Rajasthan High Court - Jaipur
Vijay Laxmi Parashar D/O Brij Mohan ... vs State Of Rajasthan on 8 July, 2021
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7043/2021
Vijay Laxmi Parashar D/o Brij Mohan Parashar W/o Dharmendra
Kumar Sharma, Aged About 40 Years, R/o 1278, Mali Colony,
Chandpole Bazar, Sikar House, Jaipur, District-Jaipur, (Rajasthan)
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Women
And Child Development Department, Govt. Of Rajasthan,
Secretariat, Jaipur.
2. Secretary, Department Of Personnel, Govt. Of Rajasthan,
Secretariat, Jaipur.
3. Director, Women And Child Development Department,
Directorate, Integrated Child Development Service, 2,
Janpath, Gandhi Nagar, Jaipur
4. Rajasthan Employee Selection Board, State Agriculture
Management Institutional Premises, Durgapura, Jaipur,
Through Its Secretary.
----Respondents
For Petitioner(s) : Mr. S.S. Solanki.
For Respondent(s) :
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
08/07/2021
Counsel for the petitioner submitted that the issue involved
in this writ petition has already been considered and decided by
the Co-ordinate Bench of this court in the matter of Surendra
Singh Rathore Vs. State of Rajasthan and others (S.B. Civil
Writ Petition No.13208/2019 and other connected
petitions) wherein on 06.12.2019 it has been held as under:-
1. Since common questions of law involved and
same decision of the Government being under
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challenge, all the aforesaid writ petitions were heard
and being decided by this judgment which shall
apply on all the petitions.
2. All these writ petitions can be categorized with
respect to the posts for which claim has been set up
by the respective writ petitioners for seeking
consideration for appointment under the
Economically Weaker Section (for short 'EWS')
quota. However, before doing so, certain facts,
which put the writ petitioners in a common string,
are required to be noted.
3. The Constitution of India was amended by the
Parliament in its 69th year of the Republic of India
by enactment which was published in the Gazette of
India, Extraordinary, Part-II, Section-1 on
12/01/2019 known as The Constitution (One
Hundred And Third Amendment) Act, 2019, as
under:-
2. In article 15 of the Constitution, after clause (5),
the following clause shall be inserted, namely:--
(6) Nothing in this article or sub-clause (g) of clause
(1) of article 19 or clause (2) of article 29 shall
prevent the State from making
(a) any special provision for the advancement of any
economically weaker sections of citizens other than
the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any
economically weaker sections of citizens other than
the classes mentioned in clauses (4) and (5) in so
far as such special provisions relate to their
admission to educational institutions including
private educational institutions, whether aided or
unaided by the State, other than the minority
educational institutions referred to in clause (1) of
article 30, which in the case of reservation would be
in addition to the existing reservations and subject
to a maximum of ten per cent. of the total seats in
each category.
Explanation.--For the purposes of this article and
article 16, "economically weaker sections" shall be
such as may be notified by the State from time to
time on the basis of family income and other
indicators of economic disadvantage.'.
3. In article 16 of the Constitution, after clause (5),
the following clause shall be inserted, namely:--
"(6) Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favour of any economically
weaker sections of citizens other than the classes
mentioned in clause (4), in addition to the existing
reservation and subject to a maximum of ten per
cent. of the posts in each category.".
4. The Government of Rajasthan issued a
notification dated 13/02/2019 whereby The
Rajasthan Backward Classes (Reservation of Seats
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in Educational Institutions in the State and of
Appointments and Posts in Services under the State)
(Amendment) Act, 2019 was enacted providing as
under:-
"LAW (LEGISLATIVE DRAFTING) DEPARTMENT
(GROUP P.II)
Jaipur, February 13, 2019
No. F.2(12) Vidhi/2/2019. In pursuance of
clause 93) of Article 348 of the Constitution of India,
the Governor is pleased to authorize the publication
in the Rajasthan Gazette of the following translation
in the English Language of Rajasthan Pichhada Varg
(Rajya ki Shaikshik Sansthaon Mein Seeton Aur
Rajya Ke Adheen Sevaon Mein Niyuktiyon Aur Padon
ka Aarakshan) (Sanshodhan) Adhiniyam, 2019
(2019 ka Adhiniyam Sankhyank 2) :-
(Authorised English Translation)
THE RAJASTHAN BACKWARD CLASSES
(RESERVATION OF SEATS IN EDUCATIONAL
INSTITUTIONS IN THE STATE AND OF
APPOINTMENTS AND POSTS IN SERVICES UNDER
THE STATE)
(AMENDMENT) ACT, 2019
(ACT NO. 2 OF 2019
(Received the assent of the Governor on the 13th day
of February, 2019)
An
Act
Further to amend the Rajasthan backward Classes
(Reservation of Seats in Educational Institutions in
the State and of Appointments and Posts in Services
under the State), Act 2017
Be it enacted by the Rajasthan State Legislature
in the Seventieth Year of the Republic of India as
follows :-
1. Short title and commencement - (1) This Act
may be called the Rajasthan Backward Classes
(Reservation of Seats in Educational Institutions in
the State and of Appointments and Posts in Services
under the State) (Amendment ) Act, 2019.
2. It shall come into force at once.
"2. Amendment of section 3, Rajasthan Act No. 38 of
2017.- For the existing sub-section (1) of section 3 of
the Rajasthan Backward Classes (Reservation of
Seats in Educational Institutions in the State and of
Appointments and Posts in Services under the State)
Act, 2017 (Act No. 38 of 2017), hereinafter in this Act
referred to as the principal Act, the following shall be
substituted, namely:-
"(1) The reservation in respect of the annual
permitted strength for admission into such
educational institutions and courses in the State, as
may be prescribed, for the More Backward Classes
shall be five percent.".
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3. Amendment of section 4, Rajasthan Act No. 38 of
2017.- For the existing sub-section (1) of section 4 of
the principal Act, the following shall be substituted,
namely :-
"(1) The reservation of appointments and posts in
the, services under the State for the More Backward
Classes shall be five percent.".
5. The Government of Rajasthan, exercising
powers under proviso to Article 309 of the
Constitution accordingly made amendments in the
various service rules as mentioned in the Schedule
vide notification dated 19/02/2019 providing as
under:-
"GOVERNMENT OF RAJASTHAN
DEPARTMENT OF PERSONNEL
(A-Gr. II)
No. F 7(1) DOP/A-II/2019 Jaipur,dated : 19.02.2019
NOTIFICATION
In exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India, the
Governor of Rajasthan hereby makes the following
rules further to amend the Various service Rules as
mentioned in the Schedule appended hereto,
namely:-
1. Short title and commencement (1) These
rules may be called the Rajasthan Various service
(Amendment) Rules, 2019.
(2) They shall come into force with immediate
effect.
"2. Amendment.-(l) After the existing rule
mentioned in column number 3 against each of the
service rules as mentioned in column number 2 of the
Schedule given below, the following new rule as
mentioned in column number 4 shall be added,
namely:
"Reservation of vacancies for Economically
Weaker Sections:- Reservation of vacancies for
Economically Weaker Sections shall be 10% in direct
recruitment in addition to the existing reservation. In
the event of non- availability of eligible and suitable
candidate amongst Economically Weaker Sections in a
particular year, the vacancies so reserved for them
shall be filled in accordance with the normal
procedure.
Explanation: For the purpose of this rule
'Economically Weaker Sections' shall be the persons
who are bonafide resident of Rajasthan and not
covered under the existing scheme of reservations for
the Scheduled Castes, the Scheduled Tribes, the
Backward Classes, the More Backward Classes and
whose family has gross annual income below rupees
8.00 lakh. Family for this purpose will include the
person who seeks benefit of reservation, his/her
parents and siblings below the age of 18 years as also
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his/her spouse and children below the age of 18
years. The income shall include income from all
sources i.e. salary, agriculture, business, profession
etc. and it will be income for the financial year prior
to the year of application. Also persons whose family
owns or possesses any of the following assets shall be
excluded from being identified as, 'Economically
Weaker Sections', irrespective of the family income:-
(i) 5 acres of Agricultural Land and above;
(ii) Residential flat of 1000 sq. ft. and above;
(iii) Residential plot of 100 sq. yards and above in
notified municipalities; or
(iv) Residential plot of 200 sq. yards and above in
areas other than the notified municipalities.".
(2) In the existing rule as mentioned in the column
number 5 against each of the service rules as
mentioned in the column number 2 o f the Schedule
given below, for the existing expression "woman
candidates belonging to general category and
Economically backward classes", the expression
"woman candidates belonging to General Category,
Economically Backward Classes and Economically
Weaker Sections shall be substituted."
6. On 23/06/2019, the Department of Personnel,
Government of Rajasthan issued circular/ order to the
RPSC/Staff Selection Board whereby it directed that
the MBC reservation of 5% would be provided to all
pending recruitments as on date of notification but
EWS category reservation would be extended to only
those pending recruitments where no examination
had been held.
7. In all the present writ petitions, the writ
petitioners are assailing the said circular dated
23/06/2019 issued by the Department of Personnel
alleging it to be discriminatory, arbitrary and
unreasonable and thereby violative of Article 14 of the
Constitution of India towards those category of
persons who claim themselves to be from EWS
category and further prayed that they should be
extended the benefit of EWS reservation in all the
pending selections/recruitments which were not
completed on the date of issuance of the notification
dated 19/02/2019 and have therefore, prayed for
setting aside the circular/letter dated 23/06/2019.
8. Coming to the facts of these writ petitions, the
writ petitions are categorized as under according to
the name of the posts for which the selection process
is being conducted:-
A 1. SBCWP No. 13370/2019 Brij Lal Sharma and Others Vs. State & Others
2. SBCWP No. 13415/2019 Gorav Dhadhich and anothers Vs. State & Anr.
3. SBCWP No. 13208/2019 Surendra Singh Rathore Vs. State & Others
Medical & Health Department
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Nurse Grade-II 30.5.2018 3.7.2018 No Exam Exercise Final Merit list Pending
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already
B 1. SBCWP No. 13030/2019 Mahendra Kumar Sharma Vs. State and Others
Department of Education Secondary
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Head Master 28.3.2018 9.5.2018 2.3.2018 19.7.2019 Counselling
Appointment Pending
(1200)
C 1. SBCWP No. 13577/2019 Rajendra Kumar Sharma Vs. State and Others
2. SBCWP No. 13468/2019 Mohit Kumar Sharma and others Vs. State and Others
3. SBCWP No. 12088/2019 Bharat Kumar Sharma Vs. State & anothers
Department of Education Secondary
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Senior Teacher 9.4.2018 9.6.2018 31.10.2018 29.9.2019 Appointment
(Counselling)
Pending
Garade-II to
2.11.2018
D 1. SBCWP No. 16910/2019 Sher Singh Rajput Vs UOI and Others
2. SBCWP No. 9033/2019 Sejad Kha and other Vs RSMSSB & another (No Party)
Department of Education Secondary
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Physical Training 4.5.2018 29.6.2018 30.9.2018 29.1.2019 Document Verification
Instructor
Grade-III
E 1. SBCWP No. 13436/2019 Hitesh Joshi and another Vs State & others
Department of Information and Technology
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Informatics 27.2.2018 27.4.2018 12.5.2018 22.7.2019 Appointment Made
Assistants to
5.10.2018
F 1. SBCWP No. 13411/2019 Pratibha Sharma and another Vs RSMSSB & another (No Party)
2. SBCWP No. 17037/2019, Sunita Sharma Vs. State and others.
3. SBCWP No. 13847/2019, Kum. Kalpana Vs. State and others.
Women & Child Development - Staff Selection Board
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Anganbadi 1.10.2018 3.11.2018 3.3.2019 22.7.2019 Document Verification
Worker Female
(309)
G 1. SBCWP No. 14888/2019 Girdhari Sharma and others Vs RSMSSB & another
Department of Commercial Taxes
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Tax Assistants 14.3.2018 18.5.2018 14.10.2018 25.2.2019 Appointment Pending
H 1. SBCWP No. 13210/2019 Ashish Kumar Sharma and others Vs JVVNL & another
Department of Energy- JVVNL
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Helper II 7.9.2018 21.9.2018 26.12.2018 - Document Verification
to 3.2.2019
I 1. SBCWP No. 15088/2019 Deependra Singh Naruka and others Vs JVVNL & another
Department of Personnel - Common Exam
Name of Exam Date of Last Date Exam Date Result Status
Advt.
A. En. (Civil 5.4.2018 29.5.2018 16.12.2018 18.7.2019 Document Verification
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Engineer) to
18.12.2018
J 1. SBCWP No. 5881/2019 Chetan Sharma Vs RSSB & ohters
2. SBCWP No. 6023/2019 Shashi Kant and another Vs RSMSSB & another
3. SBCWP No. 6861/2019 Bhaumesh Gautam Vs RSMSSB & another
4. SBCWP No. 14065/2019 Prasant Sharma Vs RSMSSB & another
Department of Personnel - Common Exam
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Clerk Grade-II 16.4.2018 8.6.2018 12.8.2018 7.3.2019 Document Verification
Junior Assistant to
16.9.2018
K 1. SBCWP No. 12553/2019 Devendra Singh Vs. State
Department of Animal Husbandry
Name of Exam Date of Last Date Exam Date Result Status
Advt.
Live Stock 14.3.2018 21.10.2018 29.1.2019 Result
Assistant directed
to bew
revised
vide order
dated
28/9/201
9 followed
13/9/201
9
9. Mr. Shobhit Tiwari, learned counsel for the
respective writ petitioners submitted that a
discrimination perse could not have adopted
between the grant of benefit of 5% reservation to
MBC candidates in the existing selection process
and grant of 10% reservation to EWS category of
candidates. He submitted that the order dated
23/06/2019 has been passed which seeks to deny
the benefit already granted to the EWS candidates
vide notification dated 19/02/2019 for the
selection process which is underway. He submitted
that the notification dated 19/02/2019 had come
into force with immediate effect and there was no
power available with the State Government to
withhold the benefit provided under the
notification to the EWS candidates while allowing
MBC reservation for the post of PTI Grade-III
under the advertisement issued for PTI Direct
Recruit Examination, 2018. He submitted that no
prejudice could be caused and there can be no
reason for denying the benefit on a specious plea
that the examination had already taken place. He
further submitted that 4% reservation was
provided vide another notification dated
24/01/2019 for physically handicapped persons.
The same has been applied without any
discrimination to all pending recruitments and
since the reservations i.e. for PH category, MBC
reservation and EWS reservation are vertical,
parity was required to be maintained in granting
reservations. He further submitted that in SB Civil
Writ Petition No.14086/2019, decided on
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09/09/2019, this Court held the action of
withholding EWS reservations in All India
Ayurveda Post Graduation Entrance Test, 2019 as
unjustified and directed for conducting counseling
separately for 10% seats to be provided under the
EWS category. Learned counsel submitted that in
PG Medical Courses also, EWS reservation has
been allowed in the pending selection. It is
submitted that the Administrator cannot exercise
discriminately the application of reservation. It is
further submitted that if EWS reservation is not
provided to them, the MBC reservation should also
not apply in pending selections.
10. Mr. RP Saini, learned counsel who appeared for
cases where the post concerned is that of Nurse Grade-
II, submitted that the order/letter dated 23/06/2019
would have no application and the reservation of EWS
cannot be denied to candidates as there is no
examination conducted for selection for the post.
11. Mr. RB Sharma, counsel for the petitioners in SB
Civil Writ Petition No.5881/2019, submitted that the
advertisement specifically mentions that all
amendments which may be made relating to
reservation shall apply to the advertisement. The EWS
reservation would apply in relation to the posts of
general category and there is no occasion for taking of
option from any candidate. It is submitted that the
respondents cannot deny the benefit of EWS to the
candidates who have applied as in all the
advertisements which are issued by the RPSC (his case
relating to Clerk Gr. II/Junior Assistant Examination,
2018), there is a column mentioning whether income of
the candidate is less than Rs.2.5 lac. It is submitted
that when MBC reservation of additional 4% has been
allowed in all the pending selections and shadow posts
have been created, the similar exercise could have been
conducted for EWS also and the Government has failed
to conduct its exercise for the purpose of extension of
rights created by the statute in favour of the existing
EWS candidates.
12. The other lawyers appearing in the respective writ
petitions, have adopted the aforesaid arguments.
13. Per-contra, Mr. MS Singhvi, learned Advocate
General argued that there is no legal right created in
favour of any candidate as no final selections have been
made. He submitted that reservation is an exception
brought about by an enabling provision and no
mandamus can be claimed for reservation. He relied
upon the judgment of the Apex Court in Ajit Singh and
others (II) Vs. State of Punjab and others: (1999) 7
SCC 209. He submitted that the benefit had already
been issued in all the cases and for the purpose of grant
of EWS reservation, which was in addition to the
existing reservations, the State was required to issue
fresh advertisement or corrigendum as those
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candidates, who may have applied, would have no
information about coming into force of the EWS
reservation and would be therefore, deprived of
participation in the selection process. In support of this
submission, he relied upon the judgments rendered by
the Apex Court in T.M.A. Pai Foundation & ors. Vs. State
of Karnataka & ors.: (2002) 8 SCC 481; Chairman and
Managing Director, Central Bank of India & ors. Vs.
Central Bank of India SC/ST Employees Welfare
Association & ors.: (2015) 12 SCC 308; Mangalam
Organics Limited Vs. Union of India: (2017) 7 SCC 221
and K.V. Rajalakshmiah Setty & anr. Vs. State of
Mysore & anr. : AIR 1967 (SC) 993. He submitted that
a claim for separate reservation of EWS can only be
extended by providing it in the terms of the
advertisement. On the other hand, the reservation for
physically disabled persons as well as for MBC quota
was already provided in the advertisement relating to
pending selections. The only difference is that the same
has been increased from 3% to 4% and 1% to 5%
respectively. Thus, there is no requirement of additional
applications to be invited from open market as already
the candidates had applied under the PH category or
MBC category and in the circumstances, therefore, the
order dated 23/06/2019 was issued which provided that
MBC reservation would apply to all pending selections
while EWS reservation would apply to those categories
where examinations have not been conducted, meaning
thereby, a corrigendum could be issued for inviting
applications against EWS category. Learned Advocate
General relied on law in this regard which shall be dealt
with later on.
14. Learned Advocate General further submitted that
where result has already been declared or final select
list has been prepared, the implementation of
reservation of EWS was wholly impracticable and cannot
be applied as fresh candidates who are not party to
these petitions would be deprived from participation
and would suffer discrimination. Secondly none of the
candidates who have already been placed in the select
list have been impleaded as party. If EWS reservation is
to be applied, the result already declared or final select
list already published will have to be revised and affect
placement of such selected candidates. Learned
Advocate General has relied on judgments of the Apex
Court rendered in Prabodh Verma & ors. Vs. State of
Uttar Pradesh & ors and other connected matters:
(1984) 4 SCC 251 and in State of Rajasthan Vs. Ucchab
Lal Chhanwal: (2014) 1 SCC 144 in support of the
aforesaid arguments.
15. With regard to the argument advanced by learned
counsel for the petitioners that if the benefit of EWS is
not extended, the benefit of 4% to MBC ought not be
extended and the parity should be maintained, is a
negative erroneous argument, it is submission of the
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learned Advocate Genreal that none of the MBC
candidate, who is getting the benefit under the order
dated 23/06/2019 has been impleaded as party. He
relies on the judgment of the Apex Court in Kumari
Chitra Ghosh & anr. Vs. Union of India & ors.:AIR 1970
(SC) 35 to submit that the petitioners are not
competent to challenge the MBC reservation as 4%
reservation, which has been extended to MBC, would
not go to the petitioners. It was his submission that in
the case of petitoner-Sher Singh Rajput, such a prayer
which has been made is wholly untenable and
unreasonable. It was also pointed out that a PIL was
preferred, however, the Division Bench refused to grant
any interim order.
16. In rejoinder, learned counsel for the petitioners
submitted that there is no need to redo the entire exercise as bifurcation amongst the candidates who had already applied could be done with regard to EWS reservation. It was submitted that the petitioners are not seeking reservation but are only seeking implementation of the notification dated 19/02/2019 and mandamus in this regard could always be claimed. It was further submitted that the MBC reservation of 4% has affected the result of the general candidates as 4% seats have been cut down against the general category candidates, moreover, the technical defects cannot come in the way for implementation of a right created under a legislation.
17. Learned counsel for the petitioners have relied on the view taken by this Court in Rahul Kumar Sharma Vs. Union of India & ors (SB Civil Writ Petition No.14086/2019), decided on 09/09/2019 whereby this Court having examined implementation of the One Hundred Third amendment made in the Constitution, directed the Union of India to act according to the directions and decision taken by the Union of India to provide reservation immediately in present Session 2019-20.
18. I have thoughtfully reflected on the aforesaid arguments noted above. Following aspects in the writ petitions are required to be noticed:-
(a) For recruitment to the post of Nurse Grade-II, the exercise has already been conducted.
(b) For recruitment to the post of Head Master, exercise has already been conducted.
(c) For recruitment to the post of Senior Teacher Gr.- II, the exercise has already been conducted.
(d) For recruitment to the post of PTI Grade-III, the exercise has already been conducted
(e) For recruitment to the post of Informatics Assistants, the exercise has already been conducted.
(f) For recruitment to the post of Anganbadi Worker Female, the exercise has already been conducted.
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(h) For recruitment to the post of Helper-II, the exercise has already been conducted.
(i) For recruitment to the post of A.En. (Civil Engineer), the exercise has already been conducted.
(j) For appointment to the post of Clerk Grade-
II/Junior Assistant, the exercise has already been conducted.
(k) For appointment to the post of Live Stock Assistant, the exercise has already been conducted.
(l) In cases relating to Lecturers, the respondents have stated that they have added EWS reservation and are issuing a corrigendum.
(m) As regards the Live Stock Assistants, it has been informed that since final result was already declared and the same has been revised subsequently after issuing of the notification order 23/06/2019, hence the EWS reservation has not been extended.
(n) With regard to the selections for the post of Clerk Gr.-II/Junior Assistant, an interim order was passed whereby selections were stayed on 11/04/2019 in SB Civil Writ Petition No.5881/2019.
19. It needs no reiteration that once reservation is provided by the notification dated 19/02/2019 in the State Services and Subordinate Services by amending all the Service Rules under proviso to Article 309 of the Constitution of India, the said reservation becomes statutory and has to be implemented by the State Government.
20. This court has to examine whether the State Government while issuing letter dated 23.6.2019 has committed error while implementing the statutory reservation of EWS which was extended to all the State and Subordinate Services w.e.f. 19.2.2019.
21. In letter/order dated 23/06/2019 sent by the Department of Personnel to the Secretary, RPSC and Secretary, Rajasthan Staff Selection Board, Jaipur it was provided that so far as the MBC reservation is concerned, since there were already applicants who had applied for 1% reservation which was already existing, the notification dated 13/02/2019 increasing the reservation to 5% was directed to be implemented on the pending recruitments. It further states that "where the examination has already been declared, then in such pending selections, in order that no loss is caused to any other category of candidates, 4% additional posts for MBC shall be created and the concerned Finance Department shall conduct exercise for creation of such additional posts and in those recruitments, where no examination has been conducted, reservation for 5% for MBC in terms of the notification dated 13/02/2019 and 10% reservation for EWS in terms of notification dated 19/02/2019 shall be provided. For the said purpose, a revised division of posts shall (Downloaded on 12/07/2021 at 09:31:06 PM) (12 of 20) [CW-7043/2021] be carried out by the concerned Administrative Department and sent to the recruiting agency. For the said purpose, all category of candidates shall be allowed to move fresh applications and the eligibility shall also be considered accordingly meaning thereby those candidates who have already applied shall be allowed to make fresh applications or their pending applications may be considered. Those candidates who were already eligible under the earlier applications would be treated to be eligible under the new corrigendum also." As per Clause (C), it has been further provided that "those candidates who had applied earlier and have become eligible for benefit of EWS category under the notification dated 19/02/2019, need not apply again and such candidates who have already applied earlier would be given opportunity to submit the EWS certificate. The creation of the additional posts for MBC was sanctioned by the Finance Department.
22. On careful reading of the letter dated 23/06/2019, as noticed above, one finds that the State Government has implemented the notification dated 13/02/2019 for all the recruitments which are pending at any stage but so far as implementation of the EWS category reservation is pending as per notification dated 19.2.2019 is concerned, the same has been only allowed upto the category of recruitments where the result has not been declared or where the process has not been completed of filling up the forms by issuing corrigendum. The reason, which has been pointed out by the learned Advocate General that there will be other candidates who may not have applied for EWS category as the same was nowhere provided in the existing advertisements. If an examination has already been conducted, rights of candidates stand crystallized and their result would be declared category-wise as mentioned in the advertisement. It is, thus, apparent that the State Government has duly applied its mind to the method and manner in which implementation of reservation is to be conducted.
23. While the Constitution may provide, as an enabling provision, the reservation of various kind to various categories, the enabling provision would apply only when the State provides reservation in its recruitment Rules. Once a reservation is provided under the Rules by notification, it becomes binding on the State government to implement such a reservation.
24. In view of above, the submission of learned Advocate General that a right is not available, with the petitioners for implementation seeking of reservation is not found to be tenable. Claiming of reservation may not be a right available to a candidate but once the provision of reservation has (Downloaded on 12/07/2021 at 09:31:06 PM) (13 of 20) [CW-7043/2021] been incorporated in a given set of Rule framed under proviso to Article 309 of the Constitution, a candidate who has to apply for direct recruitment under the said Rules, gains a right of consideration for appointment under the said reservation category which is provided under the Rules. Thus, the petitioners cannot be ousted on the ground that they do not have any substantive right as it has been created after the notification dated 19/02/2019 issued by the State Government by incorporating EWS reservation in all the State and Subordinate Service Rules framed under proviso to Article 309 of the Constitution.
25. In Chairman and Managing Director, Central Bank of India & ors. Vs. Central Bank of India SC/ST Employees Welfare Association & ors. (supra), the Apex Court has held as under:-
26.......Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise."
26. However, on examining the petitioners' claim within the framework of Rules, a look at the chart, as noted above, shows that all these advertisements relating to the recruitments were issued before the notification dated 19/02/2019.
27. Each State and Subordinate Service Rule provides, as an omnibus rule, a rule relating to year- wise determination of vacancies as under:-
" 9 Determination of vacancies - {1} (a) Subject to the provision of these rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year.
(b) Where a post is to be filled in by a single method as prescribed in the rule or, the vacancies so determined shall be filled in by that method.
(c) Where a post is to be filled in by more than one method as prescribed in the rules or, the (Downloaded on 12/07/2021 at 09:31:06 PM) (14 of 20) [CW-7043/2021] apportionment of vacancies, determined under clause
(a) above, to each such method shall be done maintaining the prescribed proportion for the over all number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota.
(2) The Appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in."
28. Thus, the vacancies which are determined for direct recruitment under the Rules upto that year, are sent by the concerned Administrative Department to the recruiting agency for the purpose of recruitment and advertisements and in all the cases advertisement has been issued prior to notification dated 19/02/2019.. At the time of determination of vacancy, as there was no reservation available for EWS category, under the said Rules, therefore, the posts, which have been advertisement under the advertisement, cannot be said to be governed by the notification dated 19/02/2019.
29. In other words, the determination of vacancies for EWS was not available with the concerned department at the time of requisition sent to the recruiting agencies. Hence, the candidates, who have applied under the said advertisement, cannot claim selection on the said post for EWS category.
30. The decision of the State Government in determining the number of posts in cases where the recruitment is pending and examination has not been held, is found to be in consonance with the Rules as rule relating to determination of vacancies would be adhered.
31. The contention of learned Advocate General with regard to the fact that a fresh advertisement has to be issued, is therefore, found to be correct and in accordance with schemes of the Rules.
32. It is noticed that in the letter/decision dated 23/06/2019, the Department of Personnel has mentioned creation of additional 4% posts in order to complete 5% reservation for MBC. However, the State Government has not provided such creation of additional posts for EWS.
33. The creation or abolition of posts is an exclusive domain of the State Government and this Court cannot direct the State Government to create additional posts for the implementation of EWS reservation in the pending recruitments. Thus, the decision of the State Government in not implementing EWS reservation to the pending recruitments, where (Downloaded on 12/07/2021 at 09:31:06 PM) (15 of 20) [CW-7043/2021] the examinations have already been held or where the result has been declared, cannot be said illegal or contrary to the Rules which govern the said recruitment.
34. In T.M.A. Pai Foundation & ors. Vs. State of Karnataka & ors. (supra), Justice Ruma Pal, while partly dissenting the judgment, has observed about the concept of equality as under:-
345. 'Equality' which has been referred to in the Preamble is provided for in a group of Articles led by Article 14 of the Constitution which says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Although stated in absolute terms Article 14 proceeds on the premise that such equality of treatment is required to be given to persons who are equally circumstanced. Implicit in the concept of equality is the concept that persons who are in fact unequally circumstanced cannot be treated on par.
The Constitution has itself provided for such classification in providing for special or group or class rights. Some of these are in Part III itself [Article 26, Article 29(1) and Article 30(1)] Other such Articles conferring group rights or making special provision for a particular class include Articles 336 and 337 where special provision has been made for the Anglo-Indian Community. Further examples are to be found in Articles 122, 212 and other Articles giving immunity from the ordinary process of the law to persons holding certain offices. Again Articles 371 to 371(H) contain special provisions for particular States.
347. The equality, therefore, under Article 14 is not indiscriminate. Paradoxical as it may seem, the concept of equality permits rational or discriminating discrimination. Conferment of special benefits or protection or rights to a particular group of citizens for rational reasons is envisaged under Article 14 and is implicit in the concept of equality. There is no abridgment of the content of Article 14 thereby--but an exposition and practical application of such content."
35. Taking into consideration the aforesaid principle, if the order/decision dated 23/06/2019 is examined on the anvil of Article 14 of the Constitution, this Court finds that the State has made distinction between the classes namely; those who have been given the benefit of reservation vide order/decision dated 13/02/2019 i.e. for MBC category and those who have been placed under the EWS category.
36. In K.V. Rajalakshmiah Setty & anr. Vs. State of Mysore & anr. (supra), the Supreme Court was examining the demand raised by the petitioners therein that they should all receive benefits which the other promoted, before and after they had (Downloaded on 12/07/2021 at 09:31:06 PM) (16 of 20) [CW-7043/2021] received and thus should be awarded promotion as Assistant Engineers. The case of the State of Mysore was that the benefit was awarded as a concession to Surveyors who were posted as Officer Incharge of the Sub-Division who had been promoted from time to time to the cadre of Assistant Engineer. The batch was promoted on the recommendations vide notification relating to the said Surveyors alone. In the said situation, it was claimed by the Assistant Engineers that they had been discriminated as the special concession was awarded to the Surveyors ought to be given to them, the Supreme thus held as under:-
"12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession, but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. The indulgences shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, ad hoc indulgence should be meted out to the appellants before us."
37. Since the provision has already been made for reservation, a right would therefore exist in favour of the EWS candidates.
38. In The Comptroller and Auditor General of India & anr. Vs. K.S. Jagannathan & ors: AIR 1987 (SC) 537, the Supreme Court had taken a view that the High Court can exercise its jurisdiction under Article 226 of the Constitution to issue a writ of mandamus where the Government or public authority has failed to exercise the discretion conferred upon it by a statute or a Rule or a policy decision of the Government or has exercised such discretion malafidely or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. This view of the three Judges' Bench was, however, overruled by the Supreme Court in Ajit Singh and others (II) Vs. State of Punjab and others (supra) holding as under:-
(Downloaded on 12/07/2021 at 09:31:06 PM)(17 of 20) [CW-7043/2021] "32. Learned senior counsel for the reserved candidates, Sri K. Parasaran however contended that Article 16(4) and Article 16(4A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Reliance for that purpose was placed upon Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan MANU/SC/0066/1986 :
[1986]2SCR17 and also on Julius v. Lord Bishop which case was followed by this Court in Commissioner of Police v. Gordhandas Bhanji MANU/SC/0002/1951 : [1952]1SCR135 . We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran v. Union of India MANU/SC/0358/1967 : (1968)IILLJ407SC held that Article 16(4) conferred a discretion and did not create any constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reservation under Article 16(4) in certain Class I and Class II services. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused. Even in M.R. Balaji's case, the Constitution Bench declared that Article 16(4) conferred only a discretion. It is true that in Jagannathan's case, the three Judge Bench issued a mandamus, after referring to Article 142, that the Government must add 25 marks to SC/ST candidates who had taken the S.A.S. Examination for promotion as Section Officers and also that, in future, a reduced minimum marks must be provided and announced before the examination. The Court also observed that the Department had not passed orders as per a general O.M. of the Government dated 21.9.1977. But the attention of the Court was not drawn to the judgment of the Constitution Bench in C.A. Rajendran's case and other cases to which we have referred earlier. Further, if the State is of the opinion that in the interests of efficiency of administration, reservation or relaxation in marks is not appropriate, then it will not be permissible for the Court to issue a mandamus to provide for reservation or relaxation. We also note that in Superintending Engineer, Public Health v. Kuldeep Singh MANU/SC/0520/1997 : [1997]1SCR454 , Jagannathan 's case was followed and reference was made to Article 16(4) and Article 16(4A) and 19 the principle that where a power is coupled with a duty as in Julius v. Lord Bishop and Commissioner of Police v. Gordhandas Bhanji, the same could be enforced by the Court. But we may point out that (Downloaded on 12/07/2021 at 09:31:06 PM) (18 of 20) [CW-7043/2021] even in Kuldeep Singh's case, no reference was made to C.A. Rajendran and other cases. We, accordingly, hold that the view in Jagannathan and Kuldeep Singh's cases that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be said to be laying down the correct law."
39. For upholding an argument relating to discrimination, one has to examine the case whether the persons amongst whom discrimination is alleged, are similarly situated and come from the same class.
The classification of candidates on the basis of their respective categories cannot be said in any manner to be unjustified. Merely because one particular class of persons has been put to an additional advantage vis- a-vis another class, it cannot be said that there has been a violation of Article 14 of the Constitution. It is within the same class of individuals that the right exists for claiming parity.
40. In H.P. Gupta & anr. Vs. Union of India & ors.:
(2002)10 SCC 658, the Supreme Court held as under:-
"5..........There cannot be perfect equality in any matter on an absolute scientific basis and there may be certain inequities here and there. If the classification is correct and serves a particular purpose, the same is not to be Judicially interfered with. If the argument advanced on behalf of the Appellant is accepted, then the scheme itself will become ineffective though it may result in giving uniform treatment to all. Thus, the incentive scheme will stand scrapped and such an event should be avoided. In this view of the matter, we decline to interfere with the order made by the Tribunal. The appeal is accordingly dismissed. No costs."
41. In a recent judgment in Rajasthan State Road Transport Corporation Vs. Dinesh Khan: 2019(13) SCALE 609, the Supreme Court extended the theory of classification between two categories of dependents of deceased employees as reasonable and held as under:-
"8. The dependents of a deceased employee who claim compensation from the Corporation under the Act and compassionate appointment from the Appellant- Corporation from a separate class. It is well-settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes (Downloaded on 12/07/2021 at 09:31:06 PM) (19 of 20) [CW-7043/2021] persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question."
42. This Court further finds that the decision of the authority in applying EWS reservation in pending selections where examination has been held is equitous and allows participation of all the persons who may fall under EWS category. The contention of learned counsel for the petitioners that EWS category candidates should be identified from the existing applicants alone, would perse be discriminatory amongst all the candidates who would otherwise fall in EWS category but have been deprived to participate for the said category posts. Examining on the said basis, this Court finds that the decision taken by the State Government dated 23/06/2019 confirms the principles ingrained in Article 14 of the Constitution.
43. Another prayer made by learned counsel for the petitioners that if reservation has not been provided in the pending selections to the EWS category candidates where result has been declared or select list has been published and therefore, the reservation to MBC candidate should also not be given, is noted to be rejected. Apart from what has been stated above that both the categories form a different class, this Court agrees with the contention raised by learned Advocate General that none of the MBC category candidate is a party before us and in their absence, no order can be passed. The law relating to impleadment of necessary parties has been settled in Prabodh Verma & ors. Vs. State of Uttar Pradesh & ors and other connected matters (supra); Tridip Kumar Dingal & ors. Vs. State of West Bengal & ors & other connected matters: (2009) 1 SCC 768 (Para 41) and State of Rajasthan Vs. Ucchab Lal Chhanwal:
(2014) 1 SCC 144 (supra).
44. In so far as the arguments relating to posts of Nurse Gr.II are concerned, where there is no examination and the selections are made on the basis of merit list, the claim of the EWS category candidates would not be made out as the posts were advertised prior to coming into force of the notification dated 19/02/2019 since the posts are determined for each year under the Rajasthan Medical and Health Subordinate Service Ruels. The claim of the EWS reservation is not found to be made out. The same argument would, however, not apply to MBC reservation as the State has provided for creation of additional 4% posts for EWS category.
45. In view of the aforesaid settled law, the classification and categorization of the candidates who fall under the MBC category and those who fall under (Downloaded on 12/07/2021 at 09:31:06 PM) (20 of 20) [CW-7043/2021] the EWS category by the State Government while applying reservation in the pending recruitments being conducted by the recruiting agencies independently through their letter dated 23/06/2019 cannot be said to be discriminatory or arbitrary or violative of Article 14 of the Constitution of India and the same is accordingly upheld.
46. The claim of the EWS category candidates for reservation is also found to be without basis in view of the posts having been advertised before coming into force of the notification dated 19/02/2019.
47. Consequently, the writ petitions being devoid of merit are hereby dismissed. The interim order, if any, passed by this Court stands vacated. All pending applications also stand disposed of. No costs.
48. Copy of this order be placed in each file."
In that view of the matter, this writ petition stands dismissed in view of the judgment passed by the Co-ordinate Bench of this court in the matter of Surendra Singh Rathore (supra).
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