Rajasthan High Court - Jaipur
Chandra Prakash Sharma vs State (Home Department)Ors on 4 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 4628 / 2015
Chandra Prakash Sharma
----Petitioner
Versus
State (Home Department) & Others
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. G.L. Sharma For Respondent(s) : Dr. A.S. Khangarot, Addl. Govt. Counsel _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA / Order 04/04/2017 In the present petition, a prayer has been made that the posts of Constable (General Duty) in General Category be not filled up by the candidates of the reserved category.
Prayer made by the petitioner cannot be entertained.
The Supreme Court in the case of Jitendra Kumar Singh and another Vs. State of Uttar Pradesh and Others, reported as (2010) 3 S.C.C. 119 has held as under :-
"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 at 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.
50. It has been recognized by this Court in the case of Indra Sawhney that larger concept of reservation would include incidental and ancillary provisions with a view to make the main provision of reservation effective. In Indra Sawhney, it has been observed as under:
(2 of 3) [CW-4628/2015] "743. The question then arises whether Clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question, it is well to examine the meaning and content of the expression "reservation". Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are "any provision for the reservation of appointments or posts". The question is whether the said words contemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration--the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour."
(emphasis in original) In our opinion, these observations are a complete answer to the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on behalf of the petitioners.
51. We are further of the considered opinion that the reliance placed by Mr. Rao and Dr. Dhawan on the case of K.L. Narsimhan(supra) is misplaced. Learned Sr. Counsel had relied on the following observations:
5. ...Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.
The aforesaid lines cannot be read divorced from the entire paragraph which is as under:
5. It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates;
otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate."
These observations make it clear that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate.
52. In the present case, the concessions availed of by the reserved category candidates in age relaxation and fee concession had no (3 of 3) [CW-4628/2015] relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgment in fact permits reserved category candidates to be included in the General Category Candidates on the basis of merit.
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 a settled legal position that the candidates belonging to reserved category, if they secure more marks than the last candidate in the General Category, have to migrate to the list of general category and they will not consume the vacancy meant for the reserved category.
In view of the law laid down in the case of Jitendra Kumar Singh (supra), no interference is warranted and the present petition, being devoid of merit is, hereby, dismissed.
(KANWALJIT SINGH AHLUWALIA)J. ashok