MANOJ KUMAR GARG, J. - (1.) Heard learned counsel for the parties.
(2.) Undisputed position is that the admit card of the appellant requiring him to be present at Jaipur to undergo the physical efficiency test on 7.9.2018 was uploaded in the evening of 6.9.2018. The appellant resides in village Nokha district Bikaner and had to travel over-night to reach Jaipur.
(3.) On 14.11.2018 allowing D.B.Civil Special Appeal (Writ) No.1732/2018 Thawara Ram V/s State of Rajasthan and ors. it was held as under:- "1. This special appeal has been preferred by the appellant/writ petitioner against the order dated 22.10.2018 passed by learned Single Judge in S.B.Civil writ Petition No.16279/2018, dismissing the writ petition filed by the appellant/writ petitioner. 2. The facts indispensable for the present adjudication are that an advertisement was issued by respondent No.2 on 25.05.2018 for filling 13142 vacancies for the post of Constables in various districts of the State of Rajasthan. The vacancies for the post in question were district-wise and the appellant/writ petitioner was a candidate in the category of Constable General Non TSP for Sirohi District, where 86 posts of Constable were avaialble to be filled, as per the aforesaid advertisement. The appellant/writ petitioner thus applied for the post of Constable General Non TSP under the OBC Category. 3. The written examination was conducted on 14/15.07.2018, and the appellant/writ petitioner bearing Roll No.4312568 was declared successful on 30.08.2018. The appellant/writ petitioner having been declared qualified in the written examination, he became entitled to participate in the Physical Fitness Test, which includes Physical Standard Test and Physical Efficiency Test. 4. Under the Physical Efficiency Test, the candidates were required to run 5 kilometres within certain time, on the basis whereof, the marks were to be awarded. The appellant/writ petitioner was not given any notice or admit card, and on 4. 09.2018, a Press Note was released by respondent No.3-Superintendent of Police, in the capacity of Member Secretary of the Selection Board for Constable Recruitment, wherein it was mentioned that the candidates, who qualified the written test, are required to appear for the Physical Standard Test/Physical Efficiency Test on 05.09.2018 at 06:00 a.m. at the Rajasthan Police Training Centre, Jodhpur. The said Press Note also indicated issuance of e-admit cards on the website, but the e-admit card was uploaded on the official web portal in the night, and the appellant/writ petitioner, after taking print out of the admit card, immediately started travelling towards Jodhpur, to report to his respective Centre. 5. The appellant/writ petitioner reached Jodhpur in the morning of 05.09.2018 and reported for the Physical Standard Test/Physical Efficiency Test at Rajasthan Police Training Centre, Jodhpur at around 06:00 a.m., as required by the aforementioned Press Note. 6. The appellant/writ petitioner qualified the Physical Standard Test, and thereafter, was required to undergo the Physical Efficiency Test, but since he travelled for about six hours in the previous night, therefore, he missed the 5 kilometres benchmark of the Physical Efficiency Test by 29 seconds, as intimated by the officials concerned. 7. Respondent No.4-Police Commissioner -cum- Chairman, Selection Board for Constable Recruitment, Jodhpur issued a correspondence on 07.09.2018 to the Superintendent of Police, District Sirohi stating therein that since information for conducting Physical Standard Test/Physical Efficiency Test of the candidates was not released in time, therefore, some of the candidates could not appear for the said Test, and due to such delay in uploading of the admit cards of the candidates on the website due to technical error, the information did not reach the candidates in time, therefore, another opportunity to appear for the Physical Efficiency Test from 11.09.2018 to 13.09.2018 was granted to the candidates, who could not appear on the previous occasion. 8. Learned counsel for the writ petitioner/appellant has pointed out that looking to the peculiar circumstances of uploading of the admit cards at late night on 04.09.2018 and holding of Physical Efficiency Test on 05.09.2018 at 06:00 a.m. was an opportunity, which though was given, but cannot be said to be a fair opportunity. 9. Learned counsel for the appellant/writ petitioner has further submitted that since the candidates, who could not appear, have been given another chance in the similarly circumstances, therefore, the present appellant/writ petitioner should also be given another chance. 10. Learned counsel for the appellant/writ petitioner has also referred to the judgment rendered by this Court in Rajesh Kumar and Anr. Vs. The State of Rajasthan and Ors. (S.B.Civil Writ Petition No.13790/2018 decided on 06.10.2018), relevant portion of which reads as under:- "I have considered the submission made by learned counsel for the parties and have perused the material available on record. The facts are not in dispute, wherein, on 30/8/2018 result of the written examination was declared and on 4/9/2018 at 6.00 pm the respondents chose to upload the admit cards calling the successful candidates to appear for PST/PET at 6.00 am on 5/9/2018. A bare look at the admit cards, which have been downloaded by the petitioners and have been annexed with the writ petitions indicate that petitioner Rajesh Kumar downloaded the admit card at 10.07 pm, Dhan Raj at 11.19 pm, Maldev Devasi at 8.46 pm, Lakha Ram Meena at 8.17 pm, Gangesh Meena at 8.16 pm, Gova Ram at 8.51 pm, Rajendra Pal Singh at 10.13 pm and Mahendra Kumar at 8.07 pm etc. and they were required to appear at 6.00 am on the next morning at Jodhpur i.e. they were required to travel from their respective places to Jodhpur and participate in the PET at 6.00 am. The respondents were well aware of the status of the uploading and the kind of opportunity which was provided to the candidates for appearing for PST/PET, which is reflected from the communication dated 7/9/2018 addressed by the Commissioner of Police, Jodhpur, Chairman of the Selection Board, to the Superintendent of Police, Jalore, Pali and Sirohi, Members of the Selection Board, inter alia indicating as under: ...[VARNACULAR TEXT UMITTED]... A perusal of the said communication would reveal that several of the candidates for lack of information in time could not appear for PST/PET and possibly on account of technical reasons of uploading the admit cards on the Police Department's website, they did not receive information in time, therefore, an opportunity in this regard was granted to the candidates, who did not appear. The admission of the respondents regarding the nature of communication sent to the candidates is glaring and it is also apparent that the respondents for reasons best known to them, chose to grant almost no time to the candidates for appearing in PST/PET. Despite specifically putting a query to the learned counsel appearing for the respondents as to what prompted the respondents in holding the PST/PET on such a short notice and why the candidates could not be given sufficient time in this regard, no convincing response was forthcoming, as initially it was submitted that probably on account of availability of ground for PET a short notice was given, however, the said reason appears to be baseless inasmuch as the ground to be used for the purpose is the Rajasthan Police Training Centre, Mandore Road, Jodhpur, which is respondent's own ground. The other submission made by learned counsel for the respondents i.e. as the notification dated 13/8/2018 was issued to the effect that candidates, who are declared successful in the written examination must remain prepared for the purpose of PST/PET as they may be called for at any point of time and, therefore, the candidates cannot make any grievance, is also baseless inasmuch as the said notification was issued for the candidates who had cleared the written examination, however, the result of the petitioners was declared on 30/8/2018 and, therefore, the notification dated 13/8/2018 (Annex.R/1) was not meant for them. Besides the above fact, another important aspect which is required to be noticed is that despite holding PST/PET on 5/9/2018 and on subsequent dates, a lot of posts in all categories are lying vacant as is evident from the chart made available by the learned counsel for the respondents, wherein, for the post of Constable (GD) out of 50 posts, 20 are vacant, for Constable (Driver) out of 16 posts, 11 are vacant, for Constable TSP out of 92, 88 are vacant, and for Constable Driver (TSP) 05 out of 05 posts are vacant. In view of the vacancies available, despite PST/PET held twice by the respondents, the respondents otherwise cannot have any objection in case the petitioners, despite adversities, as noticed hereinbefore, attempted their PST/PET and failed, some by very small margin, are accorded one more opportunity in this regard. The Division Bench of Allahabad High Court in the case of Ajay Kumar Yadav (supra) came to the conclusion that though it is true that a person is not entitled to the post for which he is not eligible/qualified/fit, a candidate must be given a reasonable time to prepare for the endurance test and what amount of time would be reasonable depends upon the severity of the physical test and as the appellant therein was not given adequate time and indication, the Court granted another opportunity to the appellant for facing endurance test. The SLP against the order was dismissed by Hon'ble Supreme Court. The principle laid down in the case of Ajay Kumar Yadav (supra) clearly applies to the facts of the present case. Consequently, for granting inadequate time and indication to the petitioners for appearing in PET, the action of the respondents in this regard cannot be sustained and the petitioners are entitled to another chance to clear the PET. During the course of submissions, when it was put to both the learned counsel regarding reasonable time within which PST/PET can be held for according one more opportunity to the petitioners, both the sides submitted that the same may be held on 15/10/2018 at Rajasthan Police Training Centre, Mandore Road, Jodhpur. In view of the above discussion, the rejection of the petitioners candidature on account of their failure to clear the PET on 5/9/2018 is quashed, the respondents are directed to hold fresh PET for the petitioners only on 15/10/2018 at Rajasthan Police Training Centre, Mandore Road, Jodhpur and if they pass in PET and stand in over all merit, they may be accorded appointment pursuant to the advertisement dated 25/5/2018. No order as to costs. "? 11. On the other hand, learned counsel for the respondents has vehemently opposed the aforesaid submissions made on behalf of the appellant/writ petitioner on the count that the aforecited judgment specifically indicated that the petitioners therein would be permitted to participate in the fresh Physical Efficiency Test only on 15.10.2018 at the Rajasthan Police Training Centre, Jodhpur, and the said Test has already taken place. However, as per learned counsel for the respondents, since the present appellant/writ petitioner has approached only on 12.10.2018 after delivering of the earlier judgment on 06.10.2018, therefore, the present appellant/writ petitioner are inspired by the directions of the Court and now permitting the candidate to participate in the Test would not be appropriate. 12. Learned counsel for the respondents further stated that the impugned order is justified, as learned Single Judge had given an opportunity while passing the earlier judgment in Rajesh Kumar and Anr. Vs. The State of Rajasthan and Ors. (supra), but since it pertains to a recruitment exercise, therefore, the relief prayed for cannot be given at this belated stage, once the selection process is almost at the verge of completion, and particularly, when the appellant/writ petitioner has approached only on 12.10.2018, whereas the cause of action therefor had arisen on 05.10.2018. 13. Learned counsel for the respondents has also submitted that if at all the relief is to be considered, then it may be made qua the petitioner concerned, as it is not a common fact in the controversy that the admit card was uploaded only in the night, a few hours before the candidate could reach at the appropriate Centre to participate in the Physical Efficiency Test. 14. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, we find that in the peculiar facts of the present case when the appellant/writ petitioner's admit card was uploaded in the night of 04.09.2018, and he was to report from District Sirohi to District Jodhpur, and since he has travelled the whole night, it is virtually amounts to denial of opportunity to participate in the Physical Efficiency Test with a proper state of mind and body, as the lack of information and admit card in time, has virtually deprived the appellant/writ petitioner of his valid opportunity to have qualified the Physical Efficiency Test, which was 5 kilometres run within the stipulated time, in which the appellant/writ petitioner was disqualified by 29 seconds. 15. This Court would not have interfered in the Physical Efficiency Test in the normal circumstances, but we realize that a candidate must be given a reasonable opportunity to appear in the endurance test, which is quite strenuous, as running 5 kilometres within the stipulated time would require the candidate to be in a proper state of mind and body. The test of reasonableness, in the present facts and circumstances, thus stands answered in favour of the appellant/writ petitioner. 16. The Physical Efficiency Test which required a normal physical compatibility of the candidate cannot be said to be in the right spirit of a fair opportunity to the appellant/writ petitioner to participate in the Physical Efficiency Test and qualify the same, due to the slackness and complacence on the part of respondents by causing delay in issuing the admit cards. 17. The appellant/writ petitioner has taken the requisite steps within a reasonable period, as he has approached even while the selection process is yet to be completed. The improper opportunity to the appellant is writ large on the face of the facts, and the appellant/writ petitioner, who has reasonably approached the Court on 12.10.2018, after taking the requisite steps before the authorities concerned, due to improper opportunity to participate in the Physical Efficiency Test on 05.09.2018 requires to be allowed to participate in the said Test. 18. In light of the aforesaid observations, the present special appeal is allowed and the impugned order dated 22.10.2018 passed by learned Single Judge is quashed and set aside. The petitioner is entitled to the same relief as granted to the petitioners in the case of Rajesh Kumar and Anr. Vs. The State of Rajasthan and Ors. (supra) and the respondents are directed to hold a fresh Physical Efficiency Test for the appellant/writ petitioner on 20.11.2018 at the Rajasthan Police Training Centre, Mandore Road, Jodhpur. If the appellant/writ petitioner qualifies such Physical Efficiency Test and stands in the overall merit, he shall be accorded appointment, pursuant to the aforementioned advertisement dated 25.05.2018."? ;