impinge upon the economic security of theAppellants and their Dependants but alsoadversely affect their careers. This wouldbe highly unjust and grossly unfair to theAppellants who are innocent appointees ofan erroneous evaluation of the answerscripts. However, their continuation inservice should neither give any unfairadvantage to the Appellants nor causeundue prejudice to the candidates selectedqua the revised merit list.

27. Accordingly, we direct the Respondent-State to appoint the Appellants in therevised merit list placing them at thebottom of the said list. The candidates whohave crossed the minimum statutory age forappointment shall be accommodated withsuitable age relaxation.

28. We clarify that their appointment shallfor all intents and purpose be freshappointment which would not entitle theAppellants to any back wages, seniority orany other benefit based on their earlierappointment.”

The perusal of the paras quoted abovereveals that so far as revaluation of the answers andrevision of the result is concerned, no illegality existtherein. The Hon'ble Supreme Court further consideredthe issue as to whether revaluation should oust thecandidates earlier appointed.

The issue aforesaid is required to beviewed from two aspects. First is as to whether therecan be re-valuation of the answer script so as to ignoreincorrect answers or to correct the answers given in thekey. It is held permissible by the Hon'ble Apex Court incatena of judgments and specially the judgments(supra), thus one proposition becomes clear that therecan be change in the answer script so as to correct thequestions and answers.

The question further comes as to for whose advantage, it needs to be corrected? The obviousanswer is that those who had given correct answer of aquestion but could not obtain marks because oferroneous setting of answer key of a particular questionor questions and, at the same time, benefited those whohad given incorrect answer, yet secured marks due tothe reasons stated above. If incorrect answer key isallowed to remains as it is, it would be to the benefit ofthose who had given incorrect answer and taken benefitof the default of the respondents in setting erroneousanswer key and secured marks over and abovemeritorious candidates. Thus, it becomes clear thatrevaluation of answer script is to benefit meritoriouscandidates.

The next question and the crucial issue isthat if revaluation of answer script ultimately results inrevision of merit list to the benefit of meritoriouscandidates, then can a candidate going out of meritshould be allowed to continue in service? If the answeris given in affirmative then it would result in givingbenefit to a candidate who had given incorrect answersto certain questions and even after correction ofanswers and coming out of the merit would still takebenefit of default of the respondents. They will continueeven though there are candidates with better marks afterrevised result.

If the candidates, already appointed, arecontinued then the question would be as to how therevised merit list would be operated for the meritoriouscandidates. It is settled law that the size of the posts forrecruitment is to be determined by the administrationand if, that is so, then giving direction for appointmentof meritorious candidates out of the revised merit listwould mean a direction to give appointment in excessto the posts advertised. If a direction to giveappointment in excess to the posts advertised cannot begiven then meritorious candidates would be deprivedfrom appointment. In that case, what would be thepurpose of revaluation of the answer script or thequestions?

If a view is taken to direct the respondentsto adjust those who have already been appointed againstfuture vacancies, then equity in favour of such candidates would be at the cost of meritoriouscandidates of next recruitment thus, under allcircumstances, a direction to continue less meritoriouscandidates would be proper or not, needs to beconsidered. The reference of the judgment of theHon'ble Supreme Court in the case of “Hoshiar Singhversus State of Haryana & ors” [AIR 1993 SC 2606]would be relevant and para 10 thereof is quotedhereasunder- “10. The learned counsel for theseappellants have not been able to show thatafter the revised requisition dated January24, 1991 whereby the Board was requestedto send its recommendation for 8 posts, anyfurther requisition was sent by the DirectorGeneral of Police for a larger number ofposts. Since the requisition was for eightposts of Inspector of Police, the Board wasrequired to send its recommendations foreight posts only. The Board, on its own,could not recommend names of 19 personsfor appointment even though therequisition was for eight posts onlybecause the selection and recommendationof larger number of persons than the postsfor which requisition is sent. Theappointment on the additional posts on thebasisofsuchselectionandrecommendation would deprive candidateswho were not eligible for appointment tothe posts on the last date for submission ofapplicationsmentionedontheadvertisement and who became eligible forappointment thereafter, of the opportunityof being considered for appointment on theadditional posts because if the saidadditionalpostsareadvertisedsubsequently those who become eligiblefor appointment would be entitled to applyfor the same. The High Court was,therefore, right in holding that the selectionof 19 persons by the Board even thoughthe requisition was for 8 posts only, wasnot legally sustainable.”

There may be cases where no vacancy existafter appointment. Though, at times, the court passesorder saving appointment already given, but,invariably, it is in such cases where appointees are notbefore the court or there are such similar exceptionalcircumstances. The direction therein are notpropounding a ratio as has been given by the counsel forthe petitioners while referring the judgment in the caseof Ramesh Chand and Naresh Kumar Sharma (supra).The aforesaid would be considered separately, but,presently, I am reiterating a portion of the judgment inthe case of Vikas Pratap Singh and Rajesh Kumar(supra), heavily relied by learned counsel forpetitioners. Firstly, a part of the judgment in the case ofVikas Pratap Singh, para 20 -

“...It is also settled law that a personappointed erroneously on a post mustnot reap the benefits of wrongfulappointmentjeopardizingtheinterests of the meritorious andworthy candidates. However, in caseswhere a wrongful or irregularappointment is made without anymistake on the part of the appointeeand upon discovery of such error orirregularity the appointee isterminated, this Court has taken asympathetic view in the light ofvarious factors including bonafide ofthe candidate in such appointmentand length of service of the candidateafter such appointment(See:Vinodan T. and Ors. v. University ofCalicut and Ors. (2002) 4 SCC 726;State of U.P. v. Neeraj Awasthi andOrs. (2006) 1 SCC 667)....

26.........However, their continuationin service should neither give anyunfair advantage to the Appellantsnor cause undue prejudice to thecandidates selected qua the revisedmerit list.”

A perusal of the para quoted above revealsthat a person appointed erroneously must not reapbenefits of wrongful appointment jeopardizing interestof meritorious and worthy candidates. Second part,however, save petitioners' appointment due to discoveryof error or irregularity but it is by taking a sympatheticview in the light of various factors including length oftheir service.

The Apex Court, thereupon, took notice offurther fact that continuance of services of theappointees should neither give unfair advantage to theappellants nor cause undue prejudice to the candidatesselected qua revised merit list. If the aforesaid is takeninto consideration on the facts of these cases, answerwould be in negative because the whole purpose of therevision of the merit list would be vitiated and causeserious prejudice to the candidates who find place in themerit list after revision of result if they cannot be givenappointment. Thus, while referring to the judgment inthe case of Vikas Pratap Singh (supra), this court cannotignore the reason taken therein for continuance ofcandidates. It was purely on sympathetic considerationand taking note of their length of service apart frombona fides.

The position of fact is similar in the case ofRajesh Kumar (supra). Therein, Hon'ble Apex Courttook notice that the candidates already appointed werenot guilty of any fraud, misrepresentation ormalpractice. They had otherwise served the Stateefficiently for nearly 7 years and even become overagefor fresh recruitment within the State or outside theState. They lost the opportunity to appear in thesubsequent examination held in the year 2007. Theportions of para 17 and 18 of the said judgment is againquoted hereunder for ready reference -

17. That brings us to the submission by Mr.

Rao that while re-evaluation is a goodoption not only to do justice to those whomay have suffered on account of anerroneous key being applied to the processbut also to writ Petitioners- Respondents 6to 18 in the matter of allocating to themtheir rightful place in the merit list. Such evaluation need not necessarily result inthe ouster of the Appellants should they befound to fall below the 'cut off' mark in themerit list...

......Secondly, he contended that theAppellants have served the State efficientlyand without any complaint for nearly sevenyears now and most of them, if not all, mayhave become overage for fresh recruitmentwithin the State or outside the State. Theyhave also lost the opportunity to appear inthe subsequent examination held in the year2007. Their ouster from service after theiremployment on the basis of a properlyconducted competitive examination notitself affected by any malpractice or otherextraneousconsiderationormisrepresentation will cause hardship tothem and ruin their careers and lives.

18. ........In the circumstances, while inter-se merit position may be relevant for theAppellants, the ouster of the latter need notbe an inevitable and inexorableconsequence of such a re-evaluation. There-evaluation process may additionallybenefit those who have lost the hope of anappointment on the basis of a wrong keyapplied for evaluating the answer scripts.Such of those candidates as may beultimately found to be entitled to issue ofappointment letters on the basis of theirmerit shall benefit by such re-evaluationand shall pick up their appointments on thatbasis according to their inter se position onthe merit list.”

The perusal of portions of the paras quotedabove shows that revaluation is a good option to dojustice to those who have suffered on account oferroneous key so as to place them in the merit list. Itmay not necessarily oust the candidates already appointed in a given circumstance. The aforesaidformula cannot be applied in general but only in givencase which may be if a candidate has continued inservice for long.

In the case of Rajesh Kumar (supra), tworeasons were given to continue the candidates oustedfrom the merit. First was that they were not guilty offraud, misrepresentation or malpractice etc and secondwas that they had served for 7 years and lost furtheropportunity of service.

In reference of the judgment above, itbecome clear that revision of result may not necessarilyoust the candidates already appointed, if they are goingout of merit list but aforesaid cannot be a rigid formulain view of the ratio propounded by the Hon'ble ApexCourt in the case supra itself. It all depends on the factsof each case.

If, in all circumstances, a candidategoing out of merit is continued in service, it would beadjustment of less meritorious candidates at the costof those who may exist in between new cut off marksand the marks of the petitioners.

Now comes the issue in reference to thejudgment in the case of Sabita Prasad (supra). It isearlier clarified that writ petition therein was filed tooust those who were not entitled to continue on thepost. It is in the light of a decision of the government tocontinue such candidates. The Hon'ble Apex Courttherein held that if the State has taken a decision tocontinue such candidates, it will not violate Article 14of the Constitution of India. The difference between theappointees and non-appointees is to be made. The factssituation in the instant case is different because it is thegovernment which has taken a decision to discontinuethose candidates who are not coming in the revisedmerit list. Therein, the court was cautious enough tohold that those who had been appointed out of the panelwhen vacancy arose and had continued in service,acquire some right to continue and the action of theState Government in continuing their services cannot besaid to be infringe Article 14 of the Constitution which

even though of persuasive value, has to be consideredin the facts and circumstances of each cases. Theaforesaid observation has been made in para 30 thusthere exist room for this court to decide the issue ofcontinuance and non-continuance of the candidates inthe facts and circumstances of each case. Portion ofpara 30 of the judgment in the case of Sabita Prasad(supra) is quoted again for ready reference - “30.The non-interference with theappointment of teachers from thepanel who stood already appointedcannot in our opinion form the basisof Article 14 argument. Thefundamental right of equality impliesthat persons in like situations, underlike circumstances, are entitled to betreatedalike.Reasonableclassification according to someprinciple to recognise intelligibleinequalities or to avoid or correctinequalities is permissible. It is inthis background that we must divertour attention to the charge ofviolation of Article 14. Indeed, if theaction of the State can be shown tobe arbitrary, then notwithstandingany classification it would offendArticle 14 and be liable to be struckdown. Those who had beenappointed out of the panel as andwhen the vacancies arose and hadcontinued in service did acquiresome right to so continue and theaction of the State Government inprotecting their services cannot besaid to infringe Article 14, whicheven though all pervasive, has to beconsidered in the facts andcircumstances of each case. Theappointed and the non- appointedteachers formed separate and distinctclasses. In saving the appointmentsof those who stood already appointedand were serving there was noarbitrariness whatsoever on the part of the Respondents. It indeed is nobody's case that the decision taken bythe State was actuated by any motiveor the scrapping of the panel after2.7.1989, was malafide. Evenotherwise; when the State decided torespect the equities which havearisen in favour of the teachersalready appointed and serving, nofault can be found with it. Equityreforms and moderates the rigour andhardness of the law and the Stateacted fairly and bonafide to respectand balance the equities in favour ofthe appointed candidates. We must,therefore, reject the charge ofarbitrariness in view of the peculiarfacts of this case more particularlysince we have already found that thepersons on the panel had notacquired any indefeasible right toappointment merely by being placedon the panel. It also deserves to benoted here that the Appellants hadnot questioned, as it is, the validity ofappointment of the teachers, alreadyappointed, but have on the other handsought treatment similar to the one ofthe appointed teachers. The decisionto save the appointments of theteachers already appointed, who forma distinct and separate class, istherefore fair and reasonable anddoes no suffer from the vice ofarbitrariness. This view also accordswith the judgment in Subash ChanderMarwaha's case (supra) and the lawlaid down by the Constitution Benchin Shankarsan Dash's case (supra).We must, therefore reject theargument of discrimination betweenthe two classes of teachers, namely,those who stood appointed and theothers who were waiting to beappointed and in whose favour noindefeasible right accrued, only by being brought on the panel, to beappointed.”

The government may take a decision tocontinue services of those who have already beenappointed but then it should not be generally at the costof meritorious candidates. It would otherwise become acase of misplaced sympathy in favour of the appointeesand prejudicial to the cause of meritorious candidateswhich has not been accepted by the Apex Court in thecase of Vikas Pratap Singh (supra).

Arguments

Learned counsel for petitioners have evenreferred to the judgment of this court whereappointments of the candidates were saved. The firstjudgment is in the case of Suresh Kumar & ors (supra).It was a case where correctness of certain questions forthe post of Teacher Gr II (Social Science andMathematics) was questioned apart from GeneralKnowledge. This court noticed that there was a changein the answers in General Knowledge also and it wascommon for appointment on the post of Teacher Gr IIin different subjects. The Rajasthan Public ServiceCommission agreed to change the result of the post ofTeacher Gr II of Social Science and Mathematics. Theissue in respect of Teacher Gr II of other subject wasnot before the court thus, cautiously, a direction wasgiven not to disturb the appointees, otherwisedirection aforesaid would have been without hearingthe appointees of other subjects apart from the fact thatthe issue was limited therein for Teacher Gr II in thesubject of Social Science and Mathematics. Therein, thedirection was given to settle the equities in favour ofthe meritorious candidates. The issue therein was ondifferent facts and otherwise it is not propounding aratio but gives a direction in the facts andcircumstances of the case.

In the instant case, the issue has beendiscussed and decided elaborately in reference of thejudgment of the Apex Court in the case of RajeshKumar and Vikas Pratap Singh.

The position of fact in the case of RameshChand versus RSRTC (supra) is again similar. Therein, certain questions were found to be incorrect afterappointment of the candidates, however, a direction toamend select list was not given as it was unsettling theselection and appointment without hearing thecandidates who have already been appointed thus, onfacts, a direction was given not to unsettle the result asthe appointees are not heard being not party to thelitigation.

In the case of Naresh Kumar Sharma & ors(supra), the appointments were continued for threeyears thus a direction for their continuance was given.The direction aforesaid has been taken to be ratiopropounded by this court. It is in ignorance to the factthat discussion on the issue does not exist therein thus itremains only a direction.

In view of the discussion made above, Ifind that the impugned order dated 30.8.2013 issued bythe Principal Secretary & Commissioner, RuralDevelopment & Panchayati Raj (Panchayati Raj &Elementary Education), Government of Rajasthan orthe termination orders, if any, in consequence thereofdo not suffer from any illegality. It is in the light of thefact that each issue raised by learned counsel forpetitioners have been considered by this court thussending the matter for post-decisional hearing toobserve principles of natural justice would be an emptyformality. I do not find any illegality in the action of therespondents and justification of continuance of servicesof the petitioners....”

In view of the discussion made in the paras quotedabove and the reasons given therein, this court is not inclined tocause interference in the action of the respondents, however, writpetitions so as the stay applications are disposed of with followingdirections/ observations - 1-This court is not inclined to cause interference in the impugned show cause notice for termination or an order of termination ofservices of the petitioners, if any.

2-The petitioners were appointed and continued in service andappointment and continuance was not to their default, however,this court cannot ignore revision of merit list and consequencethereof. To balance the equities, a direction is given to therespondents to allow the petitioners to appear in the next selectionwithout debarring them on the ground of age.

3-Before parting with the judgment, it would be necessary todirect that respondents not to make appointments in future to anypost unless they first call for the objections to the questions andanswers and finalise it followed by publication of select list. Thisis to avoid type of litigation brought herein.

(MN Bhandari), J.

bnsharma

All corrections made in the judgment/ order have beenincorporated in the judgment/ order being emailed.

(BN Sharma)PS-cum-JW