Rajasthan High Court - Jodhpur
Laxmi Devi vs State Of Rajasthan on 9 August, 2019
Bench: S. Ravindra Bhat, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
1. D.B. Spl. Appl. Writ No. 1733/2018
1. Virendra Kumar S/o Ram Lal, aged about 37 years, R/o Bapa
Basti, Behind Vineet Talkies, Banswara.
2. Rakhi W/o Jagdish, aged about 34 years, R/o Bapa Basti,
Behind Vineet Talkies, Banswara.
3. Babita W/o Kachru, aged about 40 years, R/o Bapa Basti,
Behind Vineet Talkies, Banswara.
4. Ravi S/o Natwar Lal, aged about 37 years, R/o Bapa Basti,
Behind Vineet Talkies, Banswara.
----Appellants
Versus
1. The State Of Rajasthan through Secretary Department of Local
Bodies, Jaipur.
2. Municipal Council, Banswara through its Commissioner,
Banswara.
----Respondents
Connected With
2. D.B. Spl. Appl. Writ No. 1555/2018
Abhishek
----Appellant
Versus
State Of Rajasthan
----Respondent
3. D.B. Spl. Appl. Writ No. 1561/2018
Ravi Kumar
----Appellant
Versus
The State Of Rajasthan
----Respondent
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4. D.B. Spl. Appl. Writ No. 1608/2018
Pinki
----Appellant
Versus
State Of Rajasthan
----Respondent
5. D.B. Spl. Appl. Writ No. 1723/2018
Mohanlal Bohra
----Appellant
Versus
State Of Rajasthan
----Respondent
6. D.B. Spl. Appl. Writ No. 1731/2018
Manju
----Appellant
Versus
State Of Rajasthan
----Respondent
7. D.B. Spl. Appl. Writ No. 1780/2018
Meenakshi
----Appellant
Versus
State Of Rajasthan
----Respondent
8. D.B. Spl. Appl. Writ No. 1782/2018
Vikram Barasa
----Appellant
Versus
State Of Rajasthan
----Respondent
9. D.B. Spl. Appl. Writ No. 1784/2018
Dhawan Prakash
----Appellant
Versus
State Of Rajasthan
----Respondent
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10. D.B. Spl. Appl. Writ No. 1802/2018
Sunita Pandit
----Appellant
Versus
State Of Rajasthan
----Respondent
11. D.B. Spl. Appl. Writ No. 1814/2018
Mamta
----Appellant
Versus
State Of Rajasthan
----Respondent
12. D.B. Spl. Appl. Writ No. 1863/2018
Suman
----Appellant
Versus
State Of Rajasthan
----Respondent
13. D.B. Spl. Appl. Writ No. 1909/2018
Vinod
----Appellant
Versus
State Of Rajasthan
----Respondent
14. D.B. Spl. Appl. Writ No. 1929/2018
Satish Gujrati
----Appellant
Versus
The State Of Rajasthan
----Respondent
15. D.B. Spl. Appl. Writ No. 4/2019
Prem Lata
----Appellant
Versus
State Of Rajasthan
----Respondent
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16. D.B. Spl. Appl. Writ No. 186/2019
Laxmi Devi
----Appellant
Versus
State Of Rajasthan
----Respondent
17. D.B. Spl. Appl. Writ No. 206/2019
Kavita
----Appellant
Versus
State Of Rajasthan
----Respondent
18. D.B. Spl. Appl. Writ No. 214/2019
Rameshwar Lal Harijan
----Appellant
Versus
State Of Rajasthan
----Respondent
19. D.B. Spl. Appl. Writ No. 249/2019
Jitendra Kumar Sharma
----Appellant
Versus
State Of Rajasthan
----Respondent
20. D.B. Spl. Appl. Writ No. 253/2019
Dinesh Kumar
----Appellant
Versus
State Of Rajasthan
----Respondent
21. D.B. Spl. Appl. Writ No. 264/2019
Krishna Kumar
----Appellant
Versus
The State Of Rajasthan
----Respondent
22. D.B. Spl. Appl. Writ No. 285/2019
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Govind
----Appellant
Versus
State Of Rajasthan
----Respondent
23. D.B. Spl. Appl. Writ No. 287/2019
Ganpat Tank
----Appellant
Versus
State Of Rajasthan
----Respondent
24. D.B. Spl. Appl. Writ No. 288/2019
Ajay Dharu
----Appellant
Versus
State Of Rajasthan
----Respondent
25. D.B. Spl. Appl. Writ No. 389/2019
Jay Prakash
----Appellant
Versus
State Of Rajasthan
----Respondent
26. D.B. Spl. Appl. Writ No. 392/2019
Avinash
----Appellant
Versus
State Of Rajasthan
----Respondent
27. D.B. Spl. Appl. Writ No. 424/2019
Jamna Devi
----Appellant
Versus
The State Of Rajasthan
----Respondent
28. D.B. Spl. Appl. Writ No. 426/2019
Asha
----Appellant
Versus
State Of Rajasthan
----Respondent
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29. D.B. Spl. Appl. Writ No. 505/2019
Nirmal Kumar Teji
----Appellant
Versus
State Of Rajasthan
----Respondent
30. D.B. Spl. Appl. Writ No. 529/2019
Nirmal
----Appellant
Versus
The State Of Rajasthan
----Respondent
31. D.B. Spl. Appl. Writ No. 536/2019
Deepak Kagda
----Appellant
Versus
The State Of Rajasthan
----Respondent
32. D.B. Spl. Appl. Writ No. 584/2019
Devi Prasad
----Appellant
Versus
State Of Rajasthan
----Respondent
33. D.B. Spl. Appl. Writ No. 594/2019
Ravindra
----Appellant
Versus
The State Of Rajasthan
----Respondent
34. D.B. Spl. Appl. Writ No. 597/2019
Shankar Lal
----Appellant
Versus
State Of Rajasthan
----Respondent
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35. D.B. Spl. Appl. Writ No. 598/2019
Balkrishan Khatri
----Appellant
Versus
The State Of Rajasthan
----Respondent
36. D.B. Spl. Appl. Writ No. 599/2019
Laxman Lal
----Appellant
Versus
The State Of Rajasthan
----Respondent
37. D.B. Spl. Appl. Writ No. 601/2019
Sharda Devi
----Appellant
Versus
State Of Rajasthan
----Respondent
38. D.B. Spl. Appl. Writ No. 608/2019
Vimla
----Appellant
Versus
State Of Rajasthan
----Respondent
39. D.B.Spl.Appl. Writ No.358/2019
Manish
----Appellant.
Versus
State of Rajasthan
---Respondent
For Appellant(s) : Mr. Kuldeep Mathur
Mr. Vikas Balia
Mr. Vineet R. Dave
Mr. Deepak Vyas for Mr.Muktesh
Maheshwari
Mr. Virendra Acharya for Mr. Vinay Jain
Dr. Nikhil S. Dungawat
Mr. Hapu Ram
Mr. M.S. Purohit
Ms. Archana Joshi
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Mr. R.S. Saluja
Mr. Bhawani Singh
Mr. Chaitanya Gahlot
Mr. Lokesh Mathur
Mr. Om Rajpurohit
Mr. Anil Vyas for Mr. S.D. Vyas
Mr. Kan Singh Oad
Mr. H.S. Sidhu
For Respondent(s) : Ms. Rekha Borana, AAG with
Ms. Vaishali Parihar & Mr. Saransh Viz
Mr. Anurag Shukla
Mr. Bhanu Prakash Rajpurohit
Mr. Rajesh Parihar
Mr. Sunil Purohit
HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE DINESH MEHTA
Judgment REPORTABLE Reserved on 11/07/2019 Pronounced on 09/08/2019 Per Hon'ble Chief Justice
1. All these appeals challenge a common judgment and order of a learned Single Judge, who disposed of a large number of writ petitions, which had impugned the recruitment and appointment to the post of Safai Karamcharis, through a process that began in April, 2018.
2. The State of Rajasthan (hereafter "the State") by advertisement dated 13th April, 2018, invited applications from eligible candidates for appointment as 'Safai Karamchari' (hereafter "the 2018 recruitment"). Simultaneously, the State withdrew its earlier advertisements dated 25th May, 2012 and 31st May, 2012, to the extent of appointments not made, after completion of selection process (in terms of those two advertisements). The State however clarified that those participating in the two recruitments of 2012, were to be (Downloaded on 30/08/2019 at 01:49:37 AM) (9 of 42) [SAW-1733/2018] considered in the new selection process initiated by advertisement dated 13th April, 2018, by allowing age relaxation to them. Writ petitions were instituted challenging the 2018 recruitment process, on various grounds. The grounds urged were firstly, legality of the procedure for direct recruitment on the basis of a lottery system; secondly whether SC/ST reserved category candidates could be considered for OBC or general category vacancies after the vacancies for their category were filled; thirdly, legality of including vacancies left over from the selection process of year 2012, to the extent where appointments could not be made, in the 2018 recruitment.
3. The brief facts are that a learned Single Judge of this Court, in SBCWP No. 1177/1992: Sushila Vs. State of Rajasthan & Ors. (decided on 21st October, 1992) inter alia, directed selection on the basis of lottery system, relying upon an earlier decision in Rajasthan Dainik Vetan Bhogi Anshkalin Safai Mazdoor Sangathan and Ors. Vs. State of Rajasthan & Ors. (90) : 1992 (2) RLR 516 which had stated that where no minimum qualifications are prescribed, appointments can be resorted through the lottery system. Accordingly, on 13 January, 2003, a circular was issued for selection on the basis of lottery. Shankar and Ors. Vs. State of Rajasthan & Ors.: (SB CWP No. 10715/2009) however deprecated the circular dated 13th January, 2003, providing for appointment by lottery system, in the absence of statutory rules enabling such a procedure.
4. The recruitment process was initiated afresh vide advertisement No. 1/2012 dated 25th May, 2012, and advertisement No. 2/2012 dated 31st May, 2012; for recruitment on the post of 'Safai Karamcharies'. The vacancies initially advertised were subsequently increased. On 3rd May, 2013, the State decided to fill up 20,000 posts from amongst open category and Scheduled Caste candidates, in the first phase. On 23-01- 2014, the Rajasthan Municipalities (Safai Employees Service) Rules, 2012, (for short, 'the Rules of 2012'), were amended by introduction of a provision for selection by way of lottery system.
(Downloaded on 30/08/2019 at 01:49:37 AM)(10 of 42) [SAW-1733/2018] 5. Selection, (to the vacancies in the cadre of Safai
Karamcharis) in the first phase from amongst open category and Scheduled Caste candidates was challenged; by an order dated 19th January, 2016, this Court declared the bifurcation of two categories for recruitment in the first phase, was illegal and unconstitutional. The State was restrained from providing any reservation of posts to 'Valmiki' and 'Hela' Societies, in the name of preference. It was further held that appointment by lottery system introduced by the amendment to the rules could not be applied to recruitment process initiated vide advertisement dated 25th May, 2012. Consequently, the selections made through lottery system in the year 2012, were declared illegal. A Division Bench of this Court in Amit Gujarati and Ors. Vs. State of Rajasthan and Ors: (DBCWP No. 14059/2015, decided on 19-05- 2016), observed that the recruitment process initiated by advertisement dated 25-05-2012, applying amended provision made on 23rd January, 2014, was illegal, and directed the Municipal Corporation, Jaipur, to proceed with the recruitment process according to the Rules in vogue on the date of advertisement, if the recruitment process was required to be proceeded further. On 19th December, 2017, however, another bench of this Court in Lalit Kumar & Ors. v Principal Secretary to the Govt. & Ors. (SBCWP No. 11914/2015), in the backdrop of observations made by the Division Bench in the case of Amit Gujarati & Ors. (supra), keeping in view the dearth of Safai Karamcharis, directed all the Municipal Corporations to proceed with appointment in terms of selection already made under the advertisement dated 25th May, 2012, forthwith. Selections made in some municipalities were found to be plagued by irregularities; in some cases such selections were cancelled. In relation to Ajmer, the writ application(s) challenging such cancellations, were dismissed. However, in intra-court appeals preferred, it surfaced that in some cases appointments were made on the basis of wrong or forged experience certificates; the court held however that for these individual lapses or irregularities, the entire selection process would not have been cancelled. The court therefore directed the State to complete the selection process (Downloaded on 30/08/2019 at 01:49:37 AM) (11 of 42) [SAW-1733/2018] within a period of two months by proper scrutiny of the documents/certificates, separating the tainted from untainted. If sufficient number of eligible candidates were not available an advertisement was required to be issued afresh immediately. In the meanwhile, Rules of 2012 were amended.
6. The State in the circumstances, issued advertisement dated 13th April, 2018, for recruitment of 'Safai Karamchari' urgently withdrawing the unfilled vacancies for which the recruitment process was initiated by advertisement dated 25th and 31st May, 2012, and appointments could not be made even after conclusion of selection process. However, the applicants of recruitment process of 2012, were to be considered in the selection process involved herein, without submission of application forms afresh, and with relaxation of age. The recruitment process became the subject matter of challenge in Akhil Bhartiya Valmiki Samaj Arakshan Samajik Shodh and Vikas Samiti Vs. The State of Rajasthan and Ors. (DBCWP No. 13187/2018) challenging the legality and validity of the Notification dated 23rd January, 2014, amending Rule 9 of the Rules, 2012, by induction of lottery system as one of the criterion for recruitment. The writ petition was dismissed on 13th July, 2018, upholding the legality and validity of the Notification dated 23rd January, 2014. The said judgment upheld recruitment by adoption of the lottery system.
7. The petitioners approached this Court on various grounds. It was principally argued that the procedure adopted of including reserved category candidates in the open/general category vacancies after they availed concession of relaxation in age, is contrary to law. Reliance is placed upon a circular of 26 th July, 2017 issued by the Government of Rajasthan, Department of Personnel. It was submitted that only those candidates of reserved category SC/ST/OBC, who had not availed of special concession of relaxation in age and who had not qualified in physical fitness etc. could claim to be selected on unreserved or open general category, in the event they secure more marks than the last candidate in the unreserved/open general category. Furthermore, it is argued that the corrigendum issued on (Downloaded on 30/08/2019 at 01:49:37 AM) (12 of 42) [SAW-1733/2018] 24.4.2018, granting relaxation of age, resulted in arbitrariness. Thus, participating candidates who did not fulfil the maximum age limit of 35 years as on the prescribed date could not claim consideration of their candidature.
8. The second important argument was that the merger of vacancies which was part of 2012 recruitment process with the subsequent vacancies was contrary to law. Allied argument in this regard was that the recruitment of 2012, had to be in conformity with Rule 9 of the Rules of 2012, which meant that the advertisement was to be issued by the concerned local bodies through their Chief Executive Officer. That rule was not followed; the recruitment therefore sought to be completed in 2012 was bad in law. The second connected argument was that carrying forward vacancies of previous years and merging them with the subsequent vacancies for the purpose of recruitment later in 2018 was again contrary to law.
9. The State relied upon a Division Bench ruling in Akhil Bhartiya Valmiki Samaj Arakshan Samajik Shodh & Vikas Samiti (D.B. Civil Writ No. 13187/2018 Decided on 13.07.2018) and justified the adoption of lottery system for selection and recruitment to the vacancies. It was submitted that there is no rule barring consideration of reserved category candidates against general category vacancies; the State had relied upon the rule of migration, in terms of which if candidates applying under a reserved category are sufficiently merited in the selection process, their appointments would be against general vacancies, thus freeing the vacancies for reserved category candidates. Thus, it was submitted that after filling up of posts in the reserved category, the left-over candidates had a right to be considered against the general vacancies. The State emphasizes here that unlike in the case of other recruitment, no skill was tested; the recruitment process did not involve the written test or interview. As it was based upon chance, the provision for another opportunity to reserved category candidates against general vacancies could not be denied. The State relied upon Madan Mohan Sharma & Anr. Vs. State of Rajasthan & Ors., (2008) 3 (Downloaded on 30/08/2019 at 01:49:37 AM) (13 of 42) [SAW-1733/2018] SCC 724 and urged that merger of vacancies was not contrary to law. It also highlighted that no candidate or applicant who participated in the recruitment process in 2012 was prejudiced because candidature of each, who could not be appointed, was considered.
10. The learned Single Judge has heard these writ petitions and upheld the applicability of the lottery system as well as merger of vacancies. Furthermore, the learned Single Judge dealt with other issues. By the impugned judgment and order, the learned Single Judge held as follows:-
"69. The Division Bench of this Hon'ble Court in the aforementioned precedent law has taken care of every aspect of the recruitment process being conducted, while adopting the lottery system, including the apprehensions of the parties in relation to unfair means being resorted to, while adopting the process of lottery, and after giving a thoughtful consideration to the issue, the Hon'ble Division Bench has held that the selection on the basis of lottery system is lawful, and thus, Rule 9 of theRules of 2012 is in accordance with law.
70. This Court holds that the migration of reserved category into General Category is a settled phenomenon of law, and the reservation policy in vogue, as per law, requires that while the reserved categories are given a chance to avail their reservations, but by such availing of chance, the reserved categories are not precluded from migrating into the General Category, which in fact, is a category open for all on need to have all classes getting equal opportunity to compete for.
71. Thus, this Court holds that the opportunity to the candidates for the post of Safai Karamchari, who belonged to the reserved categories, to avail the direct recruitment, in the General Category, is their lawful right, as per the reservation laws.
72. The comparative merit being not there, does not permit the respondents to shirk away from implementing the reservation, which has a constitutional and legislative mandate, and therefore, even when the lottery system is being adopted, then also Rule 9 of the Rules of 2012 is subject to the application of reservation in the direct recruitment. It will defeat the very purpose of the constitutional mandate, if the direct recruitment, by any means, seeks to exclude the reservation, which has a constitutional backing. The respondents were therefore, left with no other option, but to operate the reservation, for which they have laid down a uniform and transparent (Downloaded on 30/08/2019 at 01:49:37 AM) (14 of 42) [SAW-1733/2018] criteria, including giving examples of how it shall operate vide their letter dated 29.05.2018.
73. The aforementioned criteria is applicable across the board in the complete recruitment for all the candidates, and is thus, carrying a level of transparency and confidence, that such a criteria should carry. The criteria of giving lottery preference to the reserved classes, and thereafter, permitting the rest of the reserved classes, who do not get appointment in the General Category, is a fair criteria. By the said criteria, the reservation of SC/ST and OBC is being fairly implemented, as those respective classes are given appointment by lottery in their respective classes; whereas their participation and inclusion in the General Category, where they have a broad right, would be in accordance with the law of reservation.
74. There is no question of violation of Articles 14 and 16 of the Constitution of India, as the Doctrine of Reasonable Classification has been developed by the precedent law laid down by the Hon'ble Apex Court as well as various other legislations, by which the classification has to be done, so as to treat the unequals as equals, by making a classification.
75. The mandate of Articles 14 and 16 of the Constitution of India in fact required the respondents to carry out and implement the reservation in the direct recruitment, which has been done by them, by prescribing a transparent and uniform criteria in a satisfactory manner, whereby the reserved classes have been given complete opportunity to participate in their respective categories as well as in the General Category, as they are given in all other recruitments.
76. This Court also finds that the checking and verification of the forms at the threshold was not possible, as the employment exercise at the initial stage, has a humongous number of applicants, and to scrutinize them, would be waste of energy, whereas to scrutinize the selected candidates, who are very limited in number, is an easy proposition, and therefore, the scrutiny and verification, after the select list is prepared, is a legally and practically accepted solution, which is being conducted by the State of Rajasthan, and all other employment agencies in different recruitments, and thus, being an acceptable norm, the same cannot be deviated from on any count.
77. Moreover, once the ineligible candidates are excluded from the recruitment at the stage of selection itself, then no prejudice shall be caused to any candidate, who would have a right to participate in the selection process, as a lawful candidate.
78. This Court also finds that the waiting list could not have been made, as in the lottery system, the definite number of (Downloaded on 30/08/2019 at 01:49:37 AM) (15 of 42) [SAW-1733/2018] posts were required to be filled, and any kind of waiting list would have been difficult to operate, in light of non- availability of the comparative merit.
79. It would be practically impossible for the respondents to have a waiting list, as, which of the waiting list would be given preference in the order of merit or in the order of chronology, would be very difficult to settle, in case of not having the comparative merit. Thus, the respondents shall, after having filled the seats from the selected candidates by way of lottery, shall be left with the option of making a fresh lottery for the available vacant posts, which shall not create any discrepancy or disharmony amongst the candidates so selected, as due to lack of the comparative merit, every candidate, who stands selected by way of lottery, is at the same pedestal, and making any chronology amongst them, would not be possible.
80. This Court also holds that cancellation of the 2012 recruitment and carrying forward of the vacancies thereof to 2018 is a prerogative of the State, as the precedent law, after examination, clearly reflects that the State has the prerogative to prescribe a uniform and transparent criteria of carrying forward the vacancies from one advertisement to another advertisement, and in this case, this Court finds that once the amendments in the Rules of 2012 were made vide notifications dated 23.01.2014 and 11.04.2018, then the respondents, if would have carried out the recruitment, while implementing the unamended law, would be detrimental to the larger interest of justice. Thus, the new Rule, which could have been adopted only prospectively, was rightly applied on the vacancies brought forward by the advertisement of 2018.
81. Moreover, this Court has seen that no prejudice has been caused to the vacancies of the year 2012, as the candidates participating in 2012 employment exercise, have been given all relaxations, so that they can compete alongwith all other similarly situated candidates in a free and transparent manner to have their chance of recruitment."
11. This Court notices that during the course of hearings before the Single Judge, due to the judgment of the Division Bench in Akhil Bhartiya Valmiki Samaj Arakshan Samajik Shodh & Vikas Samiti (supra), the petitioners gave up the plea of challenge to the recruitment process applying the criteria of lottery system. That issue was not urged in appeal, or canvassed during the hearings.
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12. During the hearing of the appeals arguments were focused upon few aspects. Serious exception was taken to the procedure adopted of filling reserved vacancies through draw of lots and then including reservation for women and persons with disabilities and then holding draw of lots for balance vacancies. Learned counsel for the appellants argued that the chances of candidates, who did not belong to any reserved category, did not benefit from the gender reservation or were not persons with disabilities, stood seriously curtailed and prejudiced because the State of Rajasthan permitted unsuccessful candidates from such reserved category to also participate in the draw of lots. It was argued that this amounted to grant of two chances to the same individual - a benefit that was not given to general and unreserved category candidates. It was also argued that once reserved category candidates (such as OBC/SC/ST) had enjoyed inclusion of his/her name, in the separate draw of lots, the question that his/her name be included in the draw of lots for the general category could not have arisen. This, counsel argued, amounted to discrimination, inasmuch as the general category quota could not have been availed of by such reserved category.
13. Learned counsel argued that the concept of 'migration' of candidates from the seats earmarked to be filled by one or other reserved category, applies only when the selection is merit based. Since draw of lots is based purely upon chance, the question of a reserved category candidate scoring high marks necessitating his/her inclusion in the general category list of selected candidates cannot arise. In such circumstances, it was submitted that this feature is not only discriminatory but contrary to the rule of 'migration' evolved in R.K. Sabharwal v State of Punjab (1995(2) SCC 745). Learned counsel also argued that the Single Judge completely failed to notice that even if it were assumed that reserved category candidate (SC/ST/OBC) could be allowed to participate after having been unsuccessful in the draw of lots held for that category and permitted to take their second chance in the general category, those candidates, who were given the (Downloaded on 30/08/2019 at 01:49:37 AM) (17 of 42) [SAW-1733/2018] benefit of age relaxation could not be permitted to such a second chance.
14. It was argued furthermore that a number of candidates whose names figured in the select list, were ineligible for the reason that they had secured appointment after having applied in more than two places. Likewise, the stipulation that more than one member of the same family could not have applied was violated and the candidates who were selected on account of infringement of that stipulation should have been removed from the select list.
15. It was argued that the inclusion of the 2012 vacancies in the draw of lots which occurred in 2018 is contrary to law. Counsel reiterated the submissions made - originally before the Single Judge that the 2012 recruitment was notified in accordance with the then prevailing Rules. Those rules did not stipulate selection by draw of lots. The subsequent framing of those rules could not have been the occasion for the inclusion of the 2012 vacancies once the recruitment process had commenced. It was argued that, besides, the State Government had in fact operated the 2012 select list. It was further argued that the Chief Executive officers of the municipalities did not issue the advertisements, which was an incurable illegality.
16. The writ petitioners in Ravindra v State of Rajasthan (SAW No.594/2019) argued that names of many of them were even shown in the select list, but the individuals were not appointed. They had approached the Court and the State was asked to take further steps in regard to their appointment. In these circumstances, the inclusion of those vacancies against which they were selected was contrary to Article 14 and therefore, arbitrary.
17. On behalf of the State it was argued by the learned Additional Advocate General Ms. Rekha Borana that the inclusion of unsuccessful reserved category individuals in the draw of lots held for the open or general category is not contrary to law. It was submitted that the question of migration does not arise; it (Downloaded on 30/08/2019 at 01:49:37 AM) (18 of 42) [SAW-1733/2018] was pointed out on the contrary that the basic fallacy in the appellants' argument is that it pre-supposes the open category to be a 'quota'. Learned AAG argued that the open category by definition and description means that everyone who is eligible is included. Thus it was open for inclusion of names of all who were eligible - whether reserved or otherwise, in the draw of lots for the general category. It was pointed out that rule of 'migration' is also based on the assumption that candidates of the reserved category who secure sufficiently higher marks as to warrant inclusion in the open category should be shown as part of the open category. This is on the premise that the reservation provided for candidates who belong to such reserved category is only to ensure their minimum representation, having regard to the State's assumption that they are not adequately represented. However, that does not preclude representation of such candidates in excess of the quota earmarked, as long as they secure it competitively. Therefore, counsel argued that inclusion of names of unsuccessful candidates and permitting them to compete with those who are eligible to be included in the draw of lots for the open category, does not violate Article 14 but rather ensures parity of all candidates.
18. Learned AAG highlighted that the procedure adopted i.e. filling of reserved categories vacancies, through draw of lots, district wise in a transparent and fair manner, was in fact in conformity with the mandate of equality. At the stage when the reservation was notified - as was the procedure, none of the petitioners complained. Their names were included in the draw of lots. Upon their not being successful in the reserved category, their names were also included in the general category. Likewise, the candidates whose names were included in the general category along with the names of unsuccessful reserved category candidates, allowed the draw of lots to be completed. Having regard to the fact that the selection was a unique one and based upon a draw of lots held transparently, the participation of these candidates was crucial. In such circumstances, the unsuccessful candidates could not complain of violation of equality as the (Downloaded on 30/08/2019 at 01:49:37 AM) (19 of 42) [SAW-1733/2018] method already adopted was based upon a lottery exercise and as a result of carefully thought out programme.
19. Learned counsel argued that the method of selecting candidates through draw of lots and the combining of left-over vacancies of 2012 recruitment process was not illegal. It was submitted that the choice of draw of lots in regard to such vacancies also could not be considered as a later procedure given that the Rules were amended and a corrigendum issued after initial advertisement had been published. As to the argument of candidates that those included in the select list were not appointed, the State's argument was that no candidate can claim a vested right to appointment merely because of inclusion of his/her name in a select list. If there is a rational warrant by change of some circumstances, the State can always not operate the select list. Likewise, the learned counsel argued that no prejudice was caused to any candidate or applicant whose name could not be processed pursuant to the selection process of 2012. She pointed out that name of every candidate, who had applied earlier, was included in the draw of lots both in the reserved and in the general category in the 2018 selection process. Furthermore, they were not even asked to apply afresh and automatically age relaxation was given to them. In these circumstances, learned counsel argued that there can be no complaint of illegality or arbitrariness.
20. Lastly, it was argued that so far as removing names of candidates, who had violated the stipulations or filed false declaration or applied from two places, or for the reason that more than one family member had applied was concerned, the State would be taking action subject to the final decision of the Court. It was submitted that some of the candidates who were issued with notice proposing their termination (for filing false declaration or having infringed or violated the stipulations of selection) had approached the Court and were enjoying interim orders. Subject to the final decision in their cases, the State would take further action to fill the vacancies as and when they arise from amongst the eligible left-over candidates of the 2018 (Downloaded on 30/08/2019 at 01:49:37 AM) (20 of 42) [SAW-1733/2018] selection to the extent the select list would be operated in accordance with the Rules.
21. Before dealing with the rival contentions, it would be necessary to extract and reproduce the rules governing the recruitment involved in the present case. The advertisement notice proposed the method of drawing the select list, according to different categories entitled to reservation, and other matters. The relevant translated portion of those principles or rules read as follows:
"Essential guidelines regarding the lottery:
First, the total vacancies shall be divided to earmark the number of vacancies available for each category, after which, all the application forms received should be classified according to their categories.
On the days of the lottery - 25 th June to 29th June 2018, a committee constituted under the authority of the district collector shall conduct a draw of lots through a computer at the District office.
Through the Departmental Order No. 1528 dated 20.04.2018, the deputy director (regional) of the local body department was replaced by the concerned chief municipal officer, who was declared a member in the Lottery Commit-
tee. The Lottery Committee constituted through Departmen- tal Order No. 789 dated 13.04.2018 shall remain effective; i.e., the respective Regional Deputy Director will also be a member of the Committee.
A software is being prepared separately for the lottery, which will soon be uploaded on the websites of all urban bodies and all district collectors' officers. The lottery will be organised by category. First, the lottery will be from amongst Schedule Castes category candidates, followed by the Other Backward Classes, Backward Classes and finally the lottery of General category candidates. In all categories, the lottery for divorced and widowed women under each category must be earmarked first. Fol- lowing this, the lottery for various reserved categories, if available, should be carried out. The lottery for men from the general category should be conducted at the end. The lottery for divorced women of the Scheduled category must be conducted first, followed by the lottery for widows. The applications remaining after the lottery is picked for abandoned persons/ widows will be combined with the lot- tery of other scheduled caste women, and the lottery for scheduled caste women will be picked. Subsequently, the remaining applications will be combined with the applica-
(Downloaded on 30/08/2019 at 01:49:37 AM)(21 of 42) [SAW-1733/2018] tions for scheduled caste men, and the lottery for men will be drawn from this pool.
The applications remaining after conducting the lottery for scheduled caste divorced/ widowed women, will be com- bined with the applications of divorced / widowed general category women, and the lottery will be conducted. The ap- plications remaining after the lottery has been conducted for scheduled caste women will be combined with those of gen- eral category women, and the lottery for general category women will be conducted for general category women. The remaining applications for general category women will then be combined with the applications for general category men, and the lottery will be conducted.
The said procedure should be used for Scheduled Caste, Scheduled Tribes, OBCs and SBCs.
In terms of the above procedure, the application number for the lottery will be mentioned and the name of the candidate will be mentioned, and the list of the names of the success- ful candidates will be placed on the notice board of the Dis- trict Collector's office on the same day. Following this, the municipality will issue an appointment letter as per the rules to the selected candidates on the same day.
The lottery for Scheduled Caste, Scheduled Tribes, Other Backward Classes and Backward Classes should be con- ducted first, and excluding the candidates so selected, the remaining applications of the aforementioned categories must be combined with those for the general category can- didates.
For example, if there are 100 applications in all for a given urban body:
Category Post Received Selected by Remaining applications lottery applications SC 16 200 16 184 ST 12 150 12 138 OBC 21 100 21 79 SBC 1 50 1 49 Sum of 50 500 50 450 the above General 50 100 Lottery for 550 applications (100 + 450=
550) (Downloaded on 30/08/2019 at 01:49:37 AM) (22 of 42) [SAW-1733/2018] As shown above, the candidates from the various reserved categories must be selected first for the posts, followed by the candidates from general category, conducted from the remaining 550 applications.
For the recruitment of cleaning personnel, the department has prepared a software, for which each department will re- ceive a log in id and password over email. The applications are to be uploaded on the software through the login id. All received applications must be uploaded within 7 days. Applications which are withdrawn will be cancelled on the software by the department, with a remark to that effect. After carrying out an investigation of the applications on the software, the lottery process will be carried out through the software, for which detailed guidelines will be issued sepa- rately."
22. First, this Court proposes to consider the argument that recruitment of candidates, through draw of lots, is arbitrary. This submission was rejected by the Single Judge, who relied upon the previous Division bench ruling in Akhil Bhartiya Valmiki Samaj Aarakshan Samajik Shodh & Vikas Samiti (supra). The Division bench had, in that ruling held as follows:
"13. By this writ petition, a challenge is made to the Notification dated 23rd January, 2014 amending Rule 9 of the Rules of 2012 and even the advertisement dated 13th April, 2018. It would be gainful to refer the unamended provision for ready reference and, accordingly, Rule 9 of the Rules of 2012 is quoted hereunder:
Unamended provision:
"9. Procedure for direct recruitment.- The Chief Municipal Officer shall invite applications for direct recruitment through advertisement in the two state level daily newspapers and shall make appointment on the basis of either conducting written examination/interview/merit/experience or on the basis of one or more criteria's as mentioned above."
14. The perusal of Rule 9 of the Rules of 2012 shows that the Chief Municipal Officer would invite applications from and amongst eligible candidates and appointment would be made by conducting written examinations/interview/merit/experience or on the basis of one or more criteria, as given above. The State Government then brought a Notification dated 23rd January, 2014 amending Rule 9 of the Rules of 2012. The amended provision is also quoted hereunder for ready reference:
Amended provision:(Downloaded on 30/08/2019 at 01:49:37 AM)
(23 of 42) [SAW-1733/2018] "9. Procedure for direct recruitment.- The Chief Municipal Officer shall invite applications for direct recruitment through advertisement in the two state level daily newspapers and shall make appointment on the basis of either conducting written examination/interview/merit/experience/lottery system amongst eligible candidates or on the basis of one or more criteria's as mentioned above."
15. As per amended provision, apart from criteria for selection existing under Rule 9 (pre-amended), addition of lottery system has been made. The amendment has been challenged by the petitioner on various grounds.
16. It has been admitted by learned counsel for the parties that, in past, when selections were made by the criteria then existing, litigation came before the court thus selections and appointments could not be completed. This court passed a detailed order to apply lottery system in the selection. It was in the case of Sushila Vs. State of Rajasthan & Ors., SB Civil Writ Petition No. 1177/92, decided vide order dated 21st October, 1992. After the judgment aforesaid, appointments were made based on lottery system alone.
17. This was questioned subsequently in the case of Sarla & Ors. Vs. State of Rajasthan & Ors., SB Civil Writ Petition No. 13275/2013, along with connected matters, decided vide order dated 4th September, 2013. Therein, it was held that selections cannot be made based on lottery because procedure aforesaid has not been provided under the Rules. The subsequent judgment was thus in reference to Rules and by holding that earlier judgment was given in the circumstances then existing and cannot be applied in perpetuation unless rules are amended. The respondents then brought amendment under challenge. The only ground for challenge is that lottery cannot determine the merit of the candidates and may even ignore experience and other relevant aspects. The selections may even be made in ignorance of the physical fitness of candidates, who may not be fit to undertake cleaning work.
18. The aspect aforesaid has been replied by learned Additional Advocate General. It is submitted that rule does not provide any educational qualification for the post of Safai Karamchari. In view of the above, even an illiterate person can participate in the selection process. If the Government conducts written test to make selection, the issue may be raised by those who are not having educational qualification and otherwise not provided under the Rules thus at no point of time, written examination has been conducted.
19. Another method for selection can be interview. We have seen that whenever selections are made solely on the basis of interview, issues about arbitrariness and favouritism are (Downloaded on 30/08/2019 at 01:49:37 AM) (24 of 42) [SAW-1733/2018] raised. It is apart from the allegation of corruption. Accordingly, even method of interview was not adopted for selection. The selection can be based on experience also. Therein, the voice of arbitrariness would not exist. The respondents applied the aforesaid method for appointment in Municipal Corporation, Ajmer but lot of complaints were received questioning the experience certificates issued by the contractors. The State Government caused an inquiry where most of the experience certificates were found to be fake. The State Government realised that even the aforesaid mechanism is giving room to corrupt practices.
20. We need not to assess as to whether selections through lottery system would be proper or otherwise effective so as to eliminate room of arbitrariness, discrimination, favouritism or corrupt practices. We, however, find that selections through lottery adopted in past were not subjected to litigation thus remained successful. Accordingly, if respondents have come out with the amendment in the rules to include lottery system as one of the modes for recruitment, it cannot be said to be without their competence or to suffer from constitutional validity. It has been brought for the object sought to be achieved. It is not a post which needs selection based on the educational qualification or otherwise but it is the lowest post of Safai Karamchari. Therein also, rules require physical fitness of the candidates thus a doubt created by learned counsel for petitioner about selection of those candidates not physically fit cannot be accepted. For that, reference of Rule 10 would be relevant and is quoted hereunder:
"10. Physical fitness.- A candidate for direct recruitment to the service must be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties and must produce a certificate to that effect from a Medical Officer."
21. It would be relevant to even refer Rule 11 where initial appointment is provided on probation. If services are not found satisfactory in the period of probation, a candidate can be discontinued. Taking into consideration the framework of the rules, we do not find that amendment is made for oblique motive or to make a room to favour or otherwise the appointment may be given to a person not physically fit.
22. Learned counsel for petitioner has even made the reference of Valmiki Samaj occupied in the job of cleaning work.
23. It is submitted that members of the Valmiki Samaj are doing cleaning working for last many decades thus it has become their traditional job. By evolving method of lottery, they may be deprived to get appointment on the post of Safai Karamchari affecting their traditional work. We find argument to be counterproductive, rather, damaging to the (Downloaded on 30/08/2019 at 01:49:37 AM) (25 of 42) [SAW-1733/2018] Valmiki Samaj itself. If we accept the plea about traditional work of safai by Valmiki Sajaj then it would mean that members should not go for other jobs. It is even when they are entitled for reservation in service being members of Scheduled Caste. If they would continue to work as Safaiwala then would not explore the possibility of other jobs. It may be higher and better post for their career. It is otherwise a fact that post of Safai Karamchari cannot be earmarked for one society or caste thus argument in reference to Valmiki Sajaj cannot be accepted.
24. Learned counsel for petitioner has made reference of the judgment of the Karnataka High Court in the case of Shri B.P. Nagaraju Gowda (supra). Therein, the system of lottery to make appointment has been deprecated. The facts of the aforesaid case are quite distinguishable. It has already been discussed that the written examination to make selection would not be possible in this case as even illiterate persons are eligible to apply for the post. In case of written examination, he would be indirectly ousted from selection in violation of the rules. This court has further discussed the outcome of selection solely based on the interview, that too, in a case where the applications received are not in hundred or thousand but in lac. If the mechanism of interview is evolved, it would not only take long time but can be questioned by the candidates about its subjectivity.
25. Taking into consideration facts of this case, we do not find that method of selection by lottery is illegal. The judgment of the Karnataka High Court in the case of Shri B.P. Nagaraju Gowda (supra) does not apply to the facts of this case.
26. Learned counsel for petitioner has raised question about fairness in the system of lottery. It has been submitted that manipulations can be made even in lottery. We have given our serious consideration on the aforesaid issue thus called for the record to find out as to how lottery has been drawn. The record shows that a software was prepared by engaging an independent firm. The aforesaid software was then sent for audit to find out as to whether it is full-proof or not. After getting audit report, further process was undertaken by involving the Information and Technology Department, State of Rajasthan. Thus in the process of lottery, the Municipal Councils were not directly involved, rather, they got the software prepared from an independent firm followed by an audit report and lastly, it involved an independent Department of State of Rajasthan namely, Information and Technology. The petitioner has not brought on record any fact which may question the independence of the system in drawing lottery thus the issue about fairness in drawing lottery system remains for the sake of it.
27. Learned counsel for petitioner has even made reference of the previous judgment of this court in the case of Sushila (Downloaded on 30/08/2019 at 01:49:37 AM) (26 of 42) [SAW-1733/2018] (supra), whereby, an order was passed for making selection on the basis of lottery. The judgment aforesaid was given when fairness in selection by other modes was questioned. To overcome with the difficulty and to have fairness in the selection, the direction to hold selection by evolving method of lottery was given. The respondents, thereafter, adopted the said method for many years. It was stopped when a writ petition was filed to question the mode of selection by lottery. This court caused interference for the reason that rules were not providing mode of selection by lottery. The respondents thus made an amendment to continue old system, as was directed earlier by this court in the case of Sushila (supra). In view of the above, the judgment holding recruitment through lottery to be illegal was in given facts and circumstances. At that time, the rule was not providing mode of recruitment by way of lottery."
23. This Court is of the opinion that the decision in Akhil Bhartiya Valmiki Samaj Aarakshan Samajik Shodh & Vikas Samiti categorically upheld the validity of the lottery based recruitment system, on the premise that no educational qualification had been prescribed for the vacancies. This clear ruling precludes further debate. However, this court expresses its reservations for a widespread use of the lottery or draw of lots, as the basis of recruitment in regard to vacancies and posts, that require some educational qualifications or a measure of prior experience, or both.
24. The next important question is whether names of candidates of any reserved category, who availed a chance in the draw of lots for that category, can nevertheless be included in the draw of lots or lottery held for general category candidates. The appellants had sought to urge that granting such opportunity would be an additional one, because those (applicants) who do not belong to any reserved category are given only one chance.
25. It was argued on behalf of some of the unsuccessful candidates that permitting "migration" to reserved category candidates and including the names of those, who had availed age relaxation, is contrary to law and Article 14. Here, it was submitted that such candidates got the benefit of a concession, which enabled them to participate in the draw of lots vacancies earmarked for such reserved categories. Having availed of that chance, they could not- on the strength of such age relaxation- be (Downloaded on 30/08/2019 at 01:49:37 AM) (27 of 42) [SAW-1733/2018] permitted to participate in the draw of lots held for general category candidates. This Court finds merit in the submission. This issue had arisen earlier as well. In Gaurav Pradhan and Ors. vs. State of Rajasthan & Ors. (2018) 11 SCC 352 the Supreme Court held as follows:
"46. As noticed above Rule 7(1) of 1989 Rules expressly provides that "reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion". The circular of the Government shall be treated to be in force for the purpose of reservation which is in force at the time of recruitment. Recruitment commenced by the advertisement dated 7.10.2010 and 25.10.2010 at that time only circular dated 24.06.2008 was in force, hence, subsequent circular dated 11.05.2011 cannot be applied in the present recruitment. There cannot be any dispute that the policy of reservation can always be changed by the State Government and the State Government can change the manner and methodology of implementing the reservation and criteria of reservation of the reserved category candidates and general category candidates. It is also relevant to note that both learned Single Judge and Division Bench have not approved circular dated 11.05.2011 in toto. Both the Courts have held that apart from age relaxation, if the candidate has taken any other relaxation circular dated 11.05.2011 cannot help him in migrating into general category candidate.
47. We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category-candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.
48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who (Downloaded on 30/08/2019 at 01:49:37 AM) (28 of 42) [SAW-1733/2018] had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.
49. On the question of existence of vacancies, although learned Counsel for the Appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned Counsel for the State of Rajasthan. However, neither Appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies. We thus for adjusting the equity between the parties issue following directions:
(1) The writ Petitioners/Appellants who as per their merit were entitled to be appointed against unreserved vacancies which vacancies were filled up by migration of SC/ST/BC candidates who had taken relaxation of age should be given appointment on the posts. The State is directed to work out and issue appropriate orders for appointment of such candidates who were as per their merit belonging to general category candidates entitled for appointment which exercise shall be completed within three months from the date copy of this order is produced.
(2) The State shall make appointments against the existing vacancies, if available, and in the event there are no vacancies available for the above candidates, the supernumerary posts may be created for adjustment of the Appellants which supernumerary posts may be terminated as and when vacancies come into existence."
26. Recently, in Niravkumar Dilipbhai Makwana vs. Gujarat Public Service Commission & Ors 2019 (9) SCALE (decided on 4 July 2017) the Supreme Court again re-iterated the position as follows:
"16. In the meantime, the State Government in its General Administration Department vide Government Resolution dated 11.12.1986 formulated a policy to the effect that the members belonging to the SC and ST categories who are selected for appointment by direct selection to any service or post included in the State Services or in the Subordinate Services on the basis of their merits, shall be considered for appointment on unreserved posts, which are filled in on (Downloaded on 30/08/2019 at 01:49:37 AM) (29 of 42) [SAW-1733/2018] merit along with other general category members. As per the said Government Resolution dated 11.12.1986, such appointments on merit of the members belonging to such castes and tribes shall in no way affect claims of the members of such castes and tribes for appointment in the services or on the post reserved for them under the Government o17 (rders issued from time to time. The State Government vide Circular No. PVS-1099-MVN-13-G-4 dated 29.01.2000 clarified that a reserved category candidate, if has not availed of any relaxation viz. age limit, experience, qualification, number of chances to appear in the examination, the said candidate will be adjusted in the open category and in case the candidate has availed any of the aforesaid relaxation, he/she will have to be adjusted against the reserved seats. This circular reads as under:
...After careful and mature consideration in this regard, it is clarified that only those Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes candidates who are selected on the same standards as applied to the general category candidates, shall be counted/adjusted against unreserved posts and not against the reserved posts. When relaxed standard have been applied in selection of candidates belonging to Scheduled Castes, Scheduled Tribes and Socially and educationally Backward Classes in terms of the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category, etc., then the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes candidates selected under such arrangement shall be counted against the reserved posts. Such candidates would be deemed as unavailable for consideration against unreserved posts.
17. The State Government came out with a further clarification vide Circular No. PVS-102003-900-G-4 dated 23.07.2004. In this circular, it was clarified as under:
...After careful consideration of Government in this regard, it is clarified that candidates belonging to Scheduled Caste/Scheduled Tribe/Socially and Educationally backward classes, who got selected on merit through competitive examination without availing any relaxation in prescribed standards for eligibility shall not be adjusted against the reserved posts but candidate belonging to the Scheduled Case/Scheduled Tribe/Socially and Educationally backward classes who got selected by availing relaxation in qualifying marks in competitive written examination and personal interview shall be counted against the reserved posts. However, reserved class candidates who have been granted exemption from paying examination fee shall not be barred from competing for an unreserved vacant post.
18. Thus, the appointments in the category of SC/ST and other backward classes to the post of class I and class III in the State Services are being governed by the aforesaid (Downloaded on 30/08/2019 at 01:49:37 AM) (30 of 42) [SAW-1733/2018] policies and the State Government and/or any Authorities effecting direct appointments are required to give effect to the aforesaid policy decision at the time of recruitment process viz. preparing the select list etc.
19. It is evident from the above two circulars that a candidate who has availed of age relaxation in the selection process as a result of belonging to a reserved category cannot, thereafter, seek to be accommodated in or migrated to the general category seats.
20. The State of Gujarat framed the Rules for regulating the recruitment to the post of ACF in Gujarat Forest Services Class II recruitment Rules 2007.
(i) The Assistant Conservator of Forests in the Gujarat Forest Service, Class-II Recruitment Rules, 2007
(ii) The Assistant Conservator of Forests in the Gujarat Forest Service Class-II Recruitment (Amendment) Rules, 2008.
(iii) The Assistant Conservator of Forests in the Gujarat Forest Service, Class-II Recruitment (Amendment) Rules, 2009.
21. Similarly, the State of Gujarat has made the following Rules for regulating recruitment to the post of RFO Class II:
(i) The Range Forest Officer, Class-II Recruitment Rules, 2008.
(ii) The Range Forest Officer, Class-II Recruitment (Amendment) Rules, 2008.
(iii) The Range Forest Officer, Class-II Recruitment (Amendment) Rules, 2009.
22. The State Government vide Notification dated 18.09.2008 framed the Examination Rules of 2008.
23. In the advertisement published by the GPSC inviting applications from the eligible candidates for the post of ACF (Class II) and RFO (Class II) dated 01.03.2010, upper age limit relaxation was granted to the candidates belonging to SC/ST and SEBC category. It was also specifically stated in the advertisement that if any candidate belonging to reserved category who applies in the open category, such candidate would not get the benefit of age relaxation. Such age relaxation was granted in pursuance to Rule 8 of Rules of 1967.
8. Condition as to prescribed qualifications:
1) xxxx
2) Where the prescribed qualification include a qualification as to age limit the appointing authority may relax the age limit in favour of candidates belonging to the Scheduled (Downloaded on 30/08/2019 at 01:49:37 AM) (31 of 42) [SAW-1733/2018] Castes, Scheduled Tribes and Socially and Educationally Backward Class and in favour of candidate who are women to the following extent, that is to say:
(a) in the case of a service or post in a subordinate service or of a State Service in respect of which the prescribed age limit does not exceed forty years, the age limit may be relaxed to the extent of five years.
(b) in the case of service or post in the State Service in respect of which prescribed age limit exceeds forty years, the age limit may be relaxed to the extent of maximum five years, so as to provide that upper age limit for entry in the service does not exceed forty five years.
24. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time.
25. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post.
26. Now, let us consider the judgment in Jitendra Kumar Singh (supra). In this case, this Court was considering the interpretation of Sub-section (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Subsection (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under:
(6) If a person belonging to any categories mentioned in Sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under Sub-section (1).(Downloaded on 30/08/2019 at 01:49:37 AM)
(32 of 42) [SAW-1733/2018]
27. The State of U.P. issued Instructions dated 25.03.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Groups in the Uttar Pradesh Public Services. Last line of these instructions is as under:
It shall be immaterial that he has availed any facility or relaxation (like relaxation in age-limit) available to reserved category.
28. On consideration of Sub-section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated 25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal.
Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.
29. In Deepa (supra), the Appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under:
3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies.
30. The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.
31. Similar question arose in Gaurav Pradhan (supra). In this case the Government had issued Circular dated 24.06.2008 which is as under:
(Downloaded on 30/08/2019 at 01:49:37 AM)(33 of 42) [SAW-1733/2018] Circular dated 24-6-2008
6.2. In the State, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.
32. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under:
32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25-3-1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24-6-2008.
33. The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the Respondents.
34. The judgment in Ajithkumar (supra) relied on by the learned senior Counsel for the Appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category.
35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated 11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the Appellant in any manner.
36. There is also no merit in the submission of the learned Counsel for the Appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial (Downloaded on 30/08/2019 at 01:49:37 AM) (34 of 42) [SAW-1733/2018] stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation Under Article 16(4) of the Constitution of India."
27. This issue had been earlier dealt with by another decision of the Supreme Court in Vikas Sankhala & Ors. vs. Vikas Kumar Agarwal and Ors 2017 (1) SCC 750. The court had then observed as follows:
"59. The learned Counsel for the general category candidates, on the other hand, maintained that TET was a part of recruitment process and relaxation in passing marks in that examination amounted to giving concession to reserved category candidates and after availing such concession they were not entitled to migrate to general category. It was also submitted that insofar as decision of the State contained in letter dated May 11, 2011 is concerned, it was rightly held by the High Court that norms could not be changed after the selection process has started.
60. Having regard to the respective submissions noted above, first aspect that needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be so on the premise that para 9(a) dealing with such relaxation in TET marks forms part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in guidelines/notification dated February 11, 2011. These guidelines pertain to conducting of TET. Basic features whereof have already been pointed out above. Even para 9 which provides for concessions that can be given to certain reserved categories deals with 'qualifying marks' that is to be obtained in TET examination. Thus, a person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is marks in TET. So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally (Downloaded on 30/08/2019 at 01:49:37 AM) (35 of 42) [SAW-1733/2018] get less marks under this head. We like to demonstrate it with an example. Suppose a reserved category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14 marks in recruitment process. Thus, on the basis of TET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, "level playing field" is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks.
Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET.
61. Once this vital differentiation is understood, it would lead to the conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of circular dated May 11, 2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc., except on fee and age.
62. In Jitendra Kumar Singh and Anr. v. State of Uttar Pradesh and Ors. MANU/SC/0032/2010 : (2010) 3 SCC 119, this Court has very categorically held that relaxations given in educational qualifications etc. making a person eligible to participate in selection process would not be treated as availing benefits in the recruitment/employment and the benefits envisaged have to be those which have direct relation to recruitment/employment and are relatable to the jovial relationship of employer and employee. It is also clarified that such benefits must occur from and should be post 'level playing field'. We would like to reproduce the following discussion from the said judgment touching upon the aforesaid aspects:
48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the Appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved (Downloaded on 30/08/2019 at 01:49:37 AM) (36 of 42) [SAW-1733/2018] category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration.
The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list.
49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed Under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.
xx xx xx
75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned Counsel for the Appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition.
It is stated at the cost of repetition that provision of giving 20% marks of TET score was applied to all candidates irrespective of the category to which he/she belongs and, therefore, no concession or relaxation or advantage or benefit was given in this behalf which could disturb the level playing field and tilt advantage in respect of reserved (Downloaded on 30/08/2019 at 01:49:37 AM) (37 of 42) [SAW-1733/2018] category candidate. On the contrary, the reserved category candidates who had secured less marks in TET examination are given lesser marks in the recruitment process on the application of the formula of allocating 20% marks of TET score. Question No. 3 is answered accordingly.
63. These appeals are accordingly allowed in the manner indicated in this judgment, effect whereof would be as under:
(a) Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the Government in its communication dated March 23, 2011 to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the State Government.
(b) Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category."
28. Thus, Gaurav Pradhan, Vikas Sankhala (supra) and Dilipbhai (supra) have all dealt with the issue of whether reserved category candidates who avail some concession (for belonging to such reserved categories) should be granted the benefit of "migration" to the general category vacancies. It could be argued that each depended on the circulars issued by the concerned governments, (i.e. States of Gujarat and Rajasthan), and the court went by the interpretation of the instructions and contents of those circulars. Yet, in both Gaurav Pradhan and Vikas Sankhla, (both of which dealt with recruitments relatable to the State of Rajasthan), the view expressed was that if a reserved (ST/SC or OBC) category candidate availed of age relaxation, she or he could not be "migrated" to the general category, in the event of better performance on merit. This was underlined in Gaurav Pradhan:
"we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the (Downloaded on 30/08/2019 at 01:49:37 AM) (38 of 42) [SAW-1733/2018] unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court."
29. The learned Single Judge was of the opinion that since there was no skill involved on the part of the candidates, in the present case, as the recruitment was lottery based, the above rule (i.e against migration) cannot apply. This court is of the opinion that the view is erroneous. In the first place a reserved category candidate's name is included - in the schedule and method of recruitment, early. It is after exhausting chances as a reserved category candidate (and further sub reservations included therein for persons with disabilities, for women, etc) that the draw of lots for residual vacancies is held. Such being the case, in the absence of a procedure involving testing an individual's skill, or proficiency, where the draw of lots solely determines the recruitment, granting of multiple chances to one who would be otherwise ineligible to participate in the process as against the open category vacancies, would be in violation of Article 14. It is therefore, held that selection of the reserved category candidates who availed of age relaxation concessions based on the draw of lots as against open category vacancies is contrary to law.
30. Some of the appellants had argued that since the entire recruitment is based on draw of lots and does not involve any element of skill, reserved category candidates' names should not (Downloaded on 30/08/2019 at 01:49:37 AM) (39 of 42) [SAW-1733/2018] have been included in the draw of lots held for open category candidates, as they could not be considered against such open quota. This court is of the opinion that the open category vacancies are not part of any quota. Although the rule of "migration" was articulated in the context of reserved category candidates performing and securing results comparable to or better than candidates of the unreserved category, nonetheless, the fact remains that both "categories" are candidates. That the reserved category belong to classes who are inadequately represented, places them in a different position, in that they are to the extent of reservation and their merit, assured of a better chance of appointment. Nonetheless, they as well as the unreserved category candidates fulfil the description of eligible individuals, entitled to equal treatment. This equal treatment, without the benefit of reservation, is afforded in competition or any other mode adopted for the unreserved category vacancies. Therefore, reserved category candidates' names cannot be excluded from the draw of lots held for the residual, unreserved category of candidates, as those vacancies are not part of any quota. The appellants submissions, on this aspect are therefore, rejected.
31. The next important issue is whether the State could have withdrawn the vacancies that were notified for recruitment in 2012, and include them in the later selection process. The chequered history of the recruitment process and the number of times it was subjected to the vagaries of litigation, in the opinion of the court, has contributed somewhat to the decision of the State to combine the vacancies. In this context, the court notices that the Constitution bench judgment in Shankarsan Dash v Union of India 1991 (3) SCC 47 had ruled as follows:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an (Downloaded on 30/08/2019 at 01:49:37 AM) (40 of 42) [SAW-1733/2018] invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.
This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Ors. (1973) IILLJ 266 SC; Miss Neelima Shangla v. State of Haryana and Ors. [1986] 3 SCR 785 and Jitendra Kumar and Ors. v. State of Punjab and Ors. [1985] 1 SCR 899."
32. Keeping the principle enunciated in Dash (supra), it is evident from the facts in the present set of appeals that the recruitments, which were initiated in 2012, were bogged down by litigation; the earmarking of vacancies, the lottery system, allegations of introduction of the lottery system mid-stream, increase in the number of vacancies, etc became the subject matter of multiple writ petitions which led to court interventions on about five occasions. The incomplete recruitment, (incomplete because some vacancies had been filled up but in regard to others either the process had not been completed, or the select lists not fully operated), and vacancies accruing later, were all combined; those who could not be appointed, due to the discontinuance of the selection process (of 2012) were allowed to participate in the fresh process; they were afforded age relaxation, apart from those candidates who fulfilled the eligibility criteria. In these circumstances, the State's decision to carry out the entire exercise afresh, after combining the left-over vacancies (of 2012) cannot be faulted. This contention, therefore, fails. Likewise, in the opinion of the court, the petitioners in Ravindra have not made out a cause for intervention; that names of some of them were included in the select list, cannot be the basis for holding the 2018 recruitment arbitrary; nor can they enforce any right, as (Downloaded on 30/08/2019 at 01:49:37 AM) (41 of 42) [SAW-1733/2018] candidates selected in the 2012 recruitment process. Clearly, the vacancies from that selection process could be clubbed with later vacancies and made subject of a fresh recruitment process. No rule or regulation, or binding norm which precluded the State from holding a recruitment in respect of such combined vacancies was shown to the court.
33. As far as the last contention, with regard to inclusion of names of ineligible candidates, or those who submitted false information or declarations (with respect to their fulfilling any eligibility condition, or their applying for more than one vacancy, or more than one member of the same family applying, contrary to terms of the advertisement is concerned) this court is of the opinion that the state should take expeditious action to delete their names from the select list, in accordance with law. In the case of candidates whose names were deleted, it is a matter of record that many of them have approached the court. Their names shall be dealt with in accordance with the final order of the court, in their cases.
34. As a result of the above discussion, the appeals have to succeed in part; the respondent State shall draw the select list, after excluding the names of those reserved category candidates, who were granted age relaxation, and were afforded the opportunity of participation in the selection through draw of lots, for the open category. A fresh select list, based upon a new draw of lots to be conducted from amongst names of all eligible candidates, (excluding those reserved category candidates who had availed age relaxation benefits, but were allowed a second chance in the draw of lots for the general category candidates) shall be prepared, in respect of balance vacancies. The respondents shall also ensure that names of ineligible candidates, or those who made false declarations are suitably removed, in accordance with law; this is subject to the final outcome of the proceedings initiated by such candidates.
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35. In the light of the foregoing discussion, the appeals are partly allowed; all applications too are therefore, disposed of.
(DINESH MEHTA),J (S. RAVINDRA BHAT),CJ
Parmar/-
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