Rajasthan High Court - Jaipur
Bharat Bhushan Basotia vs State Of Rajasthan on 19 October, 2005
Equivalent citations: RLW2006(1)RAJ329, 2006(2)WLC83
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT K.S. Rathore, J.
1. Since all the aforesaid writ petitions involve common question of law, therefore, these four writ petitions are being decided by this common judgment. The facts of the case of Bharat Bhushan Basotia v. State of Rajasthan and Ors. SBCWP No. 8152/2004 are being taken as a leading case.
2. Brief facts of the case are that on 4.8.2003, the Rajasthan Public Service Commission (for short "the RPSC") issued an advertisement for conducting the examination for 108 posts of Munsif and Judicial Magistrate under the Rajasthan Judicial Service Rules, 1955 including the reserved category of SC/ST & OBC. The advertisement also contains that for the women candidates, there shall be horizontal reservation and in case of non-availability of women candidates, the seats are required to be filled by normal procedure.
3. All the petitioners applied for the post of Munsif and Judicial Magistrate and appeared in the written examination. The RPSC declared the result on 25.6.2004. Thereafter, interview was conducted by the RPSC and the petitioners appeared before the RPSC for interview. Final result was declared by the RPSC on 21.8.2004 and against the 108 posts, 81 candidates were declared selected. The name of the petitioners were kept in reserve list.
4. The main grievance of the petitioners is that reservation for SC & ST candidates shall be at the time of initial recruitment only in proportion of 16% and 12% respectively of the vacancies advertised. In the event of non-availability of eligible and suitable candidates amongst SC & ST candidates, as the case may be, in a particular year, the vacancies so reserved for them shall be filled by normal procedure and equivalent number of vacancies shall be reserved in subsequent year. Such vacancies which remain so unfilled shall be carried forward to the subsequently three years in total and thereafter such reservation including carried forward vacancies shall not exceed the percentage prescribed for total number of posts in the category for which direct recruitment is made.
5. It is also submitted that reservation for women candidates shall be 20% category wise in direct recruitment. In the event of non-availability of eligible and suitable candidates amongst the women candidates in a particular year, the vacancies so reserved for them shall be filled by normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i.e., the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs. Therefore, once the law requires that the unfilled reserved category vacancies are to be filled up by normal procedure then the RPSC was required to prepare the select list by adding those vacancies of reserve category for which the suitable candidates were not available. However, the unfilled vacancies of reserved category have not been included in the vacancies of general category.
6. In exercise of powers conferred by Article 234 read with Article 238 and the proviso to Article 309 of the Constitution of India, His Highness the Rajpramukh of Rajasthan makes the Rajasthan Judicial Service Rules, 1955 (hereinafter to be referred as the Rules of 1955) after consultation with the High Court of Judicature for Rajasthan. Part-III contains principles and procedure of recruitment and promotion. Rule 9 of the Rules of 1955 deals with the reservation of reserved categories which is reproduced hereunder:--
9. Reservation for Scheduled Castes/Scheduled Tribes/Other Backward Classes and Women Candidates. (1) Reservation for the Scheduled Castes and Scheduled Tribes Candidates shall be at the time of initial recruitment only in the proportion of 16% and 12% respectively of the vacancies advertised. In the event on non- availability of 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 filled in accordance with the normal procedure and equivalent number of vacancies shall be reserved in subsequent year. Such vacancies which remain so unfilled shall be carried forward to the subsequent three years in total and thereafter such reservation would lapse:--
Provided that the total reservation including carried forward vacancies shall not exceed the percentage prescribed for total number of posts in the category for which direct recruitment is made.
(2) Reservation for other Backward Classes shall be at the time of initial recruitment only in the proportion of 21% of the vacancies advertised. In the event of non-availability of eligible and suitable Candidates amongst the Other Backward Classes in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and vacancies shall not be carried forward to the subsequent year.
(3) Reservation for women candidates shall be 20% categorywise in direct recruitment. In the event of non- availability of the eligible and suitable Women candidates in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i.e., the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs.
7. Learned Counsel for the petitioners submits that these rules clearly provides that in the event of non-availability of eligible and suitable candidates amongst the candidates of reserved category, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year. The selecting authority when came to know after interview that women candidates are not available, they ought to have included the name of the petitioner amongst the selected candidates in the main list itself.
8. The main contention of the petitioners is that non- consideration of the case of the petitioners is in contravention of Rule 9(3) of the Rules of 1955 as 8 posts of SC category and 11 posts of ST category remained unfilled on account of non- availability of eligible and suitable candidates, which were required to be filled in accordance with the normal procedure. The petitioner secured 181 marks i.e., one mark less than the marks obtained by the last general candidate, ought to have considered in the list of selected candidates in the main list and he had right and claim against the 8 unfilled vacancies of women candidates.
9. Learned Counsel for the petitioners referred notification dated 10.10.2002 published in Rajasthan Gazette by which the various service rules were amended as mentioned in the Schedule. These rules are called Rajasthan Various Services Amendment Rules, 2002. As per amendment, the existing Sub-rule (4) except its proviso of rule as mentioned in column No. 3 against each of the service rules as mentioned in Column No. 2 of the Schedule appended herewith shall be substituted by the following: namely:--
(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 of 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 or the Scheduled Tribes Candidates, as the case may be, shall have to vacate the post as and when the candidate(s) of the category become available.
10. This amendment includes as many as 109 service rules, but it does not include the Rajasthan Higher Judicial Service Rules, therefore, the amendment is not applicable to the Rajasthan Higher Judicial Service.
11. Learned Counsel for the petitioners placed reliance on the judgment rendered in case of State of Bihar v. Bal Mukund Shah herein the Hon'ble Supreme Court has held as under--
The Governor can, in consultation with the High Court, make appropriate rules and provide for scheme of reservation for appointment at grass root level or even at the highest level of the District Judiciary, but so long as this is not done, the State legislature cannot, by upsetting the entire apple cart and totally by passing the constitutional mandate of Article 233 and 234 and without being required to consult the High Court, lay down a statutory scheme of reservation as a road roller strait jacket formula uniformly governing all state services, including the judiciary.
It is easy to visualise that if the High is not consulted and obviously not consulted while enacting any law by the State Legislature and en bloc 50% reservation is provided in the judicial services as is sought to be done by Section 4 of The Bihar Act and which would automatically operate and would present the High with a fait accompli, it would be deprived of the right to suggest during the constitutionally guaranteed consultative process, by way of its own expertise that for maintenance of efficiency of administration in the judicial service controlled by it 50% reservation may not required and/or an even lesser percentage may be required or even may not be required at all.
Beyond the permissible percentage of reservation for direct recruitment under the Rules, unless the rules are properly amended by following the procedure of Article 233 and 234 read with Article 309 after consulting the High Court, the Governor on his own cannot provide for any more reservation. Nor can, by legislative Act, an independent provision under Article 16(4) totally by passing the High Court be resorted to.
The PSC is merely an examining body. It has nothing to do with the policy decision of laying down of reservation in appointments to the posts. That policy has to be resorted to under Article 16(4) by the Authority calling upon the PSC to proceed with the procedure of selection of suitable candidates for filling up advertised posts subject to the conditions laid down in the advertisements.
The provision of Bihar Reservation of Vacancies in posts and Services (for SC/ST and OBC) Act, 1991 has no application to the recruitment of Judicial Officers in the State of Bihar.
12. In case of Ajit Singh v. State of Rajasthan , Hon'ble Supreme Court has held as under:--
Article 16(4) & (4-A) open with a non-obstinate clause--Nothing in this Article shall prevent the State from making any provision for reservation. There is no directive or command in the language used in Article (4) & (4-A) as in Article 16(1). Article 16(4) is an enabling provision and conferred only a discretion and did not create any constitutional duty or obligation.
Rule 9 mandated that all 108 advertised vacancies were to filled in accordance with the normal procedure and commission was to scrupulously follow the statutory rules operating in the field and was bound to issue the select list containing 108 names as per the existing rules of 1955.
13. In case of Inder Prakash Gupta v. State , Hon'ble Supreme Court has held as under:--
While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field.
14. In case of State of Punjab v. Manjeet Singh , Hon'ble Supreme Court has held as under:--
The PSC has to conform to the provisions of law and has to abide by the rules and regulations on the subject.
15. In case of Surendra Narain v. State of Bihar , Hon'ble Supreme Court has held as under:--
In the absence of any provision under the 1955 Rules to carry forward the SC/ST vacancies/Posts & in view of mandate of Rule 20, the BPSC was obliged to nominate the candidates from the merit list to the vacant posts reserved for SC/ST.
16. In case of N.T. Devin Ketti v. K.P.S.C. , Hon'ble Supreme Court has held as under:--
A candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement.
17. In case of Richpal Singh v. State reported in RLR 1991 (2) 86, this Court relying on N.T. Devin Ketti's case has held as under:--
Candidates who apply and undergo the written or viva voce test acquire vested right for being considered for selection in accordance with terms and conditions of an advertisement.
Order of Govt. imposing ban on de-reservation of SC/ST vacant seats is illegal being against existing rules.
18. In case of Ashok Lanka v. Rishi Dixit , Hon'ble Supreme Court has held as under:--
Mr. Desai is not correct in his submissions that Clause 22 of the said circular, contemplates a future amendment in the Rules. Even if the same contemplates a future amendment, the same would not subserve the statutory requirement in as much as the commissioner of Excise was not supposed to know as to how the existing Rules would be amended and whether the same would be applied prospectively or retrospectively. The Court cannot draw a presumption that the commissioner of excise could proceed on a presupposition that his action in issuing a circular contrary to Rules would stand ratified by retrospective operation of the Rules A statutory authority, it is trite, must exercise his jurisdiction with the four corners of the statute and cannot deviate or depart therefrom.
The State is bound by the terms of the advertisement and the rules existing at that time. The statutory authorities and the applicants are expected to follow the law as it stood hence.
19. In case of Brij Mohan v. UOI , Hon'ble Supreme Court has held as under:--
After ad-hoc promotion of Judicial officers of the Fast Track courts the consequential vacancies shall be filled up immediately by organizing a special requirement drive. Steps should be taken in advance to initiate process for selections to fill up these vacancies much before the judicial officers are promoted to the Fast Track Courts, so that vacancies may not be generated at the lower levels of subordinate judiciary. The High Court and the state Govt. concerned shall take prompt steps to fill up the consequential as well as existing vacancies in the subordinate courts on priority basis.
20. In case of Ashok v. State of Karnataka , Hon'ble Supreme Court has held as under:--
We therefore, allow the appeal and direct the respondents to give appointment to the appellant Ashok alias Somanna Gowda on the post of Assistant Engineer (Civil) and appellant Rajendra on the post of Assistant Engineer (Mech.) in Public Works Department within a period of two months of the communication of this order.
21. In case of Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve and Ors. reported in 2002 (1) RSJ 208, Hon'ble Supreme Court has held as under:--
The criteria of selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.
Draft Rules annexed by the State Govt. providing reservation for SC/ST cannot be applied on the present selections.
22. In case of Naresh Kumar Gupta v. State reported in 2004 (4) WLC 281, the Division Bench of this Court has held as under:--
Draft rules framed by the High Court but till such time the rules are made by the Governor and notified cannot apply on the selections.
23. In case of State of U.P. and Ors. v. Pawan Kumar Tiwari reported in 2005 (2) SCC 10, Hon'ble Supreme Court has held that reservation exceeding 50% would be unconstitutional.
24. In case of A.R. Autulay v. R.S. Nayak , Hon'ble Supreme Court has held that it is settled Rule that if a decision has been given per in curium the court can ignored it.
25. In case of Bhav Nagar University v. Palitana Sugar Mills , Hon'ble Supreme Court has held as under:--
A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of decision.
26. In case of Miss. Neelima Shangla, Ph.D. Candidate v. State of Haryana and Ors. , Hon'ble Supreme Court has held as under:--
PSC erred in withholding names of several successful candidates including the petitioner on ground of limited number of vacancies-petitioner who was consequently not appointed, entitled to be appointed as Subordinate Judge with due place in seniority list.
27. On behalf of Rajasthan Public Service Commission (For short the RPSC), it is submitted that after receipt of requisition from the State of Rajasthan, the RPSC advertised 108 posts of Munsif and Judicial Magistrate on 4.8.2003 under the Rajasthan Judicial Service Rules, 1955 and written examination were conducted on 22.2.2004 and 23.2.2004 and the result was declared on 25.6.2004.
28. As per Schedule-III appended to the Rules of 1955, the RPSC had declared the successful/eligible the candidates three times to the number of vacancies notified and they were called for interview. The result of the interview was declared on 20.8.2004. It is categorically stated that the petitioners did not find place in the main select list and their names find place in the reserve list.
29. Learned Counsel appearing for the RPSC further submitted that unfilled vacancies of SC & ST categories cannot be filled up by adopting general procedure in view of the 81st amendment in the Constitution made effective from 9.6.2000 by which Article 16(4)(B) has been inserted in the Constitution. Accordingly, the State Government had issued the notification dated 10.10.2002 and as per the notification, the selection process was completed and unfilled vacancies of SC & ST were left vacant.
30. As per the final result only 11 candidates of SC male (general) and 5 candidates of ST male (general) were selected, but in female category of SC & ST not a single candidate was found suitable for appointment, therefore, 27 vacancies of SC & ST male (general) and female remained unfilled and the same could not be filled in view of 81st Constitutional Amendment and notification dated 10.10.2002.
31. Learned Counsel for the RPSC referred Sub-rule 3 of the Rule 9 and submits that the petitioners are wrongly interpreting the said rule and the petitioners are only entitled for consideration against the vacancies belonging to SC & ST irrespective of the fact that the same remained unfilled in view of amendment in the Constitution, rules as well as notification issued by the State Government.
32. Learned Additional Advocate General Mr. Mohd. Rafiq appearing on behalf of the State also supported the submissions made on behalf of the RPSC and submitted that for the posts which are meant for reserve women candidates no legal right accrues to the petitioners to claim appointment against such posts as the petitioners name find place in the reserve list and the Government has decided to send fresh requisition to the RPSC for filling up 27 posts pertaining to reserve category and steps are being taken accordingly to inform the RPSC.
33. Mr. Rafiq, further referred Rule 9(3) and Constitutional Amendment in Article 16(4)(B). As per Article 16(4)(B), nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.
34. It is submitted that 81st Constitutional Amendment was proposed to be made in the Rajasthan Judicial Service Rules also. However, owing to the requirement of consultation of the Rajasthan High Court on administrative side, this could not be immediately done and in this respect, a request was sent to the Registrar, Rajasthan High Court for their consultation. In the meantime, on recommendations of the Rajasthan High Court process was started for framing new rules and the draft rules proposed by the High Court does not contain any rule similar to Rule 9 which is being relied upon by the petitioners.
35. Mr. Rafiq, further submits that the State of Rajasthan in its Department of Personnel vide circular dated 22.6.2004 clearly laid down guidelines that in the event of non-availability of reserved category candidates, the unfilled posts belonging to such category shall be carried forward till the suitable candidates could not become available and appointment against such unfilled posts cannot be given to any general category candidates either by way of direct appointment or by promotion. Even if amendment could not be timely made in RJS Rules, such a lacuna cannot come to the rescue of the petitioners because the same stood cured by executive instructions.
36. On behalf of the Rajasthan High Court, Mr. A.K. Sharma adopted the submissions made on behalf of the State. Learned Counsel for the High Court submits that for the current year in all 24 vacancies of SC & ST category were advertised out of which 14 were of SC and 10 were of ST category. By the same advertisement 19 back log vacancies of SC & ST category were also advertised. Thus, in all 43 vacancies were advertised for SC & ST category, out of which 27 vacancies remained unfilled. Out of said 19 backlog advertised vacancies only 8 vacancies of SC category and 5 vacancies of ST category have been filled as per Rules and thereby six vacancies of ST category remained unfilled. Out of the said 24 advertised current year vacancies only 3 vacancies of SC category have been filled in and 21 vacancies remained unfilled as per Rules. Thus, in all 27 vacancies of SC & ST category remained unfilled and the same have not been de- reserved.
37. So far as interpretation of Rule 9(3) is concerned, Mr. A.K. Sharma submits that the normal procedure as envisaged under Rule 9(1) and 9(3) is only applicable when reserved posts are de- reserved by the Government in consultation with the High Court as held by Hon'ble Supreme Court in a case .
38. In support of their submissions, learned Counsel for the respondents placed reliance on the judgment rendered in case of Post Graduate Institute of Medical Education & Research, Chandigarh and Ors. v. K.L. Narasimhan and Anr. wherein Hon'ble Supreme Court has held as under:--
The Institute is bound by the reservation policy of the Government of India. The relevant provisions clearly indicate that the reservation is applicable and therefore, the Scrutiny Committee of the institute is bound to apply the rule of reservation to the said posts. Merely because the institute is an autonomous body, it cannot, except with the prior permission of the Ministry of Personnel, and the Ministry of Health and Family Welfare in the Central Government, deserve the posts. Though the Committee had recommended to the Government of India to deserve the post, so long as the Government of India has not given any direction to the Institute to deserves the post, it has no power to do the same and is bound to implement the principle of reservation. The Institute is enjoined to abide by the constitutional policy of reservation.
39. In case of RPSC and Anr. v. Harish Kumar Purohit and Ors. , Hon'ble Supreme Court has held as under:--
Once it has been accepted by the High Court that it was open to the Government to decide as to whether the posts are to be dereserved or carry-forwarded, there was no basis to proceed on the assumption that they would be dereserved, thereby making the number of posts available for the General category as 70. At the completion of the written examinations, there were only 59 posts available for the General category. On a hypothetical basis that there is a possibility to increase the number of posts in the General category, candidates numbering three times the number of posts including assumed inclusions had to be called, the High Court gave the direction which defies logic.
40. Further reliance has been placed on the judgment in case of Ashwani Kumar Singh v. UP Public Service Commission and Ors. wherein Hon'ble Supreme Court has held that vacancies which exist on account of some selected candidates not joining need not perforce be filled up from the merit list. Much would depend on the statutory provisions governing the field. On the facts, when the vacancies were carried forward to the subsequent year and filled up on the basis of subsequent examination, claim of the wait-listed candidates could not be sustained.
41. Learned Counsel for the respondents also placed reliance on the judgment dated August 6, 2002 passed by Division Bench of this Court in case of Suman Saharan and Ors. v. State of Rajasthan and Ors. DBCWP No. 1514/2001 and judgment dated September 9, 2005 passed by Single Bench in case of Naresh Sharma and Ors. v. RPSC Ajmer and Ors. SBCWP No. 6212/2005: 2005 (4) RLW 3019.
42. Heard rival submissions of the respective parties and perused the relevant provisions as well as judgments cited before me.
43. The petitioners are aggrieved by their non-selection on the post of Munsif and Judicial Magistrate. Admittedly, 27 posts of SC & ST category remained unfilled, therefore, the petitioners, whose names were in the reserve list, taking shelter of Rule 9 (3) preferred this writ petition.
44. Rule 9(3) speaks about the reservation for women candidates shall be 20% categorywise in direct recruitment. In the event of non-availability of the eligible and suitable women candidates in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i.e., the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs.
45. In case the selections are made strictly in accordance with Rule 9(3), the petitioners can get the chance for appointment.
46. The controversy arise when the notification dated 10.10.2002 was published in the Rajasthan Gazette by which various service rules were amended. These rules are called Rajasthan Various Services Amendment Rules, 2002. As per the amended rules, 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 candidates, as the case may be, are available.
47. 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.
48. I have carefully perused the judgments referred by the parties.
49. In case of State of Bihar v. Bal Mukund Shah (supra), Hon'ble Supreme Court has held the Government in consultation with the High Court make appropriate rules and provide for scheme of reservation for appointment at grass root level or even at the highest level of the district judiciary, so long as this is not done, the State legislature cannot by upsetting the entire applo cart and totally by passing the constitutional mandate of Article 233 and 234 and without being required to consult the High Court.
50. Here in the instant case also, it is not disputed that still no approval was given by the High Court to adopt the notification issued by the State Government. Thus, the Rajasthan Judicial Services Rules are not included in the list of the State whereby amendment pursuant to the notification dated 10.10.2002 has been made.
51. In case of Ashok Lanka (supra), it has been held that the State is bound by the terms of the advertisement and the rules existing at that time. The statutory authorities and the applicants are expected to follow the law as it stood.
52. In case of Maharashtra State Road Transport Corporation (supra), it has been held that criteria of selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.
53. In case of Ashwani Kumar Singh (supra), Hon'ble Supreme Court has held that claim of the wait-listed candidates could not be sustained when the vacancies wee carried forward to the subsequent year and filled up on the basis of subsequent examination.
54. I have carefully gone through the ratio decided by Hon'ble Supreme Court in the aforesaid cases.
55. It is not disputed that selection process is over and appointments have been made and unfilled 27 vacancies from SC & ST category are going to re-advertise as submitted by learned Addl. Advocate General. At this stage, I do not want to unsettle, the settled position. In view of ratio decided in the case of Ashwani Kumar, the petitioners are not entitled to be considered against the 27 vacancies as their names were in the reserve list.
56. Rule 9(3) of the Rules of 1955 till date has not been amended as admitted by the respective parties and the selection process on the post of Munsif and Judicial Magistrate should be made strictly in accordance with the prevalent rules.
57. Article 16(4)(B) provides that nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. Meaning thereby, Article 16(4)(B) is directory not mandatory and liberty is given to the State to make the rules and provisions for the reservation.
58. Since only administrative communication is received by the High Court from State, such administrative instruction issued by the State can only be followed after amendment in the rules and the rules can only be amended with the consultation of the High Court. Thus, the notification dated 10.10.2002 cannot be applied to the Rajasthan Judicial Service until and unless, the rules are amended accordingly, therefore, selections can only be made strictly accordance with the prevalent rules.
59. As stated hereinabove, since selection process is already over and appointments have been made, at this stage, I do not want to unsettle the settled position and 27 unfilled vacancies can be re-notified. In future, the selections on the post of Munsif and Judicial Magistrate should be made strictly in accordance with the prevalent Rules of 1955 not on the basis of notification dated 10.10.2002 till the amendment is incorporated after the consultation with the High Court.
60. With the aforesaid observation, the writ petition stands disposed of.