Rajasthan High Court - Jodhpur
Girish Kumar Joshi vs State Of Rajasthan on 13 May, 2024
[2024:RJ-JD:14390]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14609/2023
1. Hitesh Chandra Bhatt S/o Praveen Chandra Bhatt, Aged
About 44 Years, R/o Village And Post Samaliya, Tehsil
Sagwara, District Udaipur (Raj.).
2. Nitin Kumar Vyas S/o Lalit Chandra Vyas, Aged About 44
Years, R/o Village And Post Papardi Badi, Tehsil Sagwara,
District Dungarpur, Rajasthan.
3. Arun Kumar Dave S/o Jagdish Chandra Dave, Aged
About 45 Years, R/o 415, Post Anjana, Tehsil Arthuna,
District Banswara, Rajasthan.
4. Girish Chandra Bhatt S/o Ramesh Chandra Bhatt, Aged
About 47 Years, R/o Village And Post Nandor, Tehsil
Sagwara, District Dungarpur, Rajasthan (Applied For
Teacher Level 2-English).
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Education, Government Of Rajasthan,
Secretariat, Jaipur, Rajasthan.
2. The Director, Secondary Education, Bikaner, Rajasthan.
3. The Secretary, Rajasthan Employees Selection Board,
State Agriculture Management Premises, Durgapura,
Jaipur 302018.
----Respondents
Connected With
S.B. Civil Writ Petition No. 15261/2023
Sanjay Rathore
----Petitioner
Versus
State of Rajasthan & Ors.
----Respondents
S.B. Civil Writ Petition No. 15340/2023
Kuntesh Kumar Joshi
----Petitioner
Versus
State of Rajsthan
----Respondents
(Downloaded on 31/05/2024 at 08:41:56 PM)
[2024:RJ-JD:14390] (2of 14) [CW-14609/2023]
S.B. Civil Writ Petition No. 15439/2023
Dharmendra Kumar Vyas
----Petitioner
Versus
State of Rajasthan & Ors.
----Respondents
S.B. Civil Writ Petition No. 15829/2023
Vinod Kumar Choubisa
----Petitioner
Versus
State of Rajasthan & Ors.
----Respondents
S.B. Civil Writ Petition No. 17206/2023
Girish Kumar Joshi
----Petitioner
Versus
State of Rajasthan & Ors.
----Respondents
For Petitioner(s) : Mr. Raghunandan Sharma, on VC
Mr. Shyam Paliwal.
Mr. Pawan Singh Rathore.
Mr. Ramesh Kumar.
Mr. D.S. Pidiyar.
For Respondent(s) : Mr. Manish Patel, AAG a/w
Mr. Deepak Chandak.
Mr. Vinit Sanadhya assisted by
Mr. Priyanshu Gopa.
Mr. Manvendra K.S. Bhati a/w
Mr. Anurag Bhojwani.
HON'BLE MR. JUSTICE ARUN MONGA
Judgment 13/05/2024
1. Above titled six writ petitions, in sum and substance, are with the following prayers, which for the sake of convenience, are (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (3of 14) [CW-14609/2023] being taken from the lead case being S.B. Civil Writ Petition No.14609/2023:-
"i). the action of the respondents while not extending relaxation of 5 years in upper age limit to the petitioners under EWS category on the ground of belonging to TSP Area and depriving them to get appointment on the post of Teacher (Level-2) English may kindly be declared per se illegal, unjust, arbitrary, bad in the eye of law and further violative of Articles 14,16 & 21 of the Constitution of India and in clear violation of Rule 265(i)(a) of the Rajasthan Panchayati Raj Rules, 1996; and /or
ii). the respondents may kindly be directed to grant age relaxation of 5 years to the petitioners in the upper age limit under the EWS category for recruitment on the post of Teacher (Level-2) English and if petitioners come in merit, they be offered appointment on the post of Teacher (Level-2) English under the EWS category of TSP area, with all consequential benefits; and / or
iii). the respondents may kindly be directed to include the name of the petitioners in the final result dated 15.09.2023 (Annex.10) as per their merit and offer appointment to the petitioners on the post of Teacher (Level-2) English and allot the district as per their proper merit."
2. Briefly speaking, facts of the case as pleaded are as under:
2.1. Intitally, an advertisement for recruitment on the post of Upper Primary School Teacher (General / Special Education) (Level-2, Class 6 to 8) Direct Recruitment-2021 was issued, but was later cancelled. Thereafter, vide advertisement dated 16.12.2022 again recruitment process was started for various subjects including English, in which maximum age criteria was fixed as 40 years. However, relaxation of 3 years in upper age was extended for not carrying out of recruitment in past years.
Likewise, age relaxation of 5 years was given to the Male candidates of EWS/OBC/SC/ST and Sahariya category. The (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (4of 14) [CW-14609/2023] petitioners, who belong to EWS category of TSP Area, claim that they are also entitled for grant of age relaxation of 5 years. 2.2. The petitioners appeared in main examination. They were declared successful on 09.06.2023 for document verification. In the result, the cut-off marks for General category were declared as 124.1258, whereas the petitioners secured more marks than the said cut-off. On the apprehension that they would not be provided relaxation of 5 years age, they also sent a legal notice to the respondents on 01.09.2023 and requested to consider their candidature sympathetically for extending the age relaxation to them. But no heed was paid to the said legal notice. Hence, this writ petition.
3. Defence taken in the reply is as below:
3.1. Petitioners belonging to Other Backward Class / Economically Weaker Section, are not eligible to compete in the unreserved category after having availed age relaxation, which benefit is otherwise meant for their own reserved special category.
3.2. As per the Circular dated 24.06.2018, candidates belonging SC/ST/OBC, who have obtained concession of reservation under such category are not eligible for being migrated to the unreserved vacancies. The same proposition would apply when it comes to competing against seats of unreserved category. Any candidate belonging to OBC/EWS category in TSP area has to compete against the posts of unreserved category and such candidate can be considered to be eligible for posts of unreserved category without any age relaxation though with concession of fee.(Downloaded on 31/05/2024 at 08:41:56 PM)
[2024:RJ-JD:14390] (5of 14) [CW-14609/2023] 3.3. It is an admitted case here that the petitioners were over- age on the relevant dates and are claiming relaxation in age for eligibility. The advertisement mentions about the circular dated 26.07.2017 and relaxation in age, which though otherwise available to OBC/EWS category candidates, is not available in the instant case as the candidates are seeking appointment against unreserved posts. Hence, petitions deserve to be dismissed.
4. In the aforesaid backdrop, I have heard the rival contentions and have perused the record of the respective case files in all the petitions.
5. Learned counsels for the petitioners would argue that the action of the respondents in not granting age relaxation of 5 years to the petitioners is in clear violation of Rule 265(1)(a) of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996'). Rule 265 of the Rules of 1996 is reproduced as under :-
"Rule 265. Age - A candidate for direct recruitment must have attained the age of eighteen years and must not have attained the age of [forty years] on the first day of January following the last date fixed for receipt of applications :
Provided that :-
(i) the upper age limit mentioned above shall be relaxed by,-
(a) 5 years in the case of male candidate belonging to Scheduled Caste, Scheduled Tribe, backward Classes, More Backward Classes and Economically Weaker sections;
(b) 5 years in the case of women candidates belonging to General Category; and
(c) 10 years in the case of woman candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, More Backward Classes and Economically Weaker Sections.]
(ii) The upper age limit for ex-servicemen shall be fifty years,
(iii) The upper age limit for persons already working as Secretaries of Panchayats shall be relaxable upto the period of service rendered as Panchayat Secretary subject to a maximum limit of three years,
(iv) There shall be no age limit in the case of widows and divorced women, (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (6of 14) [CW-14609/2023] Explanation- In the case of widow, she will have to furnish a certificate of death of her husband from the competent authority and in the case of a divorcee, she will have to furnish the proof of divorce.
...... ...... ...... ...... ...... ...... ...... ...... ...... ......" It was contended that a perusal of the above provision contained in Rule 265(1)(a) of the Rules of 1996 would show that the petitioners are entitled for grant of age relaxation of upper age limit because they belong to EWS category.
6. Learned counsel for the petitioners also submitted that action of the respondents in not extending relaxation of 5 years in upper age limit to the petitioners under the EWS category on the ground of belonging TSP area and depriving them of opportunity to get appointment on the post of Teacher (Level-2) (English), is also violative to Articles 14, 16 & 21 of the Constitution of India. 6.1. Furthermore, learned counsel for the petitioners pointed out that the petitioners appeared in main examination and were declared successful. The cut-off marks for General category were 124.1258, whereas the petitioners have secured more marks than the said cut-off, but the respondents have not consider their candidature. Thereafter, the petitioners requested the respondents to consider their candidature sympathetically by extending the age relaxation to the petitioners.
6.2. Learned counsel for the petitioners submitted that in identical cases, the same controversy has already been decided by this Court in Kishore Kumar Patidar vs. State of Rajasthan & Ors. (SBCWP No.14048/2017), decided on 05.12.2017, which was allowed following the judgments rendered in Balram Suthar vs. (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (7of 14) [CW-14609/2023] State of Rajasthan & Ors. (SBCWP No. 14367/2017), decided on 01.12.2017 and Shivlal Labana vs. State of Rajasthan & Anr. (SBCWP No.3019/2015), decided on 14.06.2016. Therefore the petitioners are entitled for grant of age relaxation under the EWS category.
7. Per contra, learned counsel for the respondents urged that so far as candidates belonging to OBC & EWS category in TSP area are concerned, there is no reservation for these categories in the TSP area. Such candidates have to compete against the posts falling in unreserved category. Since the candidates belonging to OBC & EWS category do not take any benefit of reservation in TSP area and have to compete against the post meant for unreserved category in the TSP area, they are not entitled to any sort of age relaxation.
7.1. Furthermore, learned counsel for the respondents submitted that the petitioners were over-age on the relevant dates. For being eligible, they are now claiming relaxation in age, which is not permissible.
7.2 Furthermore, learned counsel for the respondents submitted that the core issue involved in the instant matter is as to whether a candidate belonging to OBC / EWS category having taken benefit of reservation under OBC / EWS category can be permitted to be considered against unreserved category seats in TSP and claim any age relaxation except that of fees? This issue is no more res integra. The same has been adjudicated upon by Hon'ble Apex Court in the case of Deepa E.V. v. Union of India, reported in (2017) 12 SCC 680. Subsequently also, following the case of Deepa E.V. (supra), State of Rajasthan issued a circular dated (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (8of 14) [CW-14609/2023] 26.07.2017 (Annex.R/1/2), wherein, it was clearly stated that the candidates who have availed the concession of the reserved category cannot be migrated to the unreserved category. 7.3. Learned Additional Advocate General also placed reliance on the judgments in Rahul Lohar vs. State of Rajasthan & Ors. :
SBCWP No.15501/2023, decided on 01/12/2023, Samarath Mal Kumhar & Ors. vs. State of Rajasthan & Ors. : SBCWP No.12859/2018, decided on 20.09.2022, Hitesh Kumar Sharma vs. State of Rajasthan & Ors. : SBCWP No.441/2019, decided on 11.04.2019.
7.4. Learned counsel for the respondent-Board placed reliance on the judgments in Malik Mazhar Sultan & Anr. vs. U.P. Public Service Commission & Ors. : 2006(9) SCC 507, Alsa Ram Meghwal vs. RPSC & Ors. : 2016(4) RLW 3106 (Raj.), Maharashtra Public Service Commission vs. Sunil Santosh Pawar & Ors. : Writ Petition Nos. 5858 & 4530 of 2015, decided on 13.12.2018, Dhuleshwar Ghogra vs. State of Rajasthan & Ors. :
SBCWP No.16192/2022, decided on 19.05.2023.
8. I shall now proceeds to render my opinion by recording reasons and discussion thereof in the succeeding paragraphs of the instant order.
9. First and foremost, pertinent it is note that in the matters of recruitment eligibility criteria and merit are two distinctly different parameters and operate in their respective field. There are certain relaxations given to Special category of candidate in both these fields i.e. eligibility as well as merit and suitability.
10. The question arises whether a Special category (reserved) candidate having once taken the advantage of age relaxation both (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (9of 14) [CW-14609/2023] in the eligibility as well as in the merit can turn around to seek benefit of competing with the General category?
11. The answer to the question necessarily has to be in negative. Let us see how.
12. As regards the reservation of EWS candidate in the General category, the same is governed by Rajasthan Various Service (Amendment) Rules, 2019 ('Rules of 2019') framed under Article 309 of the Constitution of India and notified by the Department of Personnel, Government of Rajasthan vide Notification dated 19.02.2019 (Annex.-RR/6 in CWP No.14609/2023). The relevant part of the same is reproduced herein-below :-
"Reservation of vacancies for Economically Weaker Sections:-
Reservation of vacancies for Economically Weaker Sections shall be 10% in direct recruitment in addition to the existing reservation. In the event of non-availability of eligible and suitable candidate amongst Economically Weaker Sections in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure.
Explanation : For the purpose of this rule 'Economically Weaker Sections' shall be the persons who are bonafide resident of Rajasthan and not covered under the existing scheme of reservations for the Scheduled Castes, the Scheduled Tribes, the Backward Classes, the More Backward Classes and whose family has gross annual income below rupees 8.00 lakh. Family for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. The income shall include income from all sources i.e. salary, agriculture, business, profession etc. and it will be income for the financial year prior to the year of application. Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as, 'Economically Weaker Sections', irrespective of the family income :-
(i) 5 acres of Agriculture Land and above;
(ii) Residential flat of 1000 sq.ft. and above;
(iii) Residential plot of 100 sq.yards and above in notified municipalities; or
(iv) Residential plot of 200 sq.yards and above in areas other than the notified municipalities."
13. A perusal of the above leaves no manner of doubt that the State Government has notified that there shall be 10% reservation in direct recruitment for the candidates belonging to Economically (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (10of 14) [CW-14609/2023] Weaker Section ('EWS'), who are bonafide resident of Rajasthan and not covered under the existing scheme of reservation meant for SC/ST/BC/MBC, whose family has got annual income below Rs.8 lacs. Thus, the horizontal reservation of 10% has been envisaged even in the General category provided the income criteria is met by a candidate.
14. Now, in this context reference may also be had to the advertisement dated 16.12.2022, vide which 27000 posts for Teachers have been advertised, for which selection process was initiated and petitioners also participated. The petitioners belong to EWS category. Clause (3) of the advertisement contained a special sub-clause under the heading of special information, whereas Clause (1) thereof clearly state that reservation shall be provided to SC/ST/OBC/MBC & EWS candidate as per the applicable Rules. The aforesaid clause read with the notification dated 19.02.2019 thus leads to inevitable conclusion that EWS candidates have been given their due share of reservation under the aforesaid Rules of 2019.
15. Adverting now to the age relaxation to be accorded to the EWS candidate. Clause (8) of the advertisement states that the upper age limit for candidate applying in the unreserved category i.e. General category is 40 years. However, all the Male candidates belonging to Rajasthan in the category of BC/OBC/MBC/SC/ST & EWS shall be entitled to age relaxation of five years.
16. In this context, it is commonsense that 40 years age of a candidate belonging to General category shall be considered equivalent to 40+5 years for those, who are seeking to apply in (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (11of 14) [CW-14609/2023] any of the special categories i.e. SC/ST/BC/OBC/EWS. Reference may be had to a judgment dated 11.10.2022 passed by Coordinate Bench in CWP No.13347/2017. The relevant extract thereof is reproduced herein-below :-
"It is admitted that the upper age limit prescribed for the ex- servicemen was 50 years in terms of clause 8(8) of the advertisement. The clarification appended to clause 8 specifically provided that the recruitment process for the post of Librarian Grade-III had not been conducted for the preceding three years and therefore a relaxation of three years of age would be granted to all the applicants in addition to the age limit already prescribed. Therefore, the most natural interpretation from a co-joint reading of clause 8(8) of the advertisement and the clarification to clause 8 would be that the age limit for the ex-servicemen category would be 50 + 3=53 years. The petitioner admittedly being 51 years and 6 months of age on 01.01.2017, was entitled to the relaxation in age.
Accordingly, the present writ petition deserves to be and is hereby allowed. As by virtue of the interim order dated 14.10.2017, a seat in the category of ex-servicemen has already been directed to be kept vacant, it is hereby directed that the petitioner, if otherwise found eligible, be accorded appointment on the said post within a period of one month from the date of receipt of copy of the present order. It is made clear that the petitioner would not be entitled to monetary benefits but would be entitled to notional benefits from the date the person junior in merit to him had been accorded appointment."
17. I am in respectful l agreementwith the view taken herein- above and see no reason why the petitioners be not accorded the benefit thereof. Accordingly, it is so ordered. The respondents are directed to accord the benefit of five years of age relaxation to the petitioners, who belong to the EWS category subject to the verification of their credentials as per Notification dated 19.02.2019.
18. Adverting now to the other aspect of the matter i.e. whether the petitioners can claim benefit of having got more marks than the last candidate selected in the General category and, therefore, claim that they be issued appointment letter in the (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (12of 14) [CW-14609/2023] General category at par with a candidate, who did not belong to the EWS?
19. The answer to this question has to be necessarily in negative.
20. Apples must compete with the apples and so should the oranges with oranges and two shall not be intermixed. Otherwise, that will result in the fallacious applicability of Article 14 of the Constitution of India. Equals must compete with equals and not the unequal.
21. In the present case, on the ground of being EWS category candidates, the petitioners sought the age relaxation in the General category, which is a horizontal reservation. Therefore, having got the said age relaxation on the ground of being EWS category candidates, they cannot seek double advantage of crossing over from the EWS category to the General category merely because, as claimed, they have scored more marks than the general category candidates as that would be akin to mixing of apples with the oranges.
22. In this context, reference may be had to a circular dated 26.07.2017 (Annex.R/1/2), which is reproduced herein-below :-
"Circular Subject - Treatment to be given to the candidates belonging to the SC/ST/BC who are selected against unreserved category vacancies on the basis of their merit.
In supersession of this department's circular even number dated 04.03.2014 on the above-mentioned subject, the matter has been examined in consultation with the Law Department in the light of judgment passed by the Hon'ble Supreme Court in Civil Appeal No.3609 of 2012 : Deepa E.V. Vs. Union of India & Ors., dated 06.04.2017, following instructions are hereby issued for the guidance of all Appointing Authorities :-
(a) If a candidate belonging to SC/ST/BC has not availed of any of the special concessions such as in (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (13of 14) [CW-14609/2023] age-limit, marks, physical fitness etc. in the recruitment process, which are available to the candidates belonging to these categories, except the concession of fees, and he secures more marks than the marks obtained by the last UR category candidate who is selected, such a candidate belonging to the SC/ST/BC shall be counted against the UR category vacancies and not the vacancies reserved for the SC/ST/BC, as the case may be.
(b) If any SC/ST candidate gets selected against the UR category vacancies on the basis of his merit without availing of any of the special concessions which are available to the candidates belonging to those categories, except the concession of fees, such a SC/ST candidate will be treated as a SC/ST candidate, as the case may be, for all further services matters, including further promotions, and all the benefits which are admissible to the other SC/ST persons under the various service rules/ government instructions shall be admissible to them.
(c) The SC/ST/BC category candidates who get selected against UR category vacancies on the basis of their merit without availing of any of the special concessions which are available to the candidates belonging to these categories, except the concession of fees, will not be counted against the posts reserved for these categories when it comes to the question of determining the total number of posts occupied by the candidates of these categories in the particular post / cadre.
All the Appointing Authorities are requested to ensure compliance of the above-mentioned instructions. Cases disposed of before above instructions shall not be re-opened."
23. The aforesaid circular has been issued in tune with the ratio laid down by the Supreme Court in Deepa EV Vs. Union of India, reported in (2017) 12 SCC 680. The applicability of the said circular is not in dispute and neither is the same under challenge. The petitioners cannot thus be allowed to switch over to the category of non-EWS General category.
24. In the parting, I may hasten to add that, had it been the case of the petitioners having merely taken the concession of fee, which falls under the exception of the relaxation they could have (Downloaded on 31/05/2024 at 08:41:56 PM) [2024:RJ-JD:14390] (14of 14) [CW-14609/2023] claimed the benefit of competing with non-EWS General category candidates.
25. However, in the case in hand, they have taken a special relaxation of age and, therefore, they must necessarily compete with the candidates, who like them have also taken the age relaxation in the EWS category.
26. The writ petition is accordingly allowed to the extent of according the benefit of age relaxation to the petitioners. Further, the respondents are directed to verify the petitioners' merit in accordance with their marks obtained in the category of EWS candidates and, in case, any candidate/s in the said category having lesser marks than the petitioners, have been selected, there is no reason why the petitioners should also not be given the benefit in EWS category for their performance.
27. Necessary exercise to determine the merit of the petitioners after giving them the relaxation of the age benefit vis-à-vis the other candidate/s in the EWS category who secured lesser marks than the petitioners but have been selected/appointed and issuing appropriate consequential orders be carried out within a period of two months from today.
28. With these observations and directions, the writ petitions are disposed of.
29. No order as to costs.
(ARUN MONGA),J Rmathur/-
Whether fit for reporting : Yes / No (Downloaded on 31/05/2024 at 08:41:56 PM) Powered by TCPDF (www.tcpdf.org)