RAJASTHAN PUBLIC SERVICE COMMISSION AND ANR.versusHARISH KUMAR PUROHIT AND ORS.

                                                                                     l

A       RAJASTHAN PUBLIC SERVICE COMMISSION AND ANR.
                                          v
                   HARISH KUMAR PUROHIT AND ORS.

                                  APRIL I. 2003

B           [SHl\!ARAJ V. PATIL AND ARIJIT PASAYAT, JJ.]


         Service law:

          Recruitment-Post of Munsif Magistrate-Vacancies ,;armarked for
C general and reserved categories--Non-availability of certain number of
  candidates in reserved categories-Claim to fl/I the reserved category seats by
  general categwy candidates--High Court's direction to call general category
  candidates fi1r interview three times the number of posts assuming increase in
  the number of general category posts due to non-availability of reserved
D catcgo1y candidates-However. further direction lo fl// up only earmarked
  vacancies in general category and to cany forward the reserved category
  vacancies--On appeal, he/d-h'igh Court's direction was self contradictory
  and it defied iogic--Rajasthan .Judicial Service Rules, 1955.

          Precedent:
E
           Earlier decision of Division Bench holding the field-Subsequent Co-
    ordinate Bench doubting the decision-in such case the only course open is
    to refer the mailer to larger Bench-Judicial propriety.

          An advertisement to recrnit 116 munsif Magistrates was issued, out
F   of which S9, 24, 19 and 14 posts were for the General, OBC, SC and ST
    categories respectively. The candidates numbering three times the number
    of posts advertised in each category were eligible to be called for interview.
    Commission issued interview letters to 302 candidates out of which 189
    candidates were called for the posts in General category. Respondents filed
G   writ petition before High Court seeking direction to consider more
    candidates from general category as per the posts available, on the ground
    that each of the respondents had qualified in the written examination; that
    in case of non-availability of SC and ST candidates the available scats were
    to be filled up by candidates belonging to general category and hence the
    Commission had to call 210 1:andidates by treating the number of posts
H                                       206
           RAJAS THAN PUBLIC SERVICE COMMISSION v. H.K. PUROHIT         207
available in the general category to be 70 (i.e. 59 as originally fixed and    A
11 on account of non-availability of candidates in SC and ST categories).
High Court allowed the appeal directing the Commission to call not less
than 210 candidates from the general category. However, it directed to
fill up only 59 vacancies in the general category and carry forward the
vacancies of Scheduled Tribes.
                                                                               B
      In appeal to this Court appellant- Service Commission contended
that there was no automatic increase in the vacancies in the general
category from 59 to 70; that the directions of the High Court are self-
contradictory. It pointed out that results had been published and
appointments had been made; that even if the directions of the High Court      C
to call 210 candidates for the interview would have been complied with,
the writ petitioners would not have come within the zone of consideration;
and that the High Court passing the impugned judgment did not consider
previous judgment passed by another Division Bench of High Court
wherein similar prayers were rejected.
                                                                               D
      Interlocutory applicatiol)S were filed before this Court on the ground
that the presence of applicants belonging fo the OBC and the women
category would facilitate proper adjudication of the appeal.

     Allowing the appeal and dismissing the applications, the Court
                                                                               E
      HELD: I. High Court was not correct in directing that 210
candidates should be called for the interview. 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 to be carried forwarded, there was no
basis to proceed on the assum.ption that they would be de-reserved, thereby    F
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 of increase in the number of posts in general category,
candidates numbering three times the number of posts including assumed         G
inclusions had to be called, the High Court gave the direction which defies
logic. 1212-A; 211-G, HI

     2. A Division Bench dismissed an application containing identical
prayers. By the impugned judgment, another Division Bench took a
diametrically opposite view. It is not that the earlier decision was not       H
    208                   SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A brought to the notice of the subsequent Division Bench hearing the
    subsequent applications. Division Bench hearing the subsequent
    applications did not even refer to the conclusions arrived at by the earlier
    Division B~nch. The earlier decision of the Division Bench is binding on a
    Bench of coordinate strength. If the Bench hearing matters subsequently
B   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. [212-B-DI

          Stale of Tripura v. Tripum Bar Association and Ors., 11998! 5 SCC
    637, relied on.

C         3. Since the interveners 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,
    there is no merit in the application for intervention. 1211-E, Fl

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3615-3618
D of 2002.
         From the Judgment and Order dated 20.12.200 I of the Rajasthan High
    Court in D.B.C.W. Nos. 4622, 4673, 4674 and 4675 of 2001.

                                       WITH
E         C.A. No. 3614 of 2002

        Sunil Kr. Jain. Manish Kumar, Ansar Ahmad Chaudhary, Ms. Sandhya
    Goswami (NP) and Ms. Shobha for the appearing parties.

          The Judgment of the Court was delivertd by
F
          ARIJIT PASAYAT, J.

          CIVIL APPEAL NOS.3615-361812002

          In these appeals by Rajasthan Public Service Commission (in short 'the
G   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.

          Synoptical resurnption of the factual position, almost undisputed is as
    follows:-                                                    '
H
    RAJASTHAN PUBLIC SERVICE COMMISSION v. H.K. PUROHIT [PASAYAT, l] 209

       On l .6.200 l an advertisement to recruit 116 Munsif Magistrates was A
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 B
numbering three times the number of posts advertised 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 C
had to be called for interview.

      Four writ petitions were filed at Jodhpur Bench of the Rajasthan High
Court They were disposed of on 20th December, 200 l by the impugned
common judgment In the writ petitions the petitioners had sought for the
following directions:                                                       D
       "(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 of the
       advertisement;
                                                                               E
       (b) by an appropriate writ, order or direction, the ·Respondents may
       kindly be directed to implement the condition-2 of the advertisement
       for filling 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    F
       case may kindly be passed in favour of the Petitioner;


       (d) writ petition filed by the Petitioner may kindly be allowed with
       costs."
                                                                               G
       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 sea~s 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 l l on account of non- H
    210                    SUPREME COl'RT REPOR rs                     [20031 3 S.C.R.

A 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-n~serve or carry forward in case of non-
B   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, w. : allow all the four writ petitions. The
            Respondent Commission is direckd to call not less than 210 candidates
            from the General Category for interview instead of 189. We make it
c           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,
            th is wi 11 not prevent the appropriate Authorities to take a decision in
            accordance with the rele~ant rules, particularly Clause 3 of Schedule
            II of R.J.S. Rules, to fill up only 59 vacancies in the General Category
D           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
            ta~en before 4. I .2002, the liberty given shall stand vacated. Any
            such decision will not affect the merit of selection from the expanded
            zone under this order."
E
          The challenge. as noted above. m these appeals is to the aforesaid
    direction.

           Learned counsel for the appellant-Commission submitted that the
    directions as noted above are indefensible. There was no automatic increase
F   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
G   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 ordt:r dated 27.12.2001. this Court has permitted the Commission to
    complete the interview as scheduled and prepare and finalise the select list
    for 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 candidate
H   that no select list shall be prepared and published for the remaining 11 posts
          RAJASTHAN PUBLIC SERVICE COMMISSION v. H.K PUROHIT [PASAYAT, J] 211

     of Scheduled Tribes which may be transferred to the general category, ifthe        A
     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 ou't
     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            B
     have come within the zone of consideration. It was pointed out that another
     Division Bench considering similar prayers had by judgment dated I3.12.200 I
     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.                                     c
           There is no appearance by the private respondents in spite of the service
     of notice except by one Devilal Mothsra who is respondent no. I in CA No.
     3618 of 2002.

           An application for intervention has been filed by certain candidates (in     D

-·   IA No. 112002 in CA Nos. 3615-3618/2002) seeking permission to intervene.

             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          E
     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.
                                                                                        F
           As rightly submitted by learned counsel for the appellants, the directions
     given by #le 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 G
     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.                                     H
    212                    SUPREME COllRT REPORTS                    [2003 [ 3 S.C.R

A          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.

          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
B   Bench dismissed an application containing identical prayers. Even before the
    ink was dry on the judgment, by th<: 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 reforence 11as been made by the submissions
C   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 coordinate 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
D   larger Bench.

          The position was highlighted by this Cou1i in a three-judge· Bench
    decision in Stole of Tripura v. Tripura Bar Association and Ors., [1998] 5
    sec 637 in the following words:
E               "We arc of the view that the Division Bench of the High Court
           which has delivered the impugned judgment being a coordinate Bench
           could not have taken a view different from that taken by the earlier
           Bench of the High Court in the case of DurgaJas Purkayastha v.
           Hon'ble Gauhati High Court, (1988) I Gau LR 6. If the latter Bench
           wanted to take a view diffrrent than that taken by the earlier Bench,
F          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
G          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
           ofth1: 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.''
H