Rajasthan High Court - Jodhpur
Bhupendra Nagda & Ors vs State & Ors on 2 May, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13178 / 2015
1. Bhupendra Nagda S/o Shri Tulja Shanker Nagda, aged about 34
years, R/o V/P Sisarma, Tehsil Girwa, District Udaipur (Raj.)
2. Nahar Singh Jhala S/o Shri Phool Singh Jhala, aged about 40
years, R/o 370 Mandir Phala, Gato, Tehsil Sarda, District Udaipur
(Raj.)
3. Rajendra Prasad Prajapat S/o Shri Kanhiya Lal aged about 39
years, R/o Village Jhalode, Tehsil Sarada, District Udaipur (Raj.)
4. Devi Lal Patel S/o Shri Gokula Ji Patel, aged about 41 years,
R/lo Village Piladar, Tehsil Sarada, District Udaipur (Raj.)
5.Banshi Das Veragi S/o Shri Bhma Dodiyar narayan Das Veragi,
aged about 36 years, C/o Village Magras, Post Damana, Tehsil
Jhalode, District Udaipur (Raj.)
6. Jagat Singh Jhala S/o Shri Pratap Singh Jhala aged about 29
years, R/o Village Badraga, Post Gogla, Tehsil Jhalode District
Udaipur, (Raj.)
7. Ritesh Sharma S/o Shri L Prakash Chand Sharma, aged about
35 years, R/o 2/124, Housing Board, Shivani Nagar, Dungarpur
(Raj.)
8. Ramesh Chandra Nayak S/o Shri Kamal Chandji, aged about 40
years, R/o Post Aadwali, Tehsil Kherwad, District udaipur (Raj.)
9. Mennaxi Rawal D/o Shri Mani Lalji Rawal, aged about 30 years,
R/o Mehta Mohalla, Tehsil Rishabdev, District Udaipur (Raj.)
10. Rajni Bala jain D?o Shri Dr. Babu Lalji Jain, aged about 37
years, R/o Padmawati Printing Press, Bapu Bazar Rishabhdev,
District Udaipur (Raj.)
11. Heera Lal Patel S/o Shri Gautam Chand Ji Patel, aged about 43
years, R/o Village Regaphpala Devalakhas, Tehsil Dungarpur,
District Dungarpur (Raj.)
12. Lakhan Singh Rathod S/o Shri Udai Singh, aged about 38
years, R/o V/PO Damadi Tehsil & District Dungarpur (Raj.)
13. Dinesh Chandra Bhatt S/o Mansukh Ram Ji Bhatt, aged about
36 years, R/o Mukam/Post Bhiluda, tehsil Sagwada, District
Dungerpur (Raj.)
14. Heena Pandya D/o W/o Dilip Pandya, aged about 37 years R/o
Mukam/Post Punjpur, Tehsil Aspur, District Dungerpur (Raj.)
15. Punit Joshi S/o Mansukh Ram Ji Bhatt, Aged about 23 years,
R/o Mukam/Post Bhiluda Tehsil Sagwada, District Dungerpur (Raj.)
16. Bhanu Pratap Solanki S/o Bhopal Singh Solanki Aged about 34
years, R/o Mukam/Post Bhiluda, Tehsil Sagwada, District
Dungerpur (Raj.)
(2 of 10)
[ CW-13178/2015]
17. Yuvraj Singh Ranawat S/o Bhopal Singh Ranawat Aged about
37 years, Village Post naya Boriya tehsil Dhariyawad, District
Pratapgarh (Raj. )
18. Bhagwat Singh Ranawat S/o Chandrapal Singh Ranawat, Aged
aobut 31 years, Village Post naya Boriya, tehsil Dhariyawad,
District Pratapgarh, (Raj.)
19. Virendra Singh Daroga S/o Balkrishan Aged about 38 years,
R/o Mahi Colony, Garhi District Banswara (Raj.)
20. Arvind Giri Sadhu S/o Ganesh Giri Age about 33 years, R/o
Mukam Nagansale, Post Bhimpur Tehsil Ganoda, District Banswara
(Raj.)
21. Premila Patidar D/o Ishwar lal Patidar, Age about 38 years, R/o
Mukam Post Garhi District Banswara (Raj.:)
----Petitioners
Versus
1. State of Rajasthan through the Secretary Education
Department, Government of Rajasthan, Secretariat, Jaipur.
2. Director, Secondary Education, Education Department Bikaner,
Rajasthan.
3. Director, Elementary Education, Education Department, Bikaner,
Rajasthan.
4.Rajasthan Public Service Commission, Ajmer through its
Secretary.
5. Secretary, Rajasthan Public Service Commission, Ajmer.
_____________________________________________________
For Petitioner(s) : Mr. Nikhil Dungawat
For Respondent(s) : Mr.Tarun Joshi
Mr. BL Bhati
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 03/05/2018 The petitioners have preferred this writ petition claiming the (3 of 10) [ CW-13178/2015] following reliefs:-
"It is therefore, humbly and respectfully prayed that this writ petition of the petitioners may kindly be allowed:
A. By an appropriate writ order or direction the advertisement dated 18.9.2013 (Annex.1) and amendment advertisement
02.9.2014 (Annex./2) may kindly be quashed and set aside. B. By an appropriate writ, order or direction, the final merit list and provisional merit (PTI grade II/III) list to the extent of TSP ST candidate selected in the TSP General category m;ay kindly be quashed and set aside.
C. By an appropriate writ, order or direction, the respondents may kindly be directed to reissue/redraw merit list for the post PTI grade II & III after removing the reserved category candidate TSP SC/ST from General TSP category and fresh merit list alongwith cutoff list may kindly be issued.
D. By an appropriate writ, order or direction, the respondents may kindly be directed to reshuffle and redraw the merit list for TSP candidates after identifying the candidates belonging to SC/ST category who has taken benefits of age relaxation/other relaxation and place them in their respective SC/ST category. E. By an appropriate writ, order or direction, the respondents may kindly be directed to redetermine the cut off marks (PTI grade II/III) for TSP area after considering/identifying and after placing reserved category SC/ST TSP area candidates in their respective category.
F. By appropriate writ order and direction the respondent may kindly be directed to abide by the qualification as laid down in the schedule for the post of PTI grade II & III and the candidates with BPE degree (three year course) should not be allowed to join as they are not possessing qualification as per schedule of 1971. G. By appropriate writ order and direction the respondents may kindly be directed to reconsider the candidature and grant appointment to the petitioners on the post of PTI Grade II/III with all consequential benefits.
H. By appropriate writ order and direction the respondent may kindly be directed to issue reserve/waiting list (for TSP area) as per rule 20 of the Rules of 1971 and respondents may kindly be directed to determine the vacant post and fill the vacant post (TSP) from the candidates named in such waiting/reserve list. I. By appropriate writ order and direction the respondent may kindly be directed to issue the respondents commission may kindly be directed to issue reserve list and the candidates of the persons, failing in the reserve list may also be considered. J. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners.
(4 of 10) [ CW-13178/2015] K. Writ petition filed by the petitioners may kindly be allowed with costs. "
2. The brief facts of this case as noticed by this Court are that the RPSC issued an advertisement whereby applications were invited for appointment on the post of Teacher Grade-II/III under the Rajasthan Education Subordinate Service Rules, 1971. The respondents on 18.9.2013 issued the advertisement for the post of PTI Grade-II/III whereby vacancies for the TSP area were determined. The notification for the reservation of TSP area was accordingly applied.
3. The petitioners were possessing the qualification as per the advertisement for the post of PTI Grade-II/III and, therefore, they have participated in the recruitment process. Thereafter the provisional select list alongwith the cut off marks came to be issued. However, the final merit list was prepared on 06.10.2015.
4. As per the counsel for the petitioners Dr, Nikhil Dungawat the sole contention to be adjudicated is whether the candidate belonging to the TSP category would migrate as per their own merit to the non TSP category. The counsel for the petitioner has further pointed out that the merit of the TSP General candidate for PTI Grade-II was 320.25 and for PTI Grade III it is 283.52 whereas the cut-off-marks for TSP General Male Grade-II is 273.55 and for Grade-III the cut off mark is 220.95.
5. Learned counsel for the petitioner has argued that if these persons are recruited from TSP area to the non TSP Area in their respective category then it would meet the ends of justice as they would be able to compete in the open competition of non TSP area (5 of 10) [ CW-13178/2015] and also would be having the minimum security of competing in the special class of TSP area.
6. Learned counsel for the petitioners has relied upon the judgment rendered by the Division Bench of this Hon'ble Court in Ashok Kumar Meena and Ors. Vs. State of Rajasthan decided in DB Civil Special Appeal (W) No. 1106/2015 decided on 08.1.2016, relevant portion of which reads as under:
"At the threshold, we would like to mention that so far as Scheduled Castes are concerned, there is no special provision in the tribal sub-plant area. It is only a 5% reservation for the local residents in their own category. So far as the persons belonging to tribes are concerned, they are first required to be considered against the vacancies reserved for Scheduled Tribe and then for the vacancies in the tribal sub-plan area. In the case in hand, it is not in dispute that the persons who have been permitted to migrate from tribal sub-plan area to non tribal sub plan area are having more merit marks than the present applicants. If those persons would not been permitted to migrate to non tribal sub plant area, then they will have suffer unequal treatment by not getting their candidature considered in their own category i.e. Scheduled Tribe. It would be appropriate to notice that the tribes of tribal sub plan area are only under a sub category on the basis of territory for the tribes. If a person belonging to tribe community is having higher marks then in a State Level Competition then his candidature is required to be considered in the category of Scheduled Tribe on the basis of his own merit irrespective of the fact that he is coming from that tribal sub plan area. In view of it, we do not find any wrong with the judgment passed by the learned Single Bench. Having considered this factual and legal aspect of the matter, we do not find any just reason to grant the leave as prayed for. The application is dismissed. "
7. Learned Counsel for the petitioners has further relied upon the judgment rendered by this Hon'ble Court in Vijay Kant Meena & Ors. Vs. State of Rajasthan & Ors. passed in SBCWP No.3249/2015 decided on 29.9.2015 which reads as follows:
(6 of 10) [ CW-13178/2015] "The petitioners herein are aspiring candidates belonging to the Scheduled Castes/Scheduled Tribes category hailing from TSP areas and crave appointment as Nurse Grade-II pursuant to an advertisement dated 26.2.2013 issued by the respondent authorities inviting applications from the aspirants against 15773 posts of Nurse Grade-II, 200 posts of Public Health Nurse and 12278 posts of Women Health Workers.
The petitioners applied against the first category i.e. Nurse Grade-II while filling the application forms. Since the petitioners hail from a TSP area, they filled their category as TSP SC/ST as the case may be.
Under a notification dated 12.9.2007 issued by the Governor of Rajasthan while exercising powers under Article 244(1) of the Constitution of India, 50% of the seats in the TSP area were directed to be reserved for SC/ST category permanent residents of these areas.-
The respondents, while advertising the vacancies did not specify the proportionate number of seats for the TSP and non-TSP areas in consonance with the above notification. However, it was mentioned in para No.4(12) of the advertisement that TSP area reservation would be available as per the government notification dated 12.9.2007. Thus, no option was available for the TSP area SC/ST candidates to mark an option as to whether they were desirous of competing against the TSP area reserved vacancies or sought appointment against the non-TSP reserved quota of seats. While issuing the provisional merit list, the respondents have published separate cut off marks for the different various categories. The cut off for the non-TSP area SC and ST categories has been fixed at 58.7756, much lower than the cut off for the SC and ST categories in the TSP areas, which has been fixed at 62.3057. The petitioners have raised a grievance in these writ petitions that the out come of the inappropriate application of the reservation criterion has resulted into a great anomaly. As per the petitioners, the very purpose of introducing the TSP area reservation through the notification dated 12.9.2007 was that Scheduled Caste and Scheduled Tribe Category persons hailing from the tribal areas should be given an added advantage and should face lesser competition for securing government jobs so as to ensure their upliftment. Learned counsel contends that owing to the incorrect application of the reservation criterion, the whole purpose of the TSP area reservation has been frustrated, inasmuch as, the cut off for the tribals hailing from the (7 of 10) [ CW-13178/2015] TSP area has been fixed at a much higher level than the cut off for these categories in the non-TSP area, thereby creating an absolutely anomalous unfair situation contrary to the very purpose of the notification providing for TSP area reservation. As per the petitioners, the appropriate mode would have been to first consider the candidature of the Scheduled Caste and Scheduled Tribe aspirants of the entire State by preparing a common merit list. Thereby, more meritorious persons in these categories residing in TSP areas would be able to stake their claim against the seats reserved statewide for the Scheduled Caste/Scheduled Tribe candidates. Thereafter, excluding the names of those selected in the statewide Scheduled Caste/Scheduled Tribe category on the basis of their merit, a separate merit list should have been prepared from the remaining TSP area candidates. It is asserted by the petitioners that only by following this procedure, appropriate and meaningful benefit of the TSP area reservation can be extended to the underprivileged tribal area candidates. This argument is built up on the foundation that while inviting the application forms, the aspiring candidates were not asked to exercise any option as to whether they were desirous of being considered only against seats reserved for the TSP area or intended to apply in the statewide reserved quota of seats.
Shri KL Thakur, learned AAG frankly and fairly concedes that the apportionment of the seats and the declaration of separate merit list for the TSP area and Non-TSP area reserved quota seats has resulted into an unfair situation, inasmuch as, the cut off for the SC and ST categories in the TSP area has been fixed at much higher as compared to the cut off for the non-TSP area reserved category seats (SC/ST). He thus proposes that it would be appropriate for the State to conduct an exercise to remove the anomaly. He suggests that those TSP area candidates from the SC/ST category, who have secured more marks than the cut off declared for the non-TSP areas, should be migrated to the non-TSP area merit list thereby leaving the TSP area reserved seats vacant for being filled in by lesser meritorious candidates from those areas. He submits that by doing so, the anomaly would be removed and the proper and meaningful benefit of TSP area reservation will be extended to the tribal area candidates. Shri Thakur submits that presently, only a tentative merit list has been prepared and the exercise for preparing the final merit list is still pending.
In view of the submissions advanced by the learned counsel for the parties and the fair concession made by Shri Thakur learned (8 of 10) [ CW-13178/2015] A.A.G., the writ petitions are allowed. It is hereby directed that while preparing the final merit list, the more meritorious SC/ST candidates hailing from the TSP areas shall be migrated to the seats reserved for these categories in the non-TSP areas and thereby lesser meritorious candidates hailing from in the TSP areas would get a chance of securing appointment against the TSP reserved quota of seats. The above directions and modifications shall be applied while preparing the final merit list which shall be prepared within a period of four weeks from today.
No order as to costs.
A copy of this order be placed in each file."
8. Learned counsel for the petitioner has relied upon the judgment of this Hon'ble Court in Rajkumari Vs. State of Rajasthan & Ors. Passed in SBCWP No. 15961/2015, relevant portion of which reads as under:
4. The issue No. 5 is regarding benefit of reservation to the TSP. The additional affidavit submitted by the non petitioners shows that after arranging the list for open category followed by list for social reservation i.e. for SC,ST, OBC, SBC etc. the list would be prepared for the TSP and, accordingly, a candidate of TSP finding name in the list of open category or in ST category, would not be counted towards reservation for TSP. Accordingly, they would be extended benefit of reservation meant for them.
In the light of the additional affidavit, issue NO. 5 stands concluded with the observations made above. Now, there remain few issues which need to be determined. The first issue for consideration is issue No. 3 framed by this court on 11.12.2015."
9. Learned counsel for the respondents Mr. Tarun Joshi and Mr. BL Bhati have however opposed the submissions on the ground that TSP is a special area and therefore, there cannot be a migration from one reserved class to another reserved class i.e. TSP area category ito non TSP area.
(9 of 10) [ CW-13178/2015]
10. After hearing counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, , this Court finds that reservation for TSP Area is a special reservation and the underlying purpose of extending such reservation is that the person belonging to the tribal area gets a special preference for their upliftment. Meritorious candidates should have their own respective claim against the vacancies of non TSP area which would definitely come through their migration to the reservation quota given to the TSP area as otherwise the candidates of the category shall be left with limited option of participating under their own category in the TSP area only thereby the larger canvas of recruitment would stand frustrated for the TSP area candidates . The precedent law is amply clear that if a person belonging to the TSP category and is having higher marks in the state level competition for which the candidate is required to be considered under his respective category in the non TSP area on the basis of his own merit irrespective of the fact that he is coming from a TSP area.
11. In light of the aforesaid observation, the present writ petition is allowed and it is hereby directed that the selected candidates from amongst the meritorious candidates of TSP area, shall be migrated to the seats of the same category in the non TSP area, if possessing higher merit, and thereby lesser meritorious candidates belonging to the TSP area would get chance by securing appointment against the TSP reserved quota of the seats.
The above direction shall be applied for the seats on which the (10 of 10) [ CW-13178/2015] vacancies still exist. It is made clear that if any special benefit has been taken for the purpose of eligibility and competing on merit, then the above migration shall not be done. It is also made clear that the persons who have already joined shall not be disturbed and the above direction shall be applied only where the seats are still lying vacant. This Court also holds that this precedent law is governing the field, which cannot be retrospectively occupied by the Rajasthan Scheduled Areas Subordinate, Ministerial and Class IV Service (Recruitment & Other Service Conditions) Rules, 2014 only. The recruitment in question is outcome of advertisement dated 18.09.2013, which is before the aforesaid Rules coming into vogue. This observation is necessary, in light of the fact that Rule 31 of the Rules of 2014 has completely altered the situation and shall govern the field prospectively.
(DR. PUSHPENDRA SINGH BHATI)J. ns./156