Rajasthan High Court - Jaipur
Shiv Pal vs State (Power And Energy )Ors on 27 March, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 12960 / 2015
Shiv Pal
----Petitioner
Versus
State (Power And Energy )Ors
----Respondents
_____________________________________________________
For Petitioner(s) : Mr Ram Pratap Saini
For Respondent(s) : Mr. Babu Lal Saini, Deputy Govt. Counsel
_____________________________________________________
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Order
27/03/2017
Present petition has been filed under Article 226 of the
Constitution of India praying that action of the respondents not to
migrate candidate in the reserve category who have obtained
more marks than the last candidate in the general category, to the
unreserved(general) category be set aside.
This court on 10.03.2017, had passed the following
order:-
"Counsel for the petitioner has contended that it is a
settled legal position that any candidate belonging to reserve
category who secure more marks than the last candidate in
the general category, is to be treated in the general category
and therefore, will not consume the post available for the
reserved candidate.
Counsel for the petitioner has relied upon the judgment
rendered by this court in Altaf Hussain vs. High Court of
Judicature for Rajasthan in S.B. Civil Writ Petition
No.11807/2016, decided on 06.03.2017, wherein it was
held as under:-
"Counsel appearing for the petitioner has made a grievance that
District & Sessions Judge, Jaipur Metropolitan Jaipur, gravely erred
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to exclude seventeen-persons of Other Backward Class Category from
the General Category merit list, even though said persons had secured
more marks then the last candidate in the General Category.
Counsel appearing for the petitioner has relied upon the
judgment rendered by the Co-ordinate Bench of this Court in the case
of Jaswant Singh Vs. The State of Rajasthan & Another (S.B. Civil
Writ Petition No.8334/2012), decided on 27.11.2015, to contend
that those persons belonging to Backward Classes Category, who had
obtained more marks then the last candidate in the General Category
are to be considered in the General Category.
It is urged that it is a settled law that if the Backward
Classes Candidates get selected to the posts advertised on the basis of
merit they are to be treated as General Category Candidates and not
as reserved category candidates.
In support of this contention, ld. counsel appearing for the
petitioner, has relied upon the observations made by 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.
The observations made by the Supreme Court in the case
of Jitendra Kumar Singh and another (supra) reads 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:
"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
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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 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
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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."
Unable to assail the settled legal position canvassed by ld.
counsel appearing for the petitioner, Ms. Ashish Joshi, appearing for
the respondent- High Court, has contended that advertisement was
issued in the year, 2013 and in pursuance thereof appointment letters
were issued in favour of respondent Nos.4 to 6 in the year, 2013.
Thus, it is urged that present petition suffers from delay and
latches as the writ petition has been filed after three-years of the
issuance of the appointment letters in favour of respondent Nos.4 to 6.
To controvert the submissions advanced by ld. counsel appearing
for the respondent - High Court, ld. counsel appearing for the
petitioner, has contended that the petitioner earlier approached this
Court by filing S.B. Civil Writ Petition No.1142/2014 and the said
writ petition was disposed of by directing the petitioner to obtain
information under the Right to Information Act.
The order dated 19.02.2014 passed by the Co-ordinate Bench in
S.B. Civil Writ Petition No.1142/2014 preferred by the petitioner
reads as under :-
"Learned counsel submits that instead of challenging the
order at Annexure-5, prays for a direction to the
Commissioner, Information to expedite hearing of the
pending appeal.
As prayed, writ petition so as stay application are disposed
of with the direction to the Commissioner, Information to
expedite hearing of the pending appeal and if possible,
decide it within a period of two months from the next date
fixed for it or if notice has not been served on the
respondents, then from the date of service."
Counsel appearing for the petitioner submits that in pursuance of
the aforesaid order dated 19.02.2014 passed by the Co-ordinate Bench
in earlier writ petition i.e. S.B. Civil Writ Petition No.1142/2014
preferred by the petitioner, the petitioner obtained information under
the Right to Information Act only on 28.07.2016 and immediately
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thereafter in August, 2016 writ petition has been filed by the
petitioner.
Having heard the learned counsel appearing for the parties, I
find merit in the contention raised by the learned counsel appearing
for the petitioner.
It is a settled legal position that if a person belonging to reserved category succeed in selection in open competition on the basis of his merit, he is not to be counted in the reserved category against the reserved category quota.
Mr. Khan, ld. counsel appearing for the petitioner, has rightly submitted that if seventeen persons belonging to Backward Classes Category, who made to merit list by obtaining more marks then the last candidate in the General Category are transposed to the General Category, the petitioner will be entitled to get appointment under the Backward Class Category as the name of the petitioner is at serial No.18, out of 27 seats reserved for Backward Class Category Candidates.
Contention raised by ld. counsel appearing for the petitioner is also fortified by the observations made by the Supreme Court in the case of Samta Aandolan Samiti and another Vs. Union of India and Others, reported as 2014 A.I.R. SCW 406.
Admittedly, District & Sessions Judge, Jaipur Metropolitan Jaipur had acted against the mandate of law by not treating meritorious Backward Classes Category Candidates as part of the general list, therefore, candidates, like the petitioner belonging to Backward Class Category have been wrongly excluded from the process of selection.
It is also true that the respondents No.4 to 6 are working on the post of Lower Division Clerk from last four years and they have been confirmed against the post of Lower Division Clerk.
Therefore, to draw the balance of equities, it is, hereby, ordered that the petitioner belonging to Backward Class Category be considered and appointed, if otherwise eligible, against the vacant posts available or against the post which may accrue under the category of Backward Class in near future."
Mr. Babu Lal Saini appearing for respondent No.1 and Mr. Surya Prakash appearing for respondent Nos.2 and 3 pray for an adjournment.
Adjournment prayed for is granted.
Meanwhile, respondent No.2 is directed to file his affidavit as to why in contravention of the orders passed by this court and the Supreme Court, he has proceeded with the selection process wrongly.
List for arguments on 25.03.2017.
(6 of 7) [CW-12960/2015] Copy of this order be handed over to Mr. Babu Lal Saini and Mr. Surya Prakash under the seal and signature of Court Master for onward transmission and necessary compliance. In case, affidavit is not filed on or before the above said date, respondent No. 2 shall remain present in this court."
In pursuance of the above order dated 10.03.2017, record was produced in this court and an additional affidavit was filed on behalf of Chairman-cum-Managing Director of Rajasthan Rajya Vidhyut Prasaran Nigam Limited.
Consequently, on 25.03.2017, this court had passed the following order:-
"In pursuance of order dated 10.03.2017, respondents have filed additional affidavit of Shri Sanjay Malhotra, Chairman-cum- Managing Director, Rajasthan Rajya Vidhyut Vitran Nigam Limited.
Shri Lokendra Singh Shekhawat on instructions of Shri Alok Srivastava, Deputy Director (Personnel) Headquarter, has stated that candidates belonging to reserved category, who had obtained more marks than the last candidate in general category, by way of migration were adjusted in general category (unreserved category) and thus, grievance made by the petitioner is factually incorrect.
Counsel for the respondents has shown the record brought by Shri Alok Srivastava, Deputy Director (Personnel) Headquarter, to Shri Ram Pratap Saini, the counsel for the petitioner.
Counsel for the petitioner, prays for a short adjournment.
List on 27.03.2017."
Mr. Ram Pratap Saini, counsel for the petitioner, today has contended that he may be permitted to withdraw the present petition with liberty to file a fresh petition giving particulars to show that the stand taken by the respondents is not correct.
(7 of 7) [CW-12960/2015] As prayed, present writ petition is dismissed as withdrawn with liberty, aforesaid.
(KANWALJIT SINGH AHLUWALIA)J. Heena/116