Not Reportable IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8399 OF 2011
[Arising out of SLP [C] No.27941/2008]
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.
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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)
