Rajasthan High Court - Jodhpur
Sushama Sharma vs State Of Rajasthan & Ors on 20 November, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13723 / 2017
Sushama Sharma D/o Shri Devki Nandan Sharma, Aged About 36
Years, R/o 98, Shriram Colony, Rawat Road, Banswara, District
Banswara, Rajasthan.
----Petitioner
Versus
1. State of Rajasthan Through the Secretary, Rural Development
and Panchayati Raj Department, Government of Rajasthan,
Secretariat, Jaipur.
2. The Secretary, Department of Education, Government of
Rajasthan, Secretariat, Jaipur.
3. The Chief Executive Officer, Zila Parishad, Banswara, District
Banswara, Rajasthan.
4. The District Education Officer, Elementary Education, District
Banswara, Rajasthan.
5. District Establishment Committee Through Its Chairman, Zila
Parishad Banswara, District Banswara, Rajasthan.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Kailash Jangid.
For Respondent(s) : Mr. Vikas Choudhary for Mr. SS Ladrecha AAG.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 20/11/2017
1. The petitioner has preferred this writ petition under Article 226 of the Constitution of India with the following prayer:
"A. By an appropriate writ order or direction, any order denying the candidature of the petitioner for the selection and appointment on the post of Teacher Grade-III (Level II) against the category of TSP GE WE due to reason to belong to the other TSP Area/District in pursuance of the advertisement year, 2013 may kindly be quashed and set aside.
(2 of 7) [CW-13723/2017] B. By an appropriate writ order or direction, the respondents may kindly be directed to permit the petitioner in the further selection process of counseling for the post of Teacher Grade III (Level II) while considering her qualification and TSP GE WE Category in pursuance of the advertisement year, 2013. C. By an appropriate writ, order or direction, the respondents may kindly be directed to afford appointment to the petitioner on the post of Teacher Grade-III (Level II) against the category of TSP GE WE and posting place may kindly be provide on the basis of her merit status with all consequential benefits.
D. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
E. Writ petition filed by the petitioner may kindly be allowed with costs."
2. The petitioner is holding the qualification of Senior Secondary and B.Ed. and, therefore, under went the selection process of Teacher Grade-III (Level II) while being the resident of District Banswara. The controversy arose because the petitioner was permanent resident of District Banswara-TSP area. On account of her marriage, she shifted to District Dungarpur. Both the Districts are belonging to Tribal Sub-plan area. The petitioner went through the selection process and in the final result, the petitioner secured total 146.39+20% of RTET marks of 105 that is 21 marks. Thus, the total marks secured by the petitioner in the final result given by the respondents was 167.39 marks as reflected in Annexure-11. In the counseling, the petitioner informed the respondents that she belonged to TSP area of (3 of 7) [CW-13723/2017] District Banswara and after her marriage, she was residing at District Dungarpur, which is also a TSP area. However, the respondents issued an order dated 20.09.2017 which is Annexure-
13. The respondents having not considered the candidature of the petitioner in the TSP category as she belonged to District Dungapur after her marriage and as per the notification she was not belonging to District Banswara.
3. Learned counsel for the petitioner has shown the notification dated 4.07.2016, which is Annexure-8.
4. Learned counsel for the petitioner has drawn the attention of the condition No.2 of the notification dated 4.07.2016, which reads as follows:
" tgka HkrhZ ftyk Lrj ij dh tkuh gks vkSj fjfDr;ksa dk vo/kkj.k rFkk mudh lax.kuk Hkh ftyk Lrj ij dh tkuh gks] ogka vuwlwfpr [k.M ds fy, fjfDr;ka izdfYir :i ls ml vuqikr ds vk/kkj ij vo/kkfjr dh tk;saxh] tks ftyksa ds vuqlwfpr [k.Mksa dh dqy tula[;k dk ftys dh dqy tula[;k ds lkFk gSA bl izdkj izdfYir :i ls vo/kkfjr fjfDr;ksa dh 45 izfr'kr fjfDr;ka vuqlwfpr {ks= ds vuqlwqfpr tutkfr;ksa ,oa
5 izfr'kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tkfr;ksa ds vH;fFkZ;ksa ls Hkjh tk;saxhA vuqlwfpr {ks= dh 'ks"k 50 izfr'kr fjfDr;ksa ij fdlh Hkh tkfr ;k oxZ ds vuqlwfpr {ks= ds vH;FkhZ dk ;ksX;rk ds vk/kkj ij ojh;rk dze esa fu;ekuqlkj p;u fd;k tk;sxk] pkgs og vuqlwfpr tkfr ;k vuqlwfpr tutkfr ;k vU; fdlh oxZ ls lEcaf/kr gksA"
(4 of 7) [CW-13723/2017]
5. Learned counsel for the petitioner has further argued that the petitioner was belonging to the TSP area prior to her marriage i.e. Banswara and after her marriage, she belonging to TSP area i.e. District Dungarpur and since the notification dated 4.07.2016 does not discriminate on account of one TSP area to another TSP area, therefore, the petitioner's entitlement for selection will remain.
6. Learned counsel for the petitioner further argued that the petitioner belongs to original TSP area of District Banswara and matrimonial home being District Dungarpur, she shifted to Dungarpur, but the original home of the petitioner remains Banswara, therefore, the benefits of TSP area of Banswara shall be available to the petitioner.
7. Learned counsel for the petitioner has relied upon the judgment passed by this Court in Indira Kumari Ahari vs. State of Rajasthan & Ors. decided on 9.01.2013, which reads as follows:
"By this petition for writ, the petitioner is claiming for a direction to get her candidature considered for the purpose of appointment as Teacher Grade-III Level-II in the subject of Social Studies against the vacancies reserved in District Udaipur for Scheduled Tribes of Tribal Sub-Plan Area.
The factual matrix necessary to be noticed for adjudication of this petition for writ is that the Zila Parishad Udaipur under an advertisement dated 27.02.2012 invited applications from the eligible candidates to be considered for appointment as Teacher Grade-III (Level-II). An application in pursuant thereto was submitted by the petitioner and after facing the process of selection, she secured 86.07 merit marks. No appointment was accorded to her, though the respondents (5 of 7) [CW-13723/2017] fixed 71.49 marks as cut-off marks for women candidates belonging to Scheduled Tribes in Tribal Sub-Plan Area. Being aggrieved by the same, this petition for writ is preferred.
It is submitted by learned counsel for the petitioner that as per the notification issued by the Governor of Rajasthan exercising powers under Clause 1 of Article 244 of the Constitution of India, 45% of total vacancies in the districts of Tribal Sub-Plan Area are required to be filed in from among the local resident Scheduled Tribes. The petitioner is a bonafide resident of Tehsil Kherwada in District Udaipur, therefore, her candidature should have been considered against the vacancies reserved for ScheduledTribes (Women) belonging to Tribal Sub-Plan Area of District Udaipur.
Per contra, according to the respondents, the petitioner though is resident of Tehsil Kherwada, District Udaipur by birth, but after marriage, she is residing in District Dungarpur, therefore, her candidature cannot be considered against the vacancies pertaining to Tribal Sub- Plan Area of District Udaipur.
Heard learned counsel for the parties. The Governor of Rajasthan while exercising powers under Clause (1) of Article 244 of the Constitution of India notified that in the specified Scheduled areas, 45% of total vacancies pertaining Government services, except State services, shall be filled in from among the members of the local Scheduled Tribe communities and if the recruitment is to be made on divisional level, then vacancies are required to be computed at division level and 45% of that is required to be filled from among the member of local Scheduled Tribes. In the event of recruitment at district level, the vacancies are required to be determined on district level by ear-marking reservation upto 45% for local resident Scheduled Tribes.
The petitioner claimed consideration for appointment for District Udaipur, but being married to a person belonging to District Dungarpur, her candidature was not considered against the reserved vacancies. The petitioner is admittedly a resident of District Udaipur and merely on the count that she entered into a wedlock with a person (6 of 7) [CW-13723/2017] belonging to District Dungarpur, her local residency secured by birth has been abandoned. The petitioner, alongwith application form submitted by her to face process of selection, also annexed a certificate dated 21.03.2006, certifying that Village Tapana is part of Tribal Sub-Plan Area. She also appeared in Rajasthan Teachers Eligibility Test - 2011 by declaring herself as a resident of Tapana, as such, no reason exists for not treating her a resident of District Udaipur. The petitioner is admittedly a member of Scheduled Tribe and is resident of Tribal Sub- Plan Area. By birth she belongs to District Udaipur and as such, she is a local resident of that district. The respondents, thus, have wrongly denied consideration for appointment to her against the vacancies reserved for the members of Scheduled Tribes (Women) belonging to Tribal Sub-Plan Area of District Udaipur.
Accordingly, this writ petition is allowed. The respondents are directed to consider the candidature of the petitioner against the vacancies reserved for women candidates belonging to Scheduled Tribes in Tribal Sub- Plan Area of District Udaipur and if she stands in merit, appointment be accorded to her."
8. Learned Government Advocate opposes the submissions on the ground that the notification explanation shows that the petitioner has to be resident of that particular District, if she is born on or before 1.01.1970 or his or her parents are in the same TSP area on or before 1.01.1970.
9. After hearing the learned counsel for the parties and perusing the record of the case as well as the precedent law cited above, this Court is of the opinion that the petitioner was belonging to District Banswara and her status is being resident of Tribal Sub-plan area District Banswara is not disputed to the fact that she had changed her District due to her marriage in District (7 of 7) [CW-13723/2017] Dungarpur. Apparently, the notification dated 4.07.2016 which invoked, does not discriminate in any two TSP area and the benefits of the tribal sub-plan area was not for a particular District. The explanation as well as the Clause II categorically mentioned that the benefits of the reservation shall be given to the TSP area and not to a particular District. The petitioner is admittedly a member of general candidate and belongs to Tribal sub-plan area which is by birth Banswara and by marriage Dungarpur. Both the areas are tribal sub-plan area and are equally backward being TSP areas of State of Rajasthan. Thus, the discrimination of not granting reservation to the petitioner in the aforesaid circumstances cannot be permitted.
10. Accordingly, the present writ petition is allowed and the respondents are directed to consider the candidature of the petitioner against the woman candidates belonging to TSP area of District Banswara and if she stands in merit then appointment may be granted to her accordingly on the post of Teacher Grade- III (Level II) Sanskrit.
(DR. PUSHPENDRA SINGH BHATI)J. ck