Rajasthan High Court - Jodhpur
Kamlesh Kalasua vs State Of Rajasthan on 25 March, 2019
Equivalent citations: AIRONLINE 2019 RAJ 501, (2019) 2 WLC (RAJ) 607 (2019) 3 RAJ LW 2099, (2019) 3 RAJ LW 2099
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 13016/2018
1. Kamlesh Kalasua S/o Laxman Kalasua, Aged About 30
Years, Kanela, Post Virat, Tehsil Sagwara, District
Dungarpur
2. Pushpa Katara D/o Devaramji Katara, Aged About 28
Years, Village Bori Tehsil Anandpuri District Banswara
3. Kamlesh Kumar S/o Deva, Aged About 30 Years, Village
Patiya Galiya, Tehsil Anandpuri And District Banswara
4. Prakash Chandra Pargi S/o Mohanlal, Aged About 33
Years, Village Patiya Galiya, Tehsil Anandpuri And District
Banswara
5. Pushpa Patel D/o Kanheyalal Patel, Aged About 32 Years,
Village Chordi, Tehsil Anandpuri And District Banswara
6. Ramesh Chandra Katara S/o Roop Lal Katara, Aged About
26 Years, Aamba, Tehsil Anandpuri And District Banswara
7. Prabhu Lal Garasiya S/o Roopa, Aged About 27 Years,
Mundari, Tehsil Anandpuri And District Banswara
8. Nand Kishore Garasiya S/o Sohan Lal, Aged About 30
Years, Aamba, Tehsil Anandpuri And District Banswara
9. Maganlal Pargi S/o Surajmal Pargi, Aged About 35 Years,
Khatwa, Tehsil Anandpuri And District Banswara
10. Soniya Kumari Kharadi D/o Chhagan Lal Kharadi, Aged
About 27 Years, Pithapur, Tehsil Bichhiwara And District
Dungarpur
11. Kalpana Roat D/o Heera Lal, Aged About 29 Years, Limbri
Phala, Tehsil And District Dungarpur
12. Laxman Meena S/o Shankar Lal Meena, Aged About 32
Years, Village Palthoor, Tehsil Aspur And District
Dungarpur
13. Meshva Meena S/o Bhanwar Lal Meena, Aged About 26
Years, Gokalpura, Tehsil And District Dungarpur
14. Kamla Damor D/o Narayan Lal Damor, Aged About 27
Years, Tamboliya, Tehsil Simalwara And District
Dungarpur
15. Geeta Kumari Katara D/o Lal Bahadur Katara, Aged About
27 Years, Malpur Tehsil And District Dungarpur
16. Chandulal Bhagora S/o Soma Bhagora, Aged About 41
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Years, Malmatha, Tehsil Bichhiwara And District
Dungarpur
17. Kacharu Lal Sarpota S/o Mavji Sarpota, Aged About 43
Years, Chhani, Tehsil Sagwara And District Dungarpur
18. Tulshi Limbat D/o Ram Lal, Aged About 25 Years,
Galandarpal, Tehsil Bichhiwara And District Dungarpur
19. Dinesh Katara S/o Balkishan, Aged About 35 Years,
Galandarpal, Tehsil Bichhiwara And District Dungarpur
20. Divya Bhanat D/o Rajendra Bhanat, Aged About 22 Years,
Parbila Tehsil Kherwara District Udaipur
21. Sheela Rot D/o Nanuram Rot, Aged About 37 Years,
Village Ambada Tehsil Chikhli District Dungarpur
22. Laxmi Kumari Meena D/o Arun Meena, Aged About 27
Years, Village Kherpida Tehsil And District Banswara
23. Ramanlal Ahari S/o Kachara Ahari, Aged About 38 Years,
Village Bhojato Ka Oda Tehsil And District Dungarpur
24. Dinesh Amliya S/o Kantilal Amliya, Aged About 23 Years,
Village Rangeela Tehsil And District Dungarpur
25. Dharmesh Amliya S/o Kantilal Amliya, Aged About 23
Years, Village Rangeela Tehsil And District Dungarpur
26. Manjula D/o Radheshyam Amliya, Aged About 40 Years,
Village Bhuwasa Tehsil Sagwara District Dungarpur
27. Ghanshyam Parmar S/o Jiva Parmar, Aged About 39
Years, Gada Malji, Tehsil And District Dungarpur
28. Man Singh Vadkhiya S/o Jithara Vadkhiya, Aged About 38
Years, Biladi, Tehsil Sajjangarh And District Banswara
29. Anjana Kumari D/o Vala Ram, Aged About 34 Years,
Village Sangila Tehsil Gadhi District Banswara
30. Hemlata Kumari D/o Ravji Dindore, Aged About 32 Years,
Village Lalwara Tehsil Bagidora District Banswara
31. Harish Chandra Garasiya S/o Kanhaiyalal Garasiya, Aged
About 30 Years, Village Haliya Moda Tehsil Gadhi District
Banswara
32. Om Prakash Pargi S/o Kaluram, Aged About 34 Years,
Village Bori Tehsil Gadhi District Banswara
33. Manisha Kumar Bamniya D/o Gatu Bamniya, Aged About
26 Years, Village Valgapada Tehsil Gadhi District
Banswara
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34. Pushpa Katara D/o Man Singh Katara, Aged About 30
Years, Village Aahiya Pada Tehsil Gadhi District Banswara
35. Sushila Kumari D/o Ajit Kumar Garasiya, Aged About 26
Years, Barkota, Tehsil Anandpuri District Banswara
36. Dhirajmal Pargi S/o Nathu Pargi, Aged About 39 Years,
Village Bildi Tehsil Garhi District Banswara
37. Rajulal Damore S/o Kachru Damore, Aged About 38
Years, Village Itauwa Tehsil Garhi District Banswara
38. Ajit Kumar Pargi S/o Sohan Lal Pargi, Aged About 35
Years, Village Madkola Mogji Tehsil Anandpuri District
Banswara
39. Shanti Khat S/o Raman Lal Khat, Aged About 34 Years,
Village Madkola Mogji Tehsil Anandpuri District Banswara
----Petitioners
Versus
1. State Of Rajasthan, Department Of Secondary Education,
Government Of Rajasthan, Jaipur
2. Director, Elementary Education, Bikaner
3. Chief Executive Officer, Zila Parishad, Udaipur
4. Chief Executive Officer, Zila Parishad Banswara
5. Chief Executive Officer, Zila Parishad Dungarpur
----Respondents
Connected With
S.B. Civil Writ No. 9810/2018
1. Suresh Kumar Ninama S/o Soma Ninama, Aged About 28
Years, Sundrav Tehsil Anandpuri District Banswara
2. Minakashi Damor D/o Om Prakash, Aged About 31 Years,
Dhani Gatau, Tehsil And District Dungarpur
3. Pankaj Kumar Parmar S/o Thawar Chand Parmar, Aged
About 40 Years, Vikas Nagar, Tehsil And District
Dungarpur
4. Suresh Kumar Pargi S/o Nanak Ram Paragi, Aged About
26 Years, Sundarav, Tehsil Anandpuri And District
Banswara
5. Goverdhan Lal Damor S/o Amara Damor, Aged About 24
Years, Bhachadiya Jagtan, Tehsil Chikli And District
Dungarpur
6. Sushil Kumar Damor S/o Shambu Lal Damor, Aged About
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28 Years, Aahiya Pada, Tehsil Garhi And District Banswara
7. Dinesh Chand S/o Kali Ram Khan, Aged About 31 Years,
Bhattar, Tehsil Garhi And District Banswara
8. Vijay Pal Khant S/o Jagdish Chand Khant, Aged About 29
Years, Mavjipada, Tehsil Garhi And District Banswara
9. Saraswati Aahir D/o Laxman Lal, Aged About 29 Years,
Peethpur, Tehsil Bichhiwara And District Dungarpur
10. Nanu Ram Roat S/o Baldhar Roat, Aged About 32 Years,
Dolkunjala, Tehsil Simalwara And District Dungarpur
11. Dhanpal Katara S/o Amrat Lal Katara, Aged About 32
Years, Genji Fala, Tehsil And District Dungarpur
12. Deepika Kumari Parmar D/o Heera Lal Parmar, Aged
About 28 Years, Limbor Chhoti, Tehsil Sagwara And
District Dungarpur
13. Nayana Kharadi D/o Jeevan Prakash Kharadi, Aged About
26 Years, Ward No. 2, Nawa Dera Dungarpur Tehsil And
District Dungarpur
14. Asha Kumari Ahari D/o Leela Ram Ahari, Aged About 29
Years, Vagdari, Post Khempur And District Dungarpur
15. Kanti Lal Damor S/o Nanu Lal Damor, Aged About 28
Years, Aaiyapada, Tehsil Garhi And District Banswara
16. Bharat Lal Damor S/o Shyam Lal Damor, Aged About 29
Years, Aaiyapada, Tehsil Garhi And District Banswara
17. Sohan Lal Charpota S/o Shambhu Lal Charpota, Aged
About 31 Years, Aaiyapada, Tehsil Garhi And District
Banswara
18. Kalpesh Kumar Khant S/o Man Singh Khant, Aged About
30 Years, Bhattar, Tehsil Garhi And District Banswara
19. Manish Dendore S/o Hariram Dedore, Aged About 28
Years, Rajeev Nagar, Tehsil Simalwara And District
Dungarpur
20. Subhash Chandra Roat S/o Harish Chand Roat, Aged
About 30 Years, Dungarafala, Tehsil Jhonthari And District
Dungarpur
21. Prakash Chand Roat S/o Vimal Prakash Roat, Aged About
30 Years, Village Chhani Tehsil Sagwara District
Dungarpur
22. Mahendra Kumar Dindore S/o Kanti Lal Dindore, Aged
About 24 Years, Village Tamboliya Tehsil Galiyakot District
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Dungarpur
23. Prakash Chand Roat S/o Shankar Roat, Aged About 26
Years, Village Surata Tehsil Jhothari District Dungarpur
24. Dinesh Chand Masar S/o Rupsi Masar, Aged About 28
Years, Village Ghuwed Tehsil Simalwara District
Dungarpur
25. Lal Shankar Katara S/o Dhani Ram Katara, Aged About 30
Years, Village Gundighata Tehsil Jhothripal District
Dungarpur
26. Jagdish Chandra Damor S/o Huka Damor, Aged About 25
Years, Village Modara Bara Tehsil Galiyakot District
Dungarpur
27. Ratan Lal Damor S/o Shankar Lal Damor, Aged About 36
Years, Ward No. 11, Bedsa Tehsil Simalwara District
Dungarpur
28. Mukesh Chand Katija S/o Natwar Lal Katija, Aged About
28 Years, Village Majiya Tehsil Garhi District Banswara
29. Deepak Kumar Katija S/o Heera Lal Katija, Aged About 28
Years, Village Majiya Tehsil Garhi District Banswara
30. Naina Kumari Roat D/o Kanti Lal Roat, Aged About 26
Years, Village Kesharpura Tehsil Sagwara District
Dungarpur
31. Rajesh Kumar Damor S/o Dhanu Lal Damor, Aged About
27 Years, Village Ramanna Moula Tehsil Garhi District
Banswara
32. Mukesh Damor S/o Narayan Lal, Aged About 30 Years,
Village Khera Tehsil Garhi District Banswara
33. Aruna Kumari Parmar D/o Bhogi Lal Parmar, Aged About
22 Years, Village Kandola Tehsil Sagwara District
Dungarpur
34. Subhash Chand Dabi S/o Sega Dabi, Aged About 24
Years, Village Kanela Post Virat Tehsil Sagwara District
Dungarpur
35. Jaya Bamaniya D/o Devi Lal Bamaniya, Aged About 24
Years, Village Meditemba Tehsil Chikli District Dungarpur
36. Gyander Kumar Meena S/o Dhuleshwar Meena, Aged
About 24 Years, Village Sisot Upli Tehsil Chikli District
Dungarpur
37. Aruna Bodar D/o Prema Ram Badar, Aged About 22 Years,
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Village Kanela Post Virat Tehsil Sagwara District
Dungarpur
38. Subhash Chand Roat S/o Man Singh Roat, Aged About 30
Years, Surata Distt - Dungarpur
39. Dinesh Kumar Roat S/o Khemraj Roat, Aged About 27
Years, Village Chadoli Tehsil Simalwara District Dungarpur
40. Gajendra Kumar Dindore S/o Roop Lal Dindore, Aged
About 24 Years, Nawagada Chadoli Tehsil Sagwara District
Dungarpur
41. Rajendra Pargi S/o Lasa Pargi, Aged About 28 Years,
Village Lima Badiya Tehsil Galiyakot District Dungarpur
42. Nirmala Ahari D/o Dharmraj Ahari, Aged About 27 Years,
Village Ratanpura Tehsil Galiyakot District Dungarpur
43. Reeta Kalasua D/o Rampal Kalasua, Aged About 27 Years,
Village Biliya Tehsil Sagwara District Dungarpur
44. Ashok Kumar Roat S/o Chagan Lal Roat, Aged About 32
Years, Nayagaon Tehsil Jhothari District Dungarpur.
45. Kamlesh Kumar Daranga S/o Ram Lal Meena,, Aged
About 20 Years, Village Ghatrali Tehsil Kherwara District
Udaipur.
46. Nirmala Kumari Baranda D/o Jeeva Baranda, Aged About
24 Years, Village Utiya Post Renta Tehsil And District
Dungarpur.
47. Mahendra Kumar Baranda S/o Lal Shankar Baranda, Aged
About 31 Years, Village Utiya Post Renta Tehsil And
District Dungarpur.
48. Mahendra Kumar Nanoma S/o Ramchandra Namoma,
Aged About 30 Years, Village Toraniya Tehsil Sagwara
District Dungarpur.
49. Dilip Kumar Katara S/o Soneshwar Katara,, Aged About
35 Years, Village Teejwar Post Bildi Tehsil And District
Dungarpur.
50. Mukesh Kumar S/o Nathu Lal Roat, Aged About 32 Years,
Village Hiratha Tehsil And District Dungarpur.
51. Shanti Lal Roat S/o Manji Roat,, Aged About 35 Years,
Village Dadroada Tehsil Galiyakot District Dungarpur.
52. Kesarimal Pargi S/o Shankar Lal Pargi, Aged About 23
Years, Village Nayagaon Tehsil Chikli District Dungarpur.
53. Hriom Dandore S/o Chetan Lal Dandore,, Aged About 26
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Years, Village Shaslai Tehsil Chikli District Dungarpur.
54. Sukhdev Dandore S/o Devi Lal Dandore,, Aged About 28
Years, Village Shaslai Tehsil Chikli District Dungarpur.
55. Shankar Lal Pagi S/o Bhala Pagi, Aged About 25 Years,
Village Badgami Tehsil Chikli District Dungarpur.
56. Yashoda Ram D/o Shankar Lal Rana, Aged About 32
Years, Village Gada Mertiya Tehsil And District Dungarpur.
57. Raman Lal Dindore S/o Dalji Dandore, Aged About 48
Years, Village Tamboliya Tehsil Galiyakot District
Dungarpur.
58. Gajendra Kumar Damor S/o Ramchandra Damor, Aged
About 22 Years, Village Shishot Tehsil And District
Dungarpur.
59. Mukesh Kumar Damor S/o Shankar Damor, Aged About
25 Years, Village Barliya Fala Tehsil Galiyakot District
Dungarpur.
60. Lavina Roat D/o Tulsi Ram Roat, Aged About 25 Years,
Village Nayagaon Tehsil Jhothripal District Dungarpur.
61. Ramesh Chand Banamiya S/o Dhaneshwar Bamaniya,
Aged About 25 Years, Village Bawadi Tehsil And District
Dungarpur.
62. Ratan Lal Damor S/o Man Singh Damor, Aged About 27
Years, Village Dhediya Fala Tehsil Simalwara District
Dungarpur.
63. Sourabh Masar S/o Lal Shankar Masar, Aged About 20
Years, Village Gada Mertiya Tehsil Galiyakot, District
Dungarpur.
64. Raman Lal Dandore S/o Jeeva Dandore,, Aged About 29
Years, Village Borkhed Tehsil Sagwara District Dungarpur.
65. Hari Ram Bhabhor S/o Vela Bhabor, Aged About 25 Years,
Kasaria Teh. Gulniwasiya, Dungarpur.
66. Sunita Kumari Kalasua D/o Mohan Lal Kalasua, Aged
About 22 Years, Village Dhangaon Tehsil Chikli District
Dungarpur
67. Geeta Bhamat D/o Sukh Lal Bhamat, Aged About 28
Years, Village Udadiya Tehsil Simalwara, District
Dungarpur
68. Rajendra Kumar Damor S/o Kawa Damor, Aged About 30
Years, Village Babari Tehsil Kherwara, District Udaipur
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69. Gayatri Kumari Nanoma D/o Shivlal Nanoma, Aged About
27 Years, Village Negla Tehsil Jhothri, District Dungarpur
70. Geeta Kumari Pargi D/o Khemraj Pargi, Aged About 27
Years, Village Foflibar Tehsil Galiyakot District Dungarpur
71. Jitender Kumar Dahma S/o Nana Lal Dahma, Aged About
30 Years, Village Favta Tehsil Sagwara District Dungarpur
72. Kishore Katara S/o Sewa Ram Katara, Aged About 30
Years, Village Mathu Gamda Tehsil And District Dungarpur
73. Himmat Lal Katara S/o Sewa Ram Katara, Aged About 34
Years, Village Mathu Gamda Tehsil And District Dungarpur
74. Pankaj Surat S/o Bhemraj Surata, Aged About 22 Years,
Village Naya Talab Post Gamdi Tehsil Bichhiwara, District
Dungarpur
75. Mahendra Kumar Taral S/o Bhan Ji Taral, Aged About 32
Years, Village Dhamatfala Tehsil Bichhiwara, District
Dungarpur
76. Gayatri Kumari Gameti D/o Bashulal Gameti, Aged About
28 Years, Village Naya Gaon Surta Tehsil Jhothri, District
Dungarpur
77. Pankaj Bhagora S/o Shankarlal Bhagora, Aged About 30
Years, Village Sendola Tehsil Chikhli District Dungarpur
78. Reena Roat D/o Shivram Roat, Aged About 23 Years,
Village Rastapal Tehsil Simalwara District Dungarpur
79. Rajendra Kumar Meena S/o Dalaram Meena, Aged About
25 Years, Jaisamand, Distt. Udaipur
80. Pawan Kumar Dendore S/o Nanu Ram Dandore, Aged
About 26 Years, Village Borkhed Tehsil Sagwara District
Dungarpur
81. Arvind Kumar Meena S/o Dharmdutt Meena, Aged About
27 Years, Village Akot Tehsil Kherwar District Udaipur
82. Kamesh Kalasua S/o Laxman Kalasua, Aged About 30
Years, Kanela, Post Virat, Tehsil Sagwara District
Dungarpur
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Panchayat Raj, Government Of Rajasthan, Jaipur
2. Director, Primary Education, Bikaner, Rajasthan
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3. Chief Executive Officer, Zila Parishad, Udaipur
4. Chief Executive Officer, Zila Parishad, Banswara
5. Chief Executive Officer, Zila Parishad, Dungarpur
----Respondents
For Petitioner(s) : Mr. Moti Singh.
For Respondent(s) : Mr. Kailash Choudhary for Mr. Manish
Vyas, AAG
HON'BLE MR. JUSTICE ARUN BHANSALI
Order REPORTABLE 25/03/2019 These writ petitions have been filed by the petitioners questioning the legality and validity of the cut-off dated 01.06.2018 pertaining to the recruitment to the post of Teacher Gr.III (Level-I) for TSP area and seeking a direction to the respondents to prepare a revised cum fresh merit list while applying the proper reservation procedure according to the Notification dated 04.07.2016 as well as point No.11 of the advertisement.
It is, inter-alia, indicated in the writ petitions that the respondents issued an advertisement No.2/2018 dated 12.04.2018 for recruitment to the post of 5431 teachers Grade-III (Level-I) - General Education and 72 teachers Grade-III (Level-I) - Special Education for TSP area. The minimum qualification indicated was Senior Secondary with BSTC and having passed Rajasthan Eligibility Examination for Teachers ('REET')/RTET.
It is claimed that the petitioners having requisite qualification submitted their on-line application forms. A district and category- wise vacancy was also issued by the respondents, which has been (Downloaded on 30/06/2019 at 03:56:41 AM) (10 of 18) [CW-13016/2018] placed on record as Annexure-2. It is submitted that after completing the process, the respondents issued the cut-off list on 01.06.2018 (Annex.3), according to which, all the candidates, who had applied as TSP (General), TSP (SC) and TSP (ST) (widow and divorcee), got selected and the cut-off for male and female TSP (ST) was indicated as 51.33% marks.
It is, inter-alia, submitted by learned counsel for the petitioners that the manner and procedure adopted by the respondents for determining the merit of TSP (ST) category in issuing the cut-off date 01.06.2018 is highly arbitrary and against the settled procedure.
Submissions have been made that in all 5431 posts in the entire TSP area was advertised and the respondents have issued the list of selected candidates for only 4264 posts, resulting in 1167 posts still remaining vacant, regarding which the merit has not been prepared by the respondents.
Submissions have been made that the respondents have wrongly not considered the candidature of those candidates, who secured less than 60% marks in RTET/REET examination against the TSP(General) category, which is contrary to the stipulation indicated in the advertisement itself, whereby for candidates of Scheduled Tribe category of the scheduled area, the minimum requirement is 36% marks only and therefore, those candidates who got even less than 60% marks, upto 36% marks were entitled to be considered against the position of TSP (General) category. However, the respondents have wrongly confined the same to 60%, resulting in large number of posts remaining vacant in the category of TSP (General), inasmuch as, the respondents have not migrated the ST candidates, who have got less than 60% (Downloaded on 30/06/2019 at 03:56:41 AM) (11 of 18) [CW-13016/2018] marks in RTET/REET from ST to General, which is wholly contrary to the entire scheme and various notifications issued in this regard and therefore, the respondents be directed to redraw the list by treating the candidates, who have got marks 36% and above as eligible to be considered against the category of TSP (General) as per their merit and the petitioners, who are low in merit qua the candidates selected under the TSP (ST) category be accorded appointment as per their merit either in TSP (General) / TSP(ST).
On notices being issued / the respondents having appeared on caveat, a reply to the writ petition has been filed by the respondents, inter-alia, indicating that the total of 5431 posts were advertised for TSP area, out of which 50% seats were kept for General category 50% seats for reserved category; whereafter, the merit list was prepared as per Clause 13 of the advertisement, which required the candidates, who possessed 60% marks in RTET/REET, however, the incumbents belonging to ST of scheduled area having 36% marks in RTET/REET were also eligible and therefore, the merit list / cut-off was prepared accordingly.
Submissions have been made that those belonging to TSP (ST) category, who have secured less than 60% marks in REET/RTET were considered against the vacancies reserved for ST category and the action of the respondents cannot be said to be in violation of the provisions in this regard.
Under the directions of the Court, the respondents have filed an additional affidavit, wherein, inter-alia, the following has been indicated :-
"2. That in the present case, it is pertinent to mention there that the total of 1095 applications were received against the post of TSP General Category and as such, all of them are selected because the applications received were less than the total posts advertised for the TSP General Category and the cut off of the TSP General (Downloaded on 30/06/2019 at 03:56:41 AM) (12 of 18) [CW-13016/2018] Category was 60% i.e. the minimum qualifications prescribed for the TSP General Candidates. Further, as much as, 589 candidates belonging to TSP ST Category, who are having more than 60% in REET/RTET are also selected against the posts of TSP General Category and other candidates of the TSP ST Category who are not having the cut off of the TSP General Category are not selected against the posts of TSP General Category.
3. That it is most respectfully submitted that the petitioners are the candidates who have submitted their applications form in TSP ST Category and are not having the cut off marks of general category i.e. 60% in the REET/RTET and as such their candidatures have not been considered for appointment on the post of Teacher Gr.III Level I vacancies of the TSP General Category.
4. That it is most respectfully submitted that the law in respect of the migration of reserved category candidates on unreserved posts is very well settled i.e. in case a reserved category candidate acquires more marks than the last cut off of the unreserved category than only he was allowed to migrate to the General Category and as such candidate shall be given appointment against the unreserved seat. Whereas, in the present case, the petitioners who have applied under TSP ST and admittedly they are not having the requisite 60% marks in REET/RTET fixed for the General Category candidates, their candidature could not be considered against the posts of unreserved posts. That the present petitioners who have applied from the TSP ST Category and were not selected in the at category because they does not fall within the cut off marks i.e. 51.33% and claimed appointment against the vacant posts of General Category and in the above said situation when the petitioners does not even fall within the cut off their own category they could not be allowed to migrate to the General Category, wherein the cut off is 60% and as such the present writ petition is baseless and frivolous." Learned counsel for the petitioners made submissions in consonance with the averments made in the petitions.
Learned counsel for the respondents also made submissions emphasizing that as none of the candidates in TSP (ST) category have higher marks than the last selected candidate in TSP (General), there is no question of any migration in this regard and therefore, the plea raised by the petitioners in this regard cannot be countenanced.
Reliance has been placed on Gaurav Pradhan & Ors. v. State of Rajasthan & Ors. : (2018) 11 SCC 352, Deepa E.V. v. Union of (Downloaded on 30/06/2019 at 03:56:41 AM) (13 of 18) [CW-13016/2018] India : (2017) 12 SCC 680, and Vikas Sankhala & Ors. v. Vikas Kumar Agarwal & Ors. : (2017) 1 SCC 350.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The respondents vide advertisement dated 12.04.2018 advertised 5431 posts for Teacher Gr.III (Level-I) TSP area for General Education. The advertisement provided following general information :-
"1- izkFkfed ,oa mPp izkFkfed fo|ky; v/;kid lh/kh HkrhZ&2018 ysoy&izFke dh ojh;rk lwph ¼Merit List½ esa 'kkfey gksus ds fy, vH;FkhZ dks jktLFkku v/;kid ik=rk ijh{kk (RTET/REET) ds ysoy izFke esa U;wure 60 izfr'kr mÙkh.kkZad (Minimum Passing Marks) vftZr djuk vfuok;Z gksxk] ijUrq jkT; ljdkj ds vf/klwpuk Øekad F.7(i)EE/Plan/2011 fnukad 29-08-2012 ds vuqlkj vf/klwfpr {ks=ksa (Scheduled Area's) ds vuqlwfpr tutkfr ds vH;fFkZ;ksa ds fy;s U;wure 36 izfr'kr mÙkh.kkZad (Minimum Passing Marks) vfuok;Z gksxk] ijUrq vf/klwpuk tkjh gksus ls iwoZ vk;ksftr vkjVsV 2011 ds lEca/k esa mUgsa ;g NwV ns; ugha gksxhA "
In the above general information, it was specifically provided that in terms of Notification dated 29.08.2012, the candidates belonging to ST of scheduled area, the requirement of minimum passing marks in RTET/REET would be 36%, whereas the same would be 60% for other candidates.
The notification dated 29.08.2012, reads as under :-
"In exercise of powers conferred under sub-paragraph (1) of Paragraph 5 of Fifth Schedule to the Constitution of India. I, Smt. Margret Alva, Governor of Rajasthan, hereby direct that sub-section (1) of section 23 of the Right of Children to Free and Compulsory Education Act, 2009 [Central Act No.35 of 2009] shall apply to the Scheduled Areas with the modification that any person belonging to Scheduled Tribe of that Area shall be eligible for appointment as a teacher, same has obtained minimum 36% marks in the qualifying examination laid down under that sub-section.
Marget Alva Governor of Rajasthan"(Downloaded on 30/06/2019 at 03:56:41 AM)
(14 of 18) [CW-13016/2018] A perusal of the above notification would reveal that the same pertains to a direction issued by the Governor exercising powers under sub-paragraph (1) of Paragraph 5 of Fifth Schedule to the Constitution of India and provided for modification that any person belonging to ST of the scheduled area shall be eligible for appointment as a Teacher if he has obtained minimum 36% marks in the qualifying examination.
Sub-paragraph (1) of Paragraph 5 of the Fifth Schedule, reads as under :-
"5. Law applicable to Scheduled Areas.- (1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect."
A perusal of the provisions of sub-paragraph (1) of Paragraph 5, Notification dated August 29, 2012 and the stipulation in the advertisement dated 12.04.2018 clearly indicates that the minimum requirement of marks under REET / RTET for ST candidates of Scheduled Areas has been modified from 60% to the extent of 36%. In fact, the same cannot even be termed as a relaxation having been accorded to the said ST candidates of Scheduled Areas. This aspect is further fortified from the fact that the requirement of having 60% marks in RTET has not been relaxed for any other category/candidate.
A perusal of the category-wise vacancies (Annex.2) indicates that total posts meant for General category were 2721, 269 were reserved for SC category and 2441 were reserved for ST category. Out of the total 2721 posts meant for General category, the (Downloaded on 30/06/2019 at 03:56:41 AM) (15 of 18) [CW-13016/2018] respondents have accorded appointment to only those candidates, who have 60% marks in REET/RTET and only those belonging to ST of scheduled area have also been permitted to migrate to the General category, who have more than 60% marks in REET/RTET, which number is indicated at 589 candidates.
It is not in dispute that after according the appointments under various categories, 1167 posts remain vacant, essentially, on account of the fact that the posts in TSP (General) have remained vacant.
The case of the petitioners that the candidates, who have been selected against TSP (ST) have to migrate to the vacant positions in TSP (General), inasmuch as, merely because they have less than 60% marks in REET/RTET, they cannot be counted against the vacancies of TSP(ST) candidates and deprive the petitioners, who are lower in merit than the candidates, who have been granted appointment under the TSP (ST) category, but have minimum 36% marks in REET/RTET, as once the candidates, who are higher in merit migrate to TSP (General), the petitioners would be entitled to fill up those vacancies, has substance.
The plea which has been raised by the respondent-State, as noticed herein-before by way of additional affidavit, is that only those candidates can migrate to General category, who have higher marks than the last cut-off of the General category. The said submission made by the respondents is fallacious. In normal circumstances, wherein all the posts of General category are filled up, it is only those candidates, who are having higher marks in reserved category and who have not taken any benefit of relaxation can only migrate to the General category, however, present is a typical case, wherein large number of vacancies in (Downloaded on 30/06/2019 at 03:56:41 AM) (16 of 18) [CW-13016/2018] TSP (General) are lying vacant and therefore, the principle sought to be applied that the candidate of reserved category must have higher marks than the cut-off of General category, cannot be applied in the present case.
As the qualification for ST of the scheduled areas stands amended on account of notification dated 29.08.2012, it cannot be said that those who have less than 60% marks in REET/RTET cannot migrate to TSP (General), as it cannot be said that the said candidates have obtained any relaxation in this regard, which position has to be distinguished based on the language of the notification, which clearly indicates that the requirement laid down under the relevant provision would get modified.
So far as, reliance placed by learned counsel for the respondents on various judgments is concerned, in the case of Vikas Sankhala & Ors. (supra), the principle laid down reads as under :-
84. These appeals are accordingly allowed in the manner indicated in this judgment, effect whereof would be as under:
84.1. Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the Government in its Communication dated 23-3-2011 to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the State Government. 84.2. Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category."
As already noticed herein-before, the principle that the reserved category candidates, who secure more marks obtained by the last unreserved category candidates can migrate, laid down in Clause (84.2) (supra), would have no application in the present case, where large number of vacancies are available in the TSP (Downloaded on 30/06/2019 at 03:56:41 AM) (17 of 18) [CW-13016/2018] (General) category. The said principle only applies in a case where all the positions of General category are filled up.
Similarly, the principle laid down in the case of Deepa E.V. (supra) regarding bar of candidates belonging to SC/ST/OBC category, who have availed relaxation for being considered for General category candidates for the reason indicated herein- before, would have no application to the facts of the present case.
Similarly, the judgment in the case of Gaurav Pradhan & Ors. (supra) also would have no application to the facts of the present case.
In view of the above discussion, the action of the respondents in not migrating ST of the Scheduled Areas from TSP (ST) to TSP (General), despite there being large number of vacancies on account of the candidates having obtained less than 60% marks in REET/RTET and on the ground that they did not obtain higher marks than the last cut-off of the general candidates, cannot be sustained.
Consequently, the writ petitions filed by the petitioners are allowed. The respondents are directed to redraw the merit list pursuant to the advertisement dated 12.04.2018 for Teacher Gr.III (Level-I) for TSP area based on the principles laid down herein- before.
It is made clear that except for the marks obtained by the ST candidates of Scheduled Areas in the REET/RTET, the restrictions on migration as applicable, would apply. On redrawing the merit list and on migrating the eligible candidates presently selected against the TSP (ST) category to TSP (General) category, the vacancies which occur in TSP(ST) category be filled up by the (Downloaded on 30/06/2019 at 03:56:41 AM) (18 of 18) [CW-13016/2018] eligible candidates. Those candidates, who are now selected pursuant to the above exercise, would be entitled to all notional benefits based on the appointment accorded to the candidates, whose names appeared in the select list dated 01.06.2018. However, the candidates would be entitled to monitory benefits from the date they are accorded appointment by the respondents.
The entire exercise be undertaken and concluded by the respondents within a period of two months from the date of this order.
(ARUN BHANSALI),J Rmathur/-
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