SINGHVI, J. - (1.) THIS writ petition involves interpretation of Rule 8 (2) of the Rajasthan Recruitment of Dependents of Government Servants (Dying While in Service) Rules, 1975 (hereinafter referred to as 'the Rules' ).
(2.) THE petitioner's father Girdhari Lal was working as a Sub- Inspector in the Police Department of the Government of Rajasthan. He died on 28. 2. 1987 while he was in active government service. THE petitioner, who is the eldest son of late Girdhari Lal, made an application in February, 1988 to the Director General of Police, Jaipur, for appointment on the post of Sub- Inspector, under the Rules. According to the petitioner, he possessed qualification of Graduation in Commerce and therefore, fulfilled minimum requirement for appointment on the post of Sub-Inspector as laid down in the provisions of the Rajasthan Police Subordinate Service Rules, 1974. THE petitioner was subjected to physical fitness test in the Police Lines, before the Reserve Inspector, at Jaipur and his application was sent to the Home Department with the stipulation that he is physically fit for the post of Sub-Inspector and he fulfilled the qualifications. THE Government of Rajasthan in the Home Department sent a letter dated 20. 5. 1988 (Ex. 1) to the Director General of Police for appointment of the petitioner as Sub-Inspector under the Rules. Office of the Director General of Police issued a letter dated 8. 6. 1988 directing the petitioner to present himself for medical examination before the Medical Officer Incharge, Government Satellite Hospital, Sethi Nagar, Jaipur on 13. 6. 88. THEreafter, vide letter dated 5. 9. 1988 issued under the signature of the Dy. I. G. P. (Hq.) the petitioner and one Rajendra Aboosar were directed to appear before the Director General of Police for interview for the purpose of appointment on the post of Sub- Inspector. THE Petitioner has stated that the Dy. Secretary to Government, Home (Gr. l) Department, had written a D. O. letter dated 6. 10. 88 that the petitioner fulfilled the requisite qualifications for appointment on the post of Sub-Inspector and there was no justification for subjecting him for interview. By the aforesaid D. O. letter, the Deputy Secretary to Government had requested the Director General of Police to issue appropriate order of appointment of the petitioner in terms of the earlier direction issued by the Government. THE petitioner has stated that despite this letter of the Home Department, the Director General of Police issued a letter to him calling upon him as to whether he was prepared to serve as an L. D. C. THE petitioner was directed to send his consent for that purpose. THE petitioner has further stated that he made representation to the Chief Secretary and Home Secretary to Govt. of Rajasthan for appointment on the post of Sub-Inspector of Police and even the Department of Personel had given a clarification against the interviews for the purpose of appointment under the Rules. Even thereafter, the petitioner has not been given appointment on the post of Sub-Inspector and instead he is being forced to accept employment as an L. D. C. The petitioner has challenged his non-appointment on the post of Sub-Inspector on the ground that under the Rules, there is no provision for interview of the candidates and therefore, the Director General of Police had acted without authority of law in subjecting him to interview. The petitioner has asserted that after the directions of the government and the clarification of the Department of Personnel, it was not open to the Director General of Police to have with-held appointment of the petitioner. The petitioner has also stated that he is being subjected to discriminatory treatment, inasmuch as seven persons i. e. Shri Suresh s/o B. D. Tiwari, Devendra Sharma s/o Ghanshyam Sharma, Dharamveer Sharma s/o Devendra Sharma, Vinod Kumar s/o Dhaniram, Smt. Pushpa Vashistha, Smt. Laxmi Kumari Chundawat and Shrimati Vinod Kanwar have been given appointment as Sub-Inspector without subjecting them to interview. According to the petitioner, if others have been appointed as Sub-Inspector without interview, there could be no justification for giving different treatment to the petitioner. This action of the Director General of Police is wholly arbitrary, unreasonable and unjustified. In reply to the writ petition, the respondents have admitted the factum of employment of late Girdhari Lal and his death during the period of service. It is also admitted that the petitioner had submitted an application for appointment under the Rules of 1975. According to the respondents, as per the provisions of Rajasthan Police Subordinate Service Rules, 1974 and Rule 8 (2) of the Rules, a person can always be subjected to interview. Though the petitioner fulfilled all the academic qualifications but during the course of interview, it was found that the petitioner totally lacked aptitude and general awareness expected- of a candidate for the post of Sub-Inspector of Police. Therefore, he could not be given appointment on the post of Sub- Inspector of Police. He was however offered appointment on the post of L. D. C. The petitioner has not conveyed his consent for appointment on the post of L. D. C. The letter dated 22. 10. 88 written by the Inspector General of Police (HQ) to the Commissioner and Secretary to Government, Home Department which has been placed on record as Annexure R-l, shows that the petitioner did not perform well at the time of interview before the Director General of Police. Regarding appointment of some other persons Shri Parihar, learned counsel for the respondents has placed before the court original record of the seven persons whose names have been referred to hereinabove and submitted that these seven persons were appointed between 1976 to 1987 in special circumstances. They are wards/ wives of persons who had been killed in encounter. He further pointed out that from 1988, six persons have been appointed/offered appointment as L. D. C. only after subjecting them to interview. Shri R. C. Joshi, learned counsel for the petitioner has argued that under the rules there is no provision for interviewing a candidate for appointment against a suitable post. The petitioner fulfilled all necessary qualifications for appointment to the post of Sub-Inspector and therefore by subjecting him to interview, there could be no justification for treating him unsuitable for the post of Sub-Inspector. According to the learned counsel for the petitioner, the additional condition of interviewing the candidate could not be imposed, over and above, the provisions contained in the Rules, for the purpose of appointment on the post of Sub-Inspector. According to Shri Joshi, learned counsel for the petitioner, the Rules could not be amended or modified by administrative instructions or by administrative actions. The Director General of Police had acted without jurisdiction in calling the petitioner for interview and then declaring him unfit for the post of Sub-Inspector. Lastly, Shri Joshi, learned counsel for the petitioner, argued that when other seven persons had been given appointment on the post of Sub-Inspector without any interview, there could be no rationale or legal justification for giving different treatment to the petitioner. It was argued that all the dependents of government servants dying while in service constitute one class. They have identical right of consideration for appointment on a suitable post under the Rules. They all must be subjected to same treatment for the purpose of appointment under the Rules. It was argued that the arbitrary departure made by the respondents in the case of the petitioner cannot in any manner be justified. He further submitted that in the light of the directions issued by the government and the clarification of the Department of Rersonnel, it was not open to the Director General of Police to have rejected the candidature of the petitioner for the purpose of appointment to the post of Sub-Inspector on the premise that the petitioner had not been found fit at the time of interview.
(3.) SHRI Parihar, learned Addl. Govt. Advocate argued the case with excellence and submitted that Rule 8 (2) of the Rules clearly contemplate interviewing of the candidates for the purpose of satisfaction that the candidate will be able to maintain minimum standards of work and efficiency expected of the post. This was not a condition made by administrative instructions or by administrative action of any particular authority but was a part of the rule itself. Thus, there was no amendment of the statutory rules by administrative instructions or orders. The Director General of Police had acted in conformity with the provisions of Rule 8 (2) and if at the stage of interview the petitioner has not been found to possess the minimum requisite aptitude for the post of Sub-Inspector of Police, there was every justification for not giving him appointment on the said post. SHRI Parihar argued that even in Ex. 1 dated 20. 05. 1988, Government of Rajasthan in the Home Department had made it clear that before issuing appointment order, it would be ensured that the petitioner fulfills all the requirements of the post such as age, physical and medical fitness and soundness of character etc. as prescribed in the Rules. The Director General of Police had merely acted in conformity with the Rules and has not, in any manner, acted in contravention of the same. Regarding appointment of other persons, SHRI Parihar argued that the seven persons had been given appointment between 1976 to 1987 because of special circumstances. He pointed out that one appointment was made in the year 1976, the other was made in the year 1978, three appointments were made in the year 1982, one in the year 1983 and one in the year 1987. However, all the candidates who were considered for employment under the Rules, after 1987, were subjected to interview. Seven persons were wards/wives of the persons who were killed in encounter during active police service, and therefore, a lenient view was taken in their matter and appointments had been given to them without interview. However, the mere fact that others had been given appointment without interview could hardly denude the competent authority of the power and jurisdiction to subject a candidate to interview who is desirous of appointment under the Rules. SHRI Parihar further submitted that a discretion is vested with the competent authority under Rule 8 (2) and unless it can be said that the discretion was exercised wholly arbitrarily or was exercised with malice, the petitioner cannot claim that he has been subjected to discriminatory treatment. According to the learned Additional Government Advocate, no allegations of malafide have been levelled by the petitioner against the Director General of Police who had interviewed him. The Director General of Police is the Head of the Deptt. and he certainly knows the functional requirements of the post of Sub-Inspector of Police. At the time of interview it was found that the petitioner does not possess the aptitude and comprehensive knowledge expected of a candidate for the post of Sub-Inspector of Police. The petitioner gave poor account of himself before the Director General of Police and therefore, it was thought fit, in public interest, not to appoint him on the post of Sub-Inspector. The post of Sub-Inspector is very important in the hierarchy of police organisation. A Sub-Inspector of Police has to carry various responsibilities. He has to work as Station House Officer. Therefore, a person who lacks in aptitude and general awareness, cannot fit in the role of Sub-Inspector of Police. The Rules of 1975 were promulgated by the Governor of Rajasthan in exercise of powers conferred by proviso to Article 309 of the Constitution of India. These rules have been described as special rules regulating the Recruitment of the Dependants of Government Servants dying while in service. The entire scheme of the Rules indicates that they have been framed with a view to give employment to the dependants of the government servants, dying while in service. It is nothing but a sort of concession given to the dependants of the deceased government servants. Rule 2 of the Rules contains definition clauses. Rule 3 specifies the scope of application of the Rules. By virtue of Rule 4, overriding effect has been given to these Rules. Rules 5 and 6 deal with the eligibility etc. of the dependant for employment. Rule 7 lays down the procedure where more than one members of the family seeks employment. Rule 8 makes provision for relaxation of age and other requirements. This rule can appropriately be quoted below: - "8. Relaxation for age and other requirements: - (1) The candidates seeking appointment under these rules must not be less than 16 years at the time of appointment. In the cases in which the wife of the deceased government servant being the only candidate found qualified and eligible for such employment there shall be no maximum upper age limit. (2) The procedural requirements for selection, such as written test, typing test or interview by a Selection Committee or any other Authority, shall be dispensed with, but it shall be open to the Appointing Authority to interview the candidate in order to satisfy that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post or to prescribe any condition, Jf considered necessary, for acquiring any training or proficiency e. g. typing speed or any other qualifications etc. within a reasonable period, after such employment under these Rules. " A perusal of rule 8 (2) shows that by virtue of first part, the procedural requirements of selection such as written test, typing test or interview by Selection Committee or any other appointing authority, have been dispensed with. However, in the second part, a discretion has been conferred on the appointing authority to interview the candidate in order to satisfy that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post, or to prescribe any condition, if considered necessary, for acquiring any training or proficiency for example typing speed or any other qualifications etc. within a reasonable period after employment. The second part of the rule unquestionably confers a discretion on the appointing authority to interview the candidate. Validity of this part of the rule has not been challenged by the petitioner and in my opinion rightly so. This discretion has to be exercised by the appointing authority for its own satisfaction that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post. Thus, there is a statutory provision contained in the rules which confers power on the appointing authority to interview the candidate. In the face of this specific statutory provision, the argument of the learned counsel for the petitioner that the Director General of Police had acted beyond the provisions of the Rules, merits rejection. In the face of this rule, it must be held that no amendments in the Rules have been made either by administrative instructions or orders or by any administrative decision. Once it is found that the Director General of Police, being the appointing authority, was competent to interview the petitioner, in the light of what has been stated in Annexure R-l, about the performance of the petitioner, it cannot for a moment be argued with any element of justification, that the petitioner has been subjected to arbitrary treatment. If a person is asked to hold a responsible post in the Police Department and he does not have the required aptitude and comprehension for that post, it would have been a serious injury to the public interest if the petitioner had been given appointment on the post of Sub- Inspector. The directions contained in Ex.-1 dated 20. 5. 1988 clearly contained a stipulation that before appointment of the petitioner, requirement of age, qualifications etc. prescribed by the Rules were to be satisfied and in my opinion, the Director General of Police had committed no error in not giving employment to the petitioner on the post of Sub-Inspector of Police, once he had found that the petitioner had failed to give satisfaction at the stage of interview. ;