Rajasthan High Court - Jaipur
Dr Abhishek Goyal &Ors vs State Of Raj And Anr on 18 January, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.9015/2009 (Dr.Abhishek Goyal & Ors. Versus State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.11701/2009 (Dr.Lokesh Gautam Versus State of Rajasthan & Ors.) Date of Order :: 18th January, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Dr.Abhishek Goyal ] Dr.Lokesh Gautam ]petitioners in person. Dr.P.C.Singhal, AD (RP), Department of Animal Husbandry, Jaipur, respondent present in person. By the Court:
REPORTABLE :
The Rajasthan Public Service Commission (for short the RPSC) issued an advertisement for the post of Veterinary Officer. The petitioners applied for the selection and could find place in the reserve list at serial Nos.6 and 8.
The grievances of the petitioners are two fold. The first grievance is that against the candidates, who failed to join service after selection, the respondents should have exhausted reserve list, however, they failed to do so, inasmuch as, initially four candidates failed to join the post, which were then filled by the candidates from reserve list. Four other candidates further failed to join the post, however, against those vacancies, reserve list was not utilized on an erroneous ground that life of panel prepared by the RPSC lapsed in between.
The second grievance of the petitioners is in regard to non-utilization of unfilled reserve seats of Scheduled Caste (for short SC) and Scheduled Tribes (for short ST) candidates despite of fact that those posts were of the year 1998-99 and accordingly, if eligible candidates from that category were not available then to be filled-up by normal procedure. A reference of the advertisement dated 18.11.2006 (Annex.9) has been given wherein in first part of note, 69 posts posts for SC and ST were shown to be backlog of year 1998-99. Out of those backlog vacancy of year 1998-99, only 55 posts could be filled leaving 14 posts. In fact, those posts should have been lapsed from reserved then and there in view of the prevalent provisions till 10.10.2002, as reserve post cannot carry forward beyond a period of three years. In any case, even if that was carry forward for the next recruitment of year 2008, then in event of non-availability of candidate from SC and ST to the size of the backlog vacancies, it should have been filled-up by normal procedure, specially those vacancies which were of period prior to 10.10.2002. To strengthen the arguments, a reference of Circular dated 22.06.2004 is made. It is provided that any vacancy coming after Notification dated 10.10.2002, the post reserved for SC and ST is not to be filled by normal procedure on non-availability of reserve caste candidate. Prior to the Notification dated 10.10.2002, the Rules were to the effect that reserved left out vacant post to be filled by normal procedure with an arrangement to carry forward those post upto next three recruitment years. The aforesaid rule was applicable till 10.10.2002, thus vide Circular dated 22.06.2004, it was clarified that earlier posts should be filled as per rule then existing. The respondents however failed to apply aforesaid Circular, thus petitioners were deprived to get appointment despite their merit. The writ petition was filed before expiry of six months after issuance of panel.
The Office Incharge, on the other hand submits that after issuance of panel, four posts remained vacant on account of non-joining of candidates, accordingly requisition was sent on 16.07.2009 for sending names of three general caste candidates and one OBC candidate. Copy of requisition so sent to the RPSC has been enclosed at Annex.R-2/2. It is stated that those posts were filled from the reserve list. It is admitted that against four more posts also, candidates did not join but they were granted six months' extension for joining and extended period of their joining came after expiry of the life of panel, thus requisition for four more names from the reserve list was not sent to the RPSC. If the four such posts are ordered to be filled-up from reserve list then it is no doubt that petitioners' names come therein as they stand at serial Nos. 6 and 8 and four posts from the reserve list have already been filled.
So far as backlog vacancies of SC and ST are concerned, it is submitted that after the amendment in the Constitution as well as in the Rules vide the Notification dated 10.10.2002, it cannot be filled from general category. In the advertisement of the year 2006, in all 69 posts were shown to backlog of year 1998-99, which were prior to amendment in the rules vide Notification dated 10.10.2002. Out of 69 posts, 14 remained unfilled on account of non-availability of reserve caste candidates, thus it was carry forward for the recruitment year 2008. Therein, in all 20 posts, out of 49 reserve posts have been filled, thereby 29 posts remained unfilled. The aforesaid posts could not be filled from general category in view of the change in the Rules vide Notification dated 10.10.2002. Accordingly, case is not made out for grant of relief, as prayed in the writ petitions.
I have considered the submissions made by both the parties present in person and perused the record of the case.
Petitioners have raised two issues. One is regarding non-utilization of reserve list against those posts, which remain vacant on account of non-joining of candidates.
The only argument raised by the OIC is that initially four posts remained vacant on account of non-joining, which were filled-up from the reserve list. So far as other four posts are concerned, it could not be filled on account of expiry of panel, which was due to six months extension for joining to the candidates. After extension of period, they failed to join and life of panel expired in between. Thus, reserve list could not be used further.
I find that law on the aforesaid issue is settled holding that reserve list can be utilized for the post remained vacant on account of non-joining of candidates. In the present matter, when four candidates initially failed to join, the posts were filled from reserve list. The respondents, however, granted extension to join the post to few other candidates, who failed to join yet those posts were not filled from reserve list.
It seems to be nothing but failure of respondents to adhere to the schedule for joining knowing it well about the life of the panel. In fact, there was no reason to grant extension to any candidate for joining. Due to default of the respondents, if the life of panel expired, it should not be detriment to the petitioners' right. This is moreso when till the life of the panel, joining was not given by the selected candidates.
The extension for joining should have been given by the respondents keeping in mind life of the panel. In the aforesaid background, the act of the respondents in extending period of joining and thereupon non-joining of four candidates should not have been taken detriment to the rights of the petitioners.
The second issue is regarding treatment to the unfilled reserved seats.
Perusal of the advertisement dated 18.11.2006 reveals that 69 posts were backlog vacancies of the year 1998-99. The note appended to Annexure-9 is quoted hereunder for ready reference:-
??????? ?.??. /?.?.??. ?? ??? ?????? ?? ??????? ???? ??? ???? 1998-99 ?? ?????? ?? ??? 69 ?? ??? -19 ?? (??????? ?? 14 ??? 5 ?? ?????) ???????? ?? ?.??. ?? ??? ??? 50 ?? (??????? ?? 35 ??? 15 ?? ?????) ???????? ?? ?.?.??. ?? ??? ??????? ??. ?? ???? ?? ???????? ?? ?.??. /?.?.??. ?? ????? ??? ??????? ???????? ?????? ???? ???? ?? ?? ?????? ???? ?? ??????? ????? ?? ??????? ?????? 22.6.2004 ?? ?????? ??? ??????? ????????? (???. ?? ?.??./?.?.??. ?? ????? ????????????) ?? ??? ?? ?????.
Perusal of the note quoted aforesaid shows the position narrated above. The question now comes as to how treatment to the backlog vacancies of the year 1998-99 should have been given by the respondents. For the aforesaid purpose, Rules then existing are relevant, thus quoted hereunder for ready reference:-
7(4). Appointments shall be made strictly in accordance with the roster prescribed separately for direct recruitment and promotion. In the event of non availability of the eligible and suitable candidates amongst Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure, and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain unfilled shall be carried forward to the subsequent three recruitment years in total, and thereafter such reservation would lapse:
Provided that there shall be no carry forward of the vacancies in posts or class/category/group of posts in many cadre or service to which promotions are made on the basis of @ Merit alone, under these Rules.
Perusal of the Rules quoted above reveals that unfilled reserved seats to be filled by normal procedure and equivalent number of such posts to be carry forward for maximum period of three recruitment years. If the Rule aforesaid is applied to the backlog vacancies of the year 1998-99, it ceases to be reserved seats after three recruitment years, which are the recruitment years of 1999-2000, 2000-2001 and 2001-2002. If reserved posts are not filled within these three recruitment years then should have been reckoned to of general category in view of the Rules quoted above. It is due to failure and default of the respondents that while issuing advertisement in the year 2006, 69 posts were treated as backlog reserved vacancies. It seems to be for the reason of amendment in the Rules in between vide notification dated 10.10.2002. The notification aforesaid is quoted hereunder for ready reference :-
GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL (A-2) No.F.7(4)DOP/ Jaipur, A-II/2002 dt : 10-10-2002 NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 readwith clause (b) of Article 318 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, 2002.
(2) they shall come into force with immediate effect.
(2) Amendment : The existing rule as mentioned in Column Number 3 against each of the Service Rules as mentioned in Column Number 2 of the Schedule appended herewith, shall be substituted by the following, namely:
Reservation of Vacancies for the Schedule Castes and the Schedule Tribes :-
(1)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 or by promotion.
(2)The vacancies so reserved for promotion shall be filled in by seniority-cum-merit and merit.
(3)In filling the vacancies so reserved the eligible candidate who are members of the Scheduled Castes and the Scheduled Tribes, shall be consider for appointment in the order in which their names appear in the list prepared for direct recruitment by the Commission/Appointing Authority, as the case may be and the Departmental Promotion Committee/Appointing Authority, as the case may be, in the case of promoties, irrespective of their relative rank as compared with other candidates.
(4)Appointment shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst the Scheduled Castes and the Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be carried forward until the suitable Scheduled Castes and the Scheduled Tribes candidate(s), as the case may be, are available. In any circumstances no vacancy reserved for Scheduled Castes and the Scheduled Tribes candidates shall be filled by promotion as well as by direct recruitment from General category candidates. However, in exceptional cases where in the public interest the Appointing Authority feels that it is necessary to fill up the vacant reserved post(s) by promotion from the General category candidates on urgent temporary basis, the Appointing Authority may make a reference to the Department of Personnel and after obtaining prior approval of the Department of Personnel, they may fill up such post(s) by promoting the General category candidate(s) on urgent temporary basis clearly stating in the promotion order that the General category candidate(s) who are being promoted on urgent temporary basis against the vacant post reserved for Scheduled Castes and the Scheduled Tribes candidates, as the case may be, shall have to vacate the post as and when the candidate(s) of that category become available.
Provided that there shall be no carry forward of the vacancies in posts or class/category group of posts in any cadre or service to which promotions are made on the basis of Merit alone under these Rules SCHEDULE S.No. Name of the Service Rules Number of Rule 1 2 3 1 The Rajasthan Public Service Commission (Gazettd Staff) Service Rules and Regulations, 1991.
8 2The Rajasthan Public Service Commission (Ministerial and Subordinate Service Rules and Regulations, 1999.
7By order and in the name of the Governor, (S.N.Sharma) Deputy Secretary to the Government Bare perusal of the Notification shows that reserved posts should be carried forward indefinitely and not to be filled by normal procedure. The amendment vide notification dated 10.10.2002 is not retrospective as clarified by the State Government by issuing circular dated 22.6.2004 at Annexure-R/1/1, which is quoted hereunder for ready reference:-
?? ????? ?? ???????? ???????? ?????? 10.10.2002 ?? ?????? ????? ???? ?????? ??? ?????? ?? ?? ???????? ???? ??? ?? ?? ???? ?? ????? ??? ???./????/???.?????? ?? ????? ??? ??????? ???????? ?????? ???? ???? ?? ??? ??? ???? ??? ?? ?????? ??????? ????????? ?? ?? ?? ???????? ???? ????? ?? ?? ???????? ????/???.?????? ?? ??????? ???????? ?????? ???? ?? ???? ??. ?????? ?? ???????????? ??? ???? ??????? ???? ?? ??????????? ?? ??? ??????? ???? ?? ?????? ?? ??????? ?? ??? ?? ???? ????? ?????? ??????? ??????? ?? ??????????? ?? ???? ??? ?????.
?? ????? ??? ????? ???????/???????? ????????????? ?????? ????? ????? ?? ????? ??? ???? ??? ?? ?? ???? ???????? ?? ?? ??????? ???? ???? ?????? ?? ???????? ?? ???? ???? ?? ???? ?? ???? ?????? 1.4.2003 ??. ?? ?????????? ??? ?? ?????? ???? ???? ?? ?? ???? ???????? ?????? 10.10.2002 ?? ?? ??????? ???? ?????. ???? ?????? ?? ???????? ?? ??????? ???? ?? ?????? 10.10.2002 ?? ????? ?????? ???? ???? ????????? ?????? ???????? ?????? ?? ?????? ??? ?????? 10.10.2002 ??? ???? ?????? ?????? ???? ???? ????????? ??????? ?????????? ??? ?????.
??: ????? ???????? ????????????? ?? ????????? ???? ???? ?? ?? ?? ????? ??? ???? ????-????????? ?? ?????? ????????? ???.
Bare perusal of the circular quoted above reveals that amendment in the Rules is to be given effect from 10.10.2002 and thereby vacancy prior to 10.10.2002 has to be governed by the Rules then existing. In view of the aforesaid, 69 vacancies prior to 10.10.2002 should have been given treatment as per the Rules then existing. The respondents committed an illegality to keep 69 posts for reserved caste candidates showing it to be backlog posts whereas it should have been lapsed after three recruitment years which in the instant case comes to an end on 31.3.2002 i.e., prior to the amendment in the Rules and the advertisement of the year 2006.
In view of the discussion made above and if the facts of this case are looked into, then 69 posts should not have been reserved for the recruitment initiated vide advertisement dated 18.11.2006. In any case, the posts having been filled by giving appointment to the reserved caste candidates, it need not to be disturbed, however appointment to the reserved caste candidates out of 69 reserved vacancies is only to the extent of 55 posts as 14 candidates of the reserved caste were not available. The respondents were accordingly expected not to further carry forward 14 posts but to fill it from the general category. The respondents however shown 49 backlog posts for the year 2006-07 while issuing fresh advertisement on 24.05.2008. It includes 14 posts remained unfilled out of 69 posts so advertisement on 18.11.2006. In the background aforesaid, carry forward of backlog vacancies of the year 1998-99 becomes illegal rather it goes not only contrary to the Rules then existing but circular dated 22.6.2004. Now the position is that even after recruitment pursuant to the advertisement dated 24.5.2008, 141 (61 SC and 80 ST) posts remain vacant as is coming out from para 4 of the reply submitted by the respondents. It is on account of non-availability of the suitable reserve caste candidates. The respondent RPSC sent the list of 309 candidates for appointment as against 450 posts so advertised on 24.5.2008. They reserved 161 posts for SC/ST candidates. Out of the 161 posts so reserved for SC/ST, 49 posts are backlog vacancies as is coming out from the note appended to Annexure-1 dated 24.5.2008, which is quoted hereunder for ready reference:-
1. ??????? ???????? ????/???????? ?????? ?? ??? ??????? ??? ??????? ???? ??? ???? ???? 2006-07?? ?????? ?? ??? 49 ?? ??? - 10 ?? ???????? ?? ???????? ???? ?? ??? ??? 39 ?? ???????? ?? ???????? ?????? ?? ??? ??????? ??.
As per the Note quoted above 49 posts are backlog for year 2006-07, but out of this 14 posts are backlog vacancies of the year 1998-99 as pursuant to the earlier advertisement dated 18.11.2006 showing 69 backlog vacancies of the year 1998-99, 14 reserve posts remained unfilled. Accordingly reservation of 14 posts becomes illegal for the recruitment pursuant to the advertisement dated 26.5.2008. The respondents could not fill 141 posts pursuant to advertisement dated 26.05.2008 on account of non-availability of reserved caste candidates to that extent, thereby they could fill only 20 posts from reserve caste candidates. The aforesaid action of the respondents is illegal. In this regard, reference of the judgment of the Hon'ble Apex Court in the case of M. Nagraj & Ors. Vs. Union of India & Ors. reported in (2006) 8 SCC 212 is relevant, accordingly para No.100 of the aforesaid judgment is quoted hereunder for ready reference:
100. As stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling-limit of 50% on current vacancies continues to remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation. What is stated hereinabove is borne out by Service Rules in some of the States where the carry- over rule does not extend beyond three years.
Perusal of the judgment of the Constitutional Bench of the Hon'ble Apex Court reveals that the respondents should not carry forward reserved posts for indefinite period. It seems that the judgment aforesaid has not been given cognizance and thereby amended Rule vide notification dated 10.10.2002 exists as it is. On account of carry forward of reserved vacancies for indefinite period, the Government is not in a position to fill reserve posts on account of non-availability of candidates which may even affecting administrative working for want of required hands to the extent of the posts created.
In the present case, reservation of 14 reserve posts of the year 1998-99 vide advertisement dated 26.5.2008 cannot be held to be legal thereby to that extent reservation in favour of SC/ST candidates is found to be illegal as backlog vacancies of the year 1998-99 should have been lapsed by giving treatment as per the Rules then existing and as clarified by the respondents themselves vide their circular dated 22.6.2004.
In view of the discussion made above, these writ petitions are disposed of with direction to the respondents that by treating 14 posts to be for general category pursuant to the advertisement dated 26.5.2008, it should be filled up from and amongst meritorious candidates by normal procedure. This is more so when as per the reply given by the respondents themselves, 141 posts remained unfilled out of 450 posts so advertised. Thus, there remains no justification not to fill up 14 posts from and amongst the meritorious candidates. The direction aforesaid may be carried out within a period of two months from the date of receipt of certified copy of this order.
Before parting with the judgment, it would be necessary to observe that the State Government should have followed the direction of the Hon'ble Apex Court given in the case of M.Nagraj & Ors. (supra), a portion of which has been quoted in the preceding para. They are accordingly directed to suitably amend the Rules so notified on 10.10.2002 so as to make it in conformity with the direction given by the Hon'ble Apex Court in the aforesaid case. The respondents are expected to take up the issue with the Department of Personnel for carrying out direction given aforesaid within a period of six months from the date of receipt of certified copy of this order. To find out the compliance of the direction aforesaid, the registry is directed to list this case after six months before this Court.
(M.N. BHANDARI), J.
S/No.192-193 preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.