Dheeraj Kumar v. State of Rajasthan

HON'BLE MR. JUSTICE MN BHANDARI Mr Surendra Meel Mr Naveen Dhuwan Mr Tanveer Ahmed Mr Dilip Singh Rurka Mr RD Meena Mr Raj Kumar Kasana Mr Om Prakash Sheoran Mr RS Meena Mr Rajneesh Gupta Mr Vivek Goyal 5 Mr Samay Singh Mr Dileep Sinsinwar Mr SL Kumawat Mr Satyapal Poshwal Mr BR Vashishtha Mr HC Mourya Mr DV Tholia Mr Basant Singh Chhaba Mr Rahul Tiwari Ms Sunita Vashishtha Mr Imran Khan - for the petitioners Mr BS Rajawat, Dy Government Counsel – for the State BY THE COURT: This bunch of writ petitions has been taken up for final hearing with the consent of learned counsel for parties and hence decided by this common order. The respondents issued an advertisement dated

14.10.2010 calling for application for the post of Constable (General), Constable (Driver), Constable (Band), Constable (Horse rider) and Constable (Operator) for different districts and establishments. All the petitioners submitted application in the prescribed proforma other than petitioner No.5 in SBCWP 6 No.821/2011. Application forms of petitioners were rejected by the respondents as they failed to fill up all the columns therein. Some of the petitioners failed to fill up column No.9 of Educational Qualification, few others column No.11 – Name of Category (caste) and column No. 13 – Criminal case particulars or debarred by any Selection Board/State Public Service Commission in previous selection. On rejection of their candidature, all the petitioners approached this court and, thereupon, an interim order was passed directing respondents to consider candidature of the petitioners for the written examination though it was clarified that their result may not be declared.

In few cases, further direction was given to allow the petitioners for physical examination but result of all the petitioners was ordered to be with-held and was to be declared save with the permission of the court. Learned counsel for petitioners submit that column No.9 pertains to educational qualifications of a candidate, whereas, column No.11 is regarding caste of the candidate. Column No.13 is for criminal case or debarring candidate by any selection board/ State Public Service Commission in the selection. Petitioners bona fide filled up the form and all the petitioners marked column 9 except one in SB Civil Writ Petition No. 920/2011. In fact, majority of the petitioners either failed to fill up column 11 or column 13. So far as mistake in not marking column 7 11 is to indicate the caste. It is submitted that certificate to this effect was attached along with the application form thus it was in compliance of column 11.

Thus, the caste certificate attached with the application forms should have been taken into consideration by treating it to be a bona fide mistake of the candidate concerned. Learned counsel for petitioners, alternatively, submit that in absence of filling up of column indicating caste, a candidate should have been considered in general category but his form should not have been rejected out-rightly on that ground. So far as column 13 is concerned, it is urged that language of the aforesaid column was not so clear to be understood by a common person as everyone is not aware of meaning of the word 'challan', hence, under this confusion, column could not be filled up. In absence of filling up of column 13, it should have been presumed that they have marked column indicating that no criminal case is pending against them or they have not been debarred in the examination by any State Public Service Commission or selection board as per column 13(b).

If any of the petitioners are facing criminal trial on filing of the charge sheet or he has been debarred in selection by the board or the Public 8 Service Commission then taking it to be a case of concealment / suppression of material facts, respondents could have denied appointment to such petitioner/s but for those who are not facing any criminal trial or have not been debarred by any selection board, their candidature should have been considered. In all circumstances, rejection of the form is not proper. It is further stated that in few cases, candidates signed the application form at one place instead of two places but then it is again a small irregularity. Likewise, one or two petitioners did not put their thumb impression in the space meant for but then it has no consequence because their thumb impression were not taken during the course of selection and, if taken, then they are ready to give their thumb impression now so as to get it examined to find out as to whether any candidate indulged in impersonation.

As such, respondents may consider candidature of the petitioners, more so when they appeared in the written and physical test under interim order of this court and stand in merit. On the other hand, learned counsel for respondents submits that non-filling of the application forms result in its rejection. The Director General of Police, Rajasthan had issued circular dated 29.10.2010 clarifying the aforesaid and, therein, at column No.6, 7, 10 and 11 it is mentioned that if one will fail to 9 fill up the required column then application of such a candidate can be rejected. Respondents, accordingly, rejected the application in consonance to the aforesaid circular. In absence of indicating as to whether a candidate belongs to reserve caste or general caste, it was difficult for the respondents to ascertain his category and thereby rejection of the application on that count cannot be said to be illegal.

Same way, if the candidate failed to give details as to whether a criminal case is pending on filing of the “challan” or as to whether he had been debarred by Public Service Commission or selection board in any selection, he has deliberately suppressed material fact, hence, rejection of his form is justified and is otherwise as per the circular dated 29.10.2010, apart from similar condition mentioned in para 7(v) of the advertisement. It is further submitted that column No.9 pertains to educational qualification of the candidate. One petitioner failed to fill up the same hence his form was rejected. So far as not putting thumb impression on application form or not signing it at two places is concerned, it also resulted with the same consequence. Petitioners were accordingly debarred to appear in the selection by rejecting their application forms. 10 Respondents thus have not committed any illegality in issuing a list of candidates who were not found eligible to appear in the selection, however, this court allowed all the petitioners to appear in the written examination by interim order, directions were accordingly carried out.

Petitioners were then allowed in physical test but that too was in the garb of the interim order passed by this court. However, no equity can be claimed based on the interim order passed by this court and even if petitioners have appeared in the written examination and even qualified the same, they are not entitled for any relief. I have considered rival submissions of learned counsel for parties and scanned the matters carefully. Since it is a case where petitioners failed to fill up certain columns of the application forms resulting in denial of call letters to them for appearance in the written examination followed by physical test. It would be thus relevant to quote columns 9, 11 and 13 of application form for ready reference, which are quoted thus - “9. शैक्षिणक योग्यता..............................................

11.वगर् का नाम ( )लगाय(cid:7286) अनुसूिचत जाित अनुसूिचत जनजाित सहिरया आिदम अन्य िपछड़ा वगर् िवशेष िपछड़ा वगर् सामान्य वगर् 11 टीएसपी क्षेतर् िनवासी भूतपूवर् सैिनक राज्य कमर्चारी पहाड़ी क्षेतर् िनवासी उत्कर्(cid:7399) िखलाडी कतर्(cid:7390) िनवर्हन म(cid:7286) मारे गए पुिलसकम(cid:7278) के आिशर्त

13.आपरािधक िववरण/परीक्षा अथवा बोडर् से िनष्कािषत (डीबार) (यिद कोई हो तो ( ) लगाएं)- (क) क्या आपके िवरु(cid:7373) िकसी न्यायालय म(cid:7286) िकसी आपरािधक पर्करण म(cid:7286) पूवर् म(cid:7286) चालान पेश हुआ है हाँ नह(cid:7277) (ख) क्या आपके िवरु(cid:7373) कभी राज्य सेवा आयोग अथवा भात(cid:7278) बोडर् (cid:7367)ारा िनष्कािषत िकया गया है हाँ नह(cid:7277) यिद उपरोक्त म(cid:7286) से िबदु संख्या "क" का उ(cid:7275)र हाँ है तो एफआईआर नंबर, िदनांक, धाराएं, थाना, िजला, व पर्करण की वतर्मान िस्थती अंिकत करे. (यिद आवेदन करने के बाद भी आपके िवरु(cid:7373) न्यायालय म(cid:7286) कोई आपरािधक कायर्वाही की जाती है तो उसकी सुचना तत्काल सम्बंिधत िजला/यूिनट/बटािलयन को िदया जाना आवयशक है.” perusal of column 9 shows that applicant was required to detail out his educational qualification, whereas, column 11 provides for marking column of caste to which candidate belongs and column 13 provides for detailing out about the criminal case or debarring the candidate by any selection board/ Public Service Commission.

One petitioner failed to fill up column 9, others column 11 and 13 of the application form apart from failure of few petitioners to sign the form at two places and in other cases to put thumb impression. Result thereof was that none of the petitioners were given call letter treating it to be a case of submission of incomplete application form, thus rejected. 12 The moot question for consideration is as to whether submission of incomplete application form may result in rejection of candidature of the applicant and as to what is the effect of not filling up columns 9, 11 and 13 of the application form? Coming to the first question, it is, no doubt, true that submission of incomplete application form may result in rejection thereof. So far as column No.9 is concerned, it pertains to educational qualification. The aforesaid column is not difficult to understand. Thus, if a candidate failed to fill up the aforesaid column then it has to be considered as his lapse and he cannot be benefited for the aforesaid.

The qualification of the candidate is a determining factor regarding his eligibility thus needs to be filled for scrutiny of the eligibility of the candidate. Therefore, lapse of the candidate in that regard cannot be ignored. In such circumstances, rejection of the application form by the respondents cannot be termed as improper. Hence, all those petitioners, who failed to fill up column No.9 of the application form cannot now take benefit of their default. The fact, however, remains that those petitioners have been permitted to appear in the selection process by the interim order of this court hence it would be proper to direct the respondents to examine their matter, as to whether the lapse of 13 petitioners, who failed to fill up the column No.9, should result in rejection of the application form or such lapse can be condoned if the candidate subsequently attached documents of educational qualification and is otherwise eligible.

Accordingly, I deem it proper to hold that decision of the respondents to reject the application forms in absence of filling up column No.9 cannot be said to be illegal but, at the same time, respondents may consider that now in the facts and circumstances of the case, where petitioners have qualified the selection, their lapse can be condoned or they should be debarred from selection. The government would be free to review its decision taking into consideration that in case of rejection of application form, they would be loosing meritorious candidates. So far as column No.11 is concerned, it pertains to declaration of category to which candidate belongs. The aforesaid column is not determining factor regarding eligibility of a candidate but it only determines as to whether a candidate is entitled for reservation or not i.e. as to whether a candidate falls in the category which is to be provided reservation.

Looking to the aforesaid, lapse in not marking the column No.11 should not have been treated so fatal so as to reject the application form. The realistic approach of the respondents could have been to treat such petitioner as general caste candidate and to consider his 14 candidature accordingly. Even the guidelines issued by the government on 29.10.2010 does not show that in absence of filling up of the column of the forms, it will result in rejection automatically. The guidelines only provides that “it may result in rejection of the form”. The use of the word “may” shows that condition of the guidelines/circular as well as the condition in the advertisement is not in the mandatory form but is directory in nature. Looking to the aforesaid, though non-filling up of the column No.11 is also a lapse of the candidate but, in the peculiar facts of the case, it should not have resulted in rejection but such candidate should have been penalised by treating him to be general caste candidate even if he belongs to reserve caste because lapse of the candidate cannot be condoned entirely.

This is more so when the caste certificate or any of the documents were not to be attached along with the application form, rather, documents were to be checked at the time of physical test as is provided in the advertisement. It has been agreed by most of the learned counsel that petitioners may be treated as general caste candidate keeping in mind their lapse. Thus, I am of the opinion that non-filling up of column No.11 should result in treating the candidate in the general category in the facts of this case where all the petitioners have been permitted to appear in the selection by interim order of this court. The direction herein, may however not be construed or be understood to hold that non-filling up of the form completely cannot result in its rejection in all circumstances. 15 So far as column 13 is concerned, it is material because the law laid down by the Hon'ble Supreme Court makes a candidate ineligible if he has suppressed certain material information i.e. pendency of criminal case or debarring in previous selection.

The petitioners who have failed to fill up the aforesaid column to inform as to whether a criminal case against him is pending after filing of the charge sheet and as to whether he was ever debarred to appear in the selection by any Public Service Commission or recruitment board. However, it cannot be ignored that language used in the form needs an information as to whether a 'challan' has been filed against the candidate. The word 'challan' is not such a word which can be understood by a common person hence, few candidates could not mark the column accordingly. In the facts aforesaid, respondents should have taken it to be a case giving information in negative about pendency of criminal case or debarring because in case of marking the column with 'yes' a candidate was required to give details and, otherwise, if a candidate has not marked the column despite pendency of the criminal case or debarring in selection then, taking it to be a case of suppression, petitioners may be denied appointment.

The aforesaid proposition has been agreed even by learned counsel for 16 petitioners also. Accordingly, I hold that the candidate should have filled the column No.13 and non-filling up of the same is treated to be lapse on his part but taking present case to be peculiar one, where the word 'challan' may have created confusion in the minds of few petitioners out of many, justice would be done if respondents treat the aforesaid column to be “nil” and make verification of the antecedents of the candidate concerned. If any of the petitioners is found involved in the criminal trial after 'challan' or previously debarred by any state public service commission or selection board, then to treat such a case of suppression/ concealment of material fact, candidature of such a candidate can be rejected on the aforesaid ground. Aforesaid will take care of those who have deliberately not filled the aforesaid column and will save the innocent.

The last issue is regarding signing of application form at one place instead of two places and not putting thumb impression on the space provided therefor. In fact, aforesaid is not serious lapse because if the form is looked into then two signatures are required and if one has failed to sign the declaration part or at the upper portion of the form then it should not result in 17 rejection of the application form because one signature exists for verification but not putting thumb impression is a lapse because thumb impressions are required for matching it subsequently at any appropriate stage to avoid a case of impersonation. The column is clearly visible having no confusion therein. Thus, if any of the candidates failed to put thumb impression, he cannot be treated at par with that who failed to sign at two places though non-signing of he form at two places is also a lapse but it cannot be said to be a very serious lapse because one of the signatures of the candidate exists on the form thus can be matched at any subsequent stage.

However, if one has not put his thumb impression on the form then question of matching it subsequently does not arise. Thereby, a candidate who failed to put thumb impression on the form has rightly been debarred from selection. In view of discussion made above, it becomes clear that incomplete application form can be rejected by the respondents as otherwise coming out from para 6, 7, 10 and 11 of the circular/ guidelines dated 29.10.2010, which are quoted thus - “6. आवेदन पतर्/पर्वेश पतर् के क(cid:7298)लम संख्या - 1 म(cid:7286) िजला / यूिनट/बटािलयन अंिकत नह(cid:7277) होने या पोस्टल आडर्र अन्य क(cid:7298) संबोिधत नह(cid:7277) होने पर िवज्ञि(cid:7385) के िबन्दु संख्या - 7 (v) के अनुसार आवेदन पतर् अस्वीकार िकया जा सकता है.

आवेदन पतर् के क(cid:7298)लम संख्या - 13 म(cid:7286) खली छोड़ने अथवा अपूणर् भरने की िस्थती 18 म(cid:7286) िवज्ञि(cid:7385) के िबन्दु संख्या - ७ (vi) के अनुसार आवेदन पतर् िनरस्त िकया जा सकता है.

आवेदन पतर्/घोषणा दोन(cid:7298) ही स्थान पर आवेदक के हस्ताक्षर होने आवश्यक है. ऐसा नह(cid:7277) होने पर िवज्ञि(cid:7385) के िबन्दु संख्या - 7 (vi) के अनुसार आवेदन पतर् को अपूणर् मानकर िनरस्त िकया जा सकता है.

आवेदन पतर् के क(cid:7298)लम संख्या - 2,3 एवं 11 कर्मश: शाखा, पद एवं वगर् के बॉक्स म(cid:7286) िटक नह(cid:7277) होने पर िवज्ञि(cid:7385) के िबन्दु संख्या - ७ (व) के अनुसार आवेदन पतर् को अपूणर् मानकर िनरस्त िकया जा सकता है.” Perusal of the aforesaid shows that incomplete application forms can be rejected by the respondents but language does not provide automatic rejection of the form in that eventuality. The language of the relevant para suggest about discretionary power of the government to reject the form, which has been exercised herein against the petitioners. Learned counsel for respondents has also made a reference of para 7(vi) of the advertisement, which is also to be considered thus quoted hereinbelow - “7(vi)संबांिधत िजला/यूिनट (cid:7367)ारा पिरक्षण के उपरांत पूणर्/सही पाये गए आवेदन पतर् वाले अभ्यिथय(cid:7298) को िलिखत परीक्षा हेतु पर्वेश पतर् डाक (cid:7367)ारा भेजा जावेगा.” Perusal of the aforesaid along with the columns also shows that call letter is to be sent to the candidates who has given complete and correct application form. Thus, in view of the 19 aforesaid, action of the respondents in rejection of incomplete forms cannot be said to be improper but it is a case where the petitioners were permitted to appear in the selection followed by physical test and they could qualify in both though their merit position has not been disclosed, hence, taking it to be a case in exception, matter may be decided by the government after considering the judgment of the Apex Court in the case of “State of Haryana & ors Vs Dinesh Kumar” reported in (2008) 3 SCC

Relevant paras 3, 4, 6, 31, 32 and 33 of the judgment are quoted thus - “3. The respondent in the first of these two appeals and the appellants in the other appeal applied for appointment as Constable-Drivers under the Haryana Police and submitted their respective application forms, which contained two columns, namely, 13(A) and 14, which read as follows:- 13(A): Have you ever been arrested? 14: Have you ever been convicted by the Court of any offence?

As far as the respondent in SLP(C) No. 1840 of 2007, Dinesh Kumar, is concerned, he answered the said two queries in the negative. Subsequently, during verification of the character and antecedents of the said respondent, it was reported that he had been arrested in connection with a case arising out of FIR No. 168 of 13th October, 1994, registered at Kalanaur Police Station under Sections 323/324/34 Indian Penal Code. He and his family members were ultimately acquitted of the charges framed against them on 6th 20 January, 1998, by the Judicial Magistrate, Ist Class, Rohtak. The appellant, however, alleged that the respondent had concealed these facts from the Selection Committee and had not correctly furnished the information in columns 13(A) and 14 of the application form submitted by him for recruitment to the post in question. Before the High Court, it was 6. contended by the respondent that in connection with the aforesaid FIR No.

Accordingly, although, we are of the view that the legal position as to what constitutes arrest was correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we confirm the order passed in Dinesh Kumar's case and extend the same benefit to Lalit Kumar and Bhupinder also.

In the result, the Civil Appeal arising out of SLP(C) No. 1840 of 2007 is dismissed, while the Civil Appeal arising out of SLP(C)No.14939 of 2007 is allowed. The Judgment of the High Court dated 22nd September, 2005, impugned in the said appeal, is set aside and the concerned respondents are directed to take steps to issue appointment letters to the appellants in the said appeals subject to of other conditions by them. It is also made that the appellants will be deemed to have been appointed as Constable-Drivers with effect from the date, persons lower in merit to them were appointed. However, while they will be entitled to the notional benefits of such continuous appointment, they will be entitled to salary only from the date of this judgment on the basis of such notional benefits.” Perusal of the paras referred to above shows that bona fide mistake of a candidate needs to be condoned though in the aforesaid case the candidate did not fill up the column correctly but the fact remains that bona fide mistake of a candidate can be ignored. Looking to the over all facts and circumstances of the 22 case, I dispose of all these writ petitions with the following reasoning and directions - A candidate who failed to submit the application form by not marking the columns may suffer rejection of his application form at the discretion of the government looking to the circular/ guidelines and the condition of advertisement referred to above thus action of the government to reject the application forms of the petitioners cannot be said to be improper in the facts and circumstances discussed above. However, looking to the peculiar facts of these cases, where columns No. 11 and 13 do not relate to eligibility and petitioners were permitted to appear in the written examination and have qualified the selection upto physical test thus to avoid sacrifice of meritorious candidates in the aforesaid background, following directions are given -

The candidature of the petitioners, who failed to fill up column No.9 regarding educational qualification, have rightly been debarred from selection by rejecting their application forms, however, since this court vide interim order permitted such candidates to appear in the selection, the respondents are directed to consider as to whether above lapse can be condoned if documents in support of educational qualification subsequently furnished shows such petitioner to be qualified. This is more so 23 when requirement of the qualification for the post of Constable in RAC and MBC Battalion is at the level of Class-VIII passed and in other cases, secondary or senior secondary. Necessary decision on the aforesaid aspect may be taken by the government within a period of one month from the date of receipt of copy of this order and result thereof be conveyed to the petitioners concerned even if it results unfavourable to them.

So far as non-filling up of column No.11 is concerned, it pertains to category to which one belongs. A candidate who failed to fill up aforesaid column has committed lapse but it is not that serious as non-filling up of column No.9 because educational qualification determines eligibility of the candidate thus needs to be filled up. However, same is not the position regarding column No.11. Marking of column for caste/ category only makes one entitled for reservation if he is falling in reserved category. Looking to the aforesaid, this lapse of the petitioners should result in treating him to be a general caste candidate in all circumstances even if they belong to reserve category because such a candidate failed to fill up the column at the initial stage and caste certificates were not to be furnished along with the application form but were to be submitted subsequently. Hence, any candidate belonging to the reserve category cannot be benefited by his own default but needs to be 24 penalised by treating him to be a general caste category candidate as non-filling up of the form may otherwise result in rejection of the application form. In view of the aforesaid, learned counsel for petitioners agreed to treat concerned petitioners as general category candidates. Accordingly, in the facts of these cases, rejection of application form on the ground of non-filling up of column No.11 is not held to be valid but those candidates would be treated in the general category and if they stand in the merit list of general category candidates, may be given consequential benefits.

So far as column No.13 regarding criminal case/ debarring from examination by any state public service commission or selection board is concerned, it is quite material because declaration regarding pendency of criminal case or debarring in previous selection need to be given as concealment thereof can result in non-grant of appointment even if candidate stands in merit. Accordingly, it is a lapse on the part of the petitioners in not filling up the aforesaid column. But, again, it does not result in ineligibility of the candidate at the initial stage. Thus, on the facts of these cases, respondents are directed to treat the aforesaid column No.13 as marked in negative form and, accordingly, if any of the petitioners stand in the merit, his antecedents may be verified. On verification, if it is found that 25 criminal case is pending after challan or that candidate has been debarred in the selection by the board or commission then, treating it to be a case of concealment of material fact, such petitioner may be debarred to get appointment. Learned counsel for petitioners have agreed to the aforesaid and submitted that if any of the petitioners is facing criminal case or debarred in previous selection, such petitioner may be debarred to get appointment even if he stands in merit. Learned counsel for respondents submits that verification of the candidates would be made in view of the directions aforesaid. In the aforesaid circumstances, rejection of the application form of this category of petitioners is not held to be valid.

4. The candidature of the petitioners, who failed to put thumb impression in the box provided in the application form, have rightly been debarred by rejecting application form thus not entitled for any relief. The thumb impression is required to avoid possibility of impersonation in the selection thus needs to be put by the candidate and aforesaid lapse cannot be condoned as thumb impression can be taken by the respondents at any point of time during process of selection to avoid impersonation.

Last issue pertains to non-signing of application form at two places. In my opinion, aforesaid should not have resulted in 26 rejection of the form because from one signature also necessary verification can be made and all the counsel for petitioners admit that whoever failed to put his signatures above the declaration may be treated to have signed the declaration part also. In view of agreement by the learned counsel for petitioners, learned counsel for respondents submitted that consideration of candidature of such candidate would however not result in appointment automatically but would be subject to their getting merit position. In view of the aforesaid, rejection of application form on the aforesaid ground is held to be invalid but appointment would be subject to their merit position and finding fit in the medical examination and also subject to their police verification as indicated in the previous paras, if applicable to such petitioner.

The candidature of petitioner No.5 in SB Civil Writ Petition No.821/2011, who failed to fill up the application form, has rightly been rejected hence aforesaid writ petition so as the stay application, so far as they relate to petitioner No.5, are dismissed. The directions aforesaid may be complied with by the respondents within a reasonable period. It is, however, made clear that directions aforesaid have been issued in the peculiar facts and circumstances of these cases thus should not be treated as precedent in all the cases to come. 27 With the aforesaid, all the writ petitions and stay applications, except one which has been dismissed, are disposed of. bnsharma (MN BHANDARI), J. All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed. (BN Sharma) PS-cum-JW