CASE NO.: Appeal (civil) 3615-3618 of 2002 PETITIONER: RAJASTHAN PUBLIC SERVICE COMMISSION AND ANR. RESPONDENT: HARISH KUMAR PUROHIT AND ORS. DATE OF JUDGMENT: 01/04/2003 BENCH: SHIVARAJ V. PATIL & ARIJIT PASAYAT JUDGMENT:
JUDGMENT
2003 (3) SCR 206
The Judgment was delivered by ARIJIT PASAYAT, J.
(Civil Appeal Nos. 3615-3618 of 2002) In these appeals by Rajasthan Public
Service Commission (in short ‘the Commission’) and its Chairman, challenge
is to the legality of common judgment by a Division Bench of Rajasthan High
Court disposing of four writ petitions.
2. Synoptical resumption of the factual position, almost undisputed is as
follows:
On 1.6.2001 an advertisement to recruit 116 Munsif Magistrates was issued
by the Commission; out of which 59, 24, 19 and 14 were earmarked for the
General, OBC, SC and ST categories respectively. In terms of the scheme of
the examination, only those candidates who obtained a minimum of 35 marks
in each law paper and 40% in aggregate were eligible to be called for
interview. For the posts in question, stipulation was that candidates
numbering three times the number of posts adverised in each category were
eligible to be called for interview. Commission issued interview letters to
302 candidates in respect of 116 vacancies. The shortfall was on account of
non-availability of candidates in SC and ST categories. Though the number
of posts were 59 in the General category, 189 candidates were called for
interview as several candidates who had obtained marks similar to the last
candidate had to be called for interview.
3. Four writ petitions were filed at Jodhpur Bench of the Rajasthan, High
Court. They were disposed of on 20th December, 2001 by the impugned common
judgment. In the Writ Petitions the petitioners had sought for the
following directions:
“a) by an appropriate writ order or direction, the Respondents may
kindly be directed to consider more candidates from general category as
per the posts available and as per the condition-2 advertisement;
b) by an appropriate writ, order or direction, the Respondents may
kindly be directed to implement the condition-2 of the advertisement
for filing up the reserved vacancies adopting the general procedure;
c) any other appropriate writ, order or direction which this Hon’ble
Court may deem just and proper in the facts and circumstances of the
case may kindly be passed in favour of the Petitioner;d) writ petition
filed by the Petitioner may kindly be allowed with costs.”
4. Stand of the petitioners was that each one of them had obtained 35 marks
in each of the law papers and 40% marks in aggregate. In case of non-
availability of SC & ST candidates, the available seats were to be filled
up by candidates belonging to general category. Therefore, the Commission
had to call 210 candidates by treating the number of posts available in the
general category to be 70 (i.e. 59 as originally fixed and 11 on account of
non-availability of candidates in SC & ST categories). The Division Bench
accepted the stand, though the Commission pointed out that there is no
provision in the Rajasthan Judicial Service Rules, 1955 (in short ‘the
Rules’) unlike Rajasthan Higher Judicial Service Rules, 1969 (in short the
‘Higher Judicial Rules’) which provides for a decision to be taken to fill
up the posts from the general category or to de-reserve or carry forward in
case of non-availability of candidates from the reserved categories. The
directions given by the Division Bench in the impugned judgment are to the
following effect:
“In view of the aforesaid, we allow all the four writ petitions. The
Respondent Commission is directed to call not less than 210 candidates
from the General Category for interview instead of 189. We make it
clear that judgment proceeds on the basis that R.P.S.C. is interviewing
candidates for R.J.S. against 70 posts in General Category. However,
this will not prevent the appropriate Authorities to take a decision in
accordance with the relevant rules, particularly Clause 3 of Schedule
II of R.J.S. Rules, to fill up only 59 vacancies in the General
Category and carry forward the vacancies of Scheduled Tribe, but such a
decision should be taken before the result is declared. However, this
should not delay the process of recruitment. If such a decision is not
taken before 4.1.2002, the liberty given shall stand vacated. Any such
decision will be not affect the merit of selection from the expanded
zone under this order.”
5. The challenge, as noted above, in these appeals is to the aforesaid
direction.
6. Learned counsel for the appellant-Commission submitted that the
directions as noted above the indefensible. There was no automatic increase
in the vacancies in the general category from 59 to 70. The directions
given are contradictory in themselves. While for the purpose of calling
candidates to the interview the High Court has directed to call 210
candidates by treating the number of available vacancies to be 70, on the
same breath it has permitted the Commission to fill up only 59 vacancies in
the general category and to carry forward the vacancies of Scheduled
Tribes. It is not clear as to what useful purpose would be served by
adopting dual procedure. It was pointed out by order dated 27.12.2001, this
Court has permitted the Commission to complete the interview as scheduled
and prepare and finalise the select list of 59 posts for the general
category, 24 posts for OBC, 19 posts for Scheduled Castes and 3 posts for
Scheduled Tribes, subject however, to the candidates that no select list
shall be prepared and published for the remaining 11 posts of Scheduled
Tribes which may be transferred to the general category, if the Government
takes a decision to fill up these posts from amongst the general category.
It is pointed out that pursuant to the said directions, results have been
published and appointments have been made. It is further pointed out that
even if the directions of the High Court to call 210 candidates for the
interview would have been complied with, the writ petitioners would not
have come within the zone of consideration. It was pointed out that another
Division Bench considering similar prayers had by judgment dated 13.12.2001
dismissed the writ application. Similar contentions were rejected. Though
the decision was brought to the notice of the Bench hearing the subsequent
petitions which had noted this aspect in the judgment, did not make any
reference to its observations and conclusions.
7. There is no appearance by the private respondents in spite of the
service of notice except by one Devilal Mothsra who is respondent no.1 in
C.A. No. 3618 of 2002.
8. An application for intervention has been filed by certain candidates (in
IA No. 1/2002 in CA No. 3615- 3618/2002) seeking permission to intervene.
9. We shall first deal with this prayer first. It is fairly accepted by the
learned counsel for the applicants that they have not approached the High
Court. But it is submitted that the applicants belonging to the OBC and the
woman category and their presence would facilitate proper adjudication of
these appeals. The prayer is clearly untenable. Since they have not
approached the High Court and it has not been even so that they would be
amongst the 210 candidates who were to be called for interview if the
impugned judgment is maintained, we see no merit in the application for
intervention. The same is rejected.
10. As rightly submitted by learned counsel for the appellants, the
directions given by the High Court are contradictory in terms. Once it has
been accepted by the High Court that it was open to the Government to
decide as to whether the posts are to be de-reserved or carry forwarded,
there was no basis to proceed on the assumption that they would be de-
reserved, thereby making the number of posts available for the general
category as 70. At the completion of the written examinations, there were
only 59 posts available for the general category. On a hypothetical basis
that there is a possibility to increase the number of posts in general
category, candidates numbering three times the number of posts including
assumed inclusions had to be called, the High Court gave the direction
which defies logic.
11. That being the position the High Court was not correct in directing
that 210 candidates to be called for the interview. The judgment deserves
to be nullified, which we direct.
12. Before parting with the case we would like to point out one disturbing
feature which has been brought to our notice. On 13.12.2001 a Division
Bench dismissed an application containing identical prayers. Even before
the ink was dry on the judgment, by the impugned judgment, another Division
Bench took a diametrically opposite view. It is not that the earlier
decision was not brought to the notice of the subsequent Division Bench
hearing the subsequent applications. In fact, a reference has been made by
the submissions made by the Commission where this decision was highlighted.
Unfortunately, the Division Bench hearing the subsequent applications did
not even refer to the conclusions arrived at by the earlier Division Bench.
The earlier decision of the Division Bench is binding on a Bench of co-
ordinate strength. If the Bench hearing matters subsequently entertains any
doubt about the correctness of the earlier decision, the only course open
to it is to refer the matter to a larger Bench.
13. The position was highlighted by this Court in a three- judge Bench
decision in State of Tripura vs. Tripura Bar Association and others 1998
(5) SCC 637 ) in the following words:
“We are of the view that the Division Bench of the High Court which has
delivered the impugned judgment being a co-ordinate Bench could not
have taken a view different from that taken by the earlier Bench of the
High Court in the case of Durgadas Purkayastha vs. Hon’ble Gauhati High
Court (1988 (1) Gau LR 6). If the latter Bench wanted to take a view
different than that taken by the earlier Bench, the proper course for
them would have been to refer the matter to a larger Bench. We have
perused the reasons given by the learned Judges for not referring the
matter to a larger Bench. We are not satisfied that the said reasons
justified their deciding the matter and not referring it to the larger
Bench. In the circumstances, we are unable to uphold the impugned
judgment of the High Court insofar as it relates to the matter of inter
se seniority of the Judicial Officers impleaded as respondents in the
writ petition. The impugned judgment of the High Court insofar as it
relates to the matter of seniority of the respondent – Judicial
Officers is set aside. The appeals are disposed of accordingly. No
costs.”
14. In the instant case, the position is still worse. The latter Bench did
not even indicate as to why it was not following the earlier Bench judgment
though brought to its notice. Judicial propriety and decorum warranted such
a course indicated above to be adopted.
15. Appeals are allowed. Costs, cost in the cause.
Civil Appeal No. 3614 of 2002
16. The appeal is allowed in view of our judgment in Civil Appeal Nos.
3615-3618/2002.