STATE OF RAJASTHAN Vs. KEDAR SON OF SHRI RAJPAL SINGH, BY CASTE GURJAR, AGED ABOUT 26 YEARS, ADDRESS: VILLAGE KAYRIKA, POST CHULHANS, TEHSIL DEEG, DISTRICT BHARATPUR

JUDGEMENT

(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.