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

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)

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