Rajasthan High Court - Jodhpur
Yamini Yadav vs State Of Rajasthan (2023/Rjjd/008842) on 5 April, 2023
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2023/RJJD/008842]
HIGH COURT of JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 3592/2023
Yamini Yadav D/o Shri Inder Kumar Yadav, Aged About 28 Years,
Presently residing at 318, Saraswati Kunj, Sector 53, Golf Course
Road, Gurugram, District Gurugram, State Haryana, Pin 122002
(India).
----Petitioner
Versus
1. State of Rajasthan, through its Secretary, Higher
Education Department, Government of Rajasthan,
Secretariat, Jaipur.
2. Commissioner, College Education, Rajasthan, Jaipur.
3. Joint Director (HRD), College Education, Rajasthan,
Jaipur.
4. Rajasthan Public Service Commission, through its
Secretary, Ajmer.
----Respondents
For Petitioner(s) : Mr. Yash Pal Khileree
Mr. Nitin Gehlot
Mr. Jagdish Bhadu
For Respondent(s) : Mr. Manish Vyas, AAG with
Mr. Kailash Choudhary
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order 05/04/2023
1. The petitioner has preferred the present writ petition being aggrieved with the action of the respondents, particularly, respondent No.2-Commissioner of College Education, who has refused to give appointment to the petitioner, though after finding her meritorious and eligible, the Rajasthan Public Service Commission had recommended her name.
2. The facts narrated in a nutshell are that the petitioner had vied for the post of Assistant Professor (Economics) for one post out of (Downloaded on 06/04/2023 at 10:38:17 PM) [2023/RJJD/008842] (2 of 6) [CW-3592/2023] 47 which was kept reserved to Specially Abled Person-(L.D. catergory) in the advertisement dated 18.12.2020.
3. The petitioner submitted her application form as a PH candidate along with requisite statutory certificates in support of her being a person with Locomotor Disability.
4. The Rajasthan Public Service Commission finding the petitioner to be meritorious and eligible, called her for document verification and then, recommended her name for appointment.
5. It is asserted by the petitioner that the petitioner was the only successful candidate in her category, (Locomotor Disability) and pursuant to the recommendation made to the State Government, the respondent No.3 called all the persons mentioned in the list appended with the communication dated 14.11.2022, including the petitioner, whose name was mentioned at serial No.37.
6. It is the contention of the petitioner that the petitioner despite appearing in counseling was not provided posting though other candidates have been provided posting/appointment orders.
7. Being aggrieved of such action of the respondents, the petitioner has approached this Court.
8. Mr. Khileree, learned counsel for the petitioner argued that the respondents' stand that the petitioner who belongs to Haryana, is not entitled for benefit of reservation as a person with disability being a horizontal reservation is ex- facie illegal and untenable.
9. It was argued that aspect as to whether a person belongs to the State or other than the State of Rajasthan is relevant only in cases of caste based reservation. So far as other reservations which do not depend upon castes are concerned, a candidate (Downloaded on 06/04/2023 at 10:38:17 PM) [2023/RJJD/008842] (3 of 6) [CW-3592/2023] cannot be denied his right simply because he is from outside the State of Rajasthan.
10. Learned counsel navigated the Court through the relevant Rules (Rajasthan Rights of Persons With Disabilities Rules, 2018) so also the terms of advertisement and argued that there is nothing which restricts or denies the rights of a candidate belonging to State other than State of Rajasthan to claim benefit of reservation under the Rules of 2018.
11. Mr. Manish Vyas, learned Additional Advocate General on the other hand submitted that if the benefit of reservation under the Rules of 2018 is accorded to the petitioner, it will be against the interest of the person with disabilities of the State of Rajasthan. He added that as the reservation of PH category is also vertical reservation, the principles applicable to caste based reservation, will equally apply to the PH category reservation.
12. Heard learned counsel for the parties and perused the material available on record.
13. Indisputably, the petitioner has claimed reservation under the Rules of 2018. A perusal of the substantive provision contained in Rule 5 of the Rules of 2018, which reads thus:-
"5.Reservation of Vacancies- (1) In every establishment 4% of the vacancies of direct recruitment in the cadre shall be reserved for persons or class of persons with benchmark disabilities according to the section 34 of the Act. In the posts identified for each disability by the Government of India under section 33 and such reservation shall be treated as horizontal reservation and the vacancies for persons with benchmark disabilities shall be maintained as a separate class:
Provided that where the nomenclature of any post in the State Government is different from the post (Downloaded on 06/04/2023 at 10:38:17 PM) [2023/RJJD/008842] (4 of 6) [CW-3592/2023] in Government of Indian or nay post in the State Government does not exist in any department of the Government of India, the matter shall be referred to the Committee constituted under rule 6 fro identification of the equivalent post in the State Government. The Committee shall identify the equivalent post on the basis of nature of job and responsibility of each post.
(2) Reservation in posts identified for one or more categories,-
(a) If a post is identified suitable only for one category of disability, reservation in that post shall be given to persons with that disability only;
(b) Reservation of 4% shall not be reduced in such cases and total reservation in the post will be given to persons suffering from the disability for which it has been identified;
(c) If in case the post is identical suitable for two categories of disabilities, reservation shall be distributed between persons with those categories equally, as far as possible.
(3) Maintenance of Rosters,-
(a) All establishments shall maintain a separate 100 point roster register for determining/effecting reservation for the persons with benchmark disabilities.
(b) The register shall have cycle of 100 points and each cycle of 100 points shall be divided into four blocks, comprising the following points;
1st Block- Point No.1 to point No.25 2nd Block- Point No.26 to point No.50 3rd Block- Point No.51 to point No.75 4th Block- Point No.76 to point No.100 The above block shall be earmarked and reserved for persons with benchmark disabilities- one point for each of the three categories of benchmark disabilities mentioned in clauses (a), (b) and (c) and one point for categories of benchmark disabilities mentioned in clauses (d) and (e) of sub-section(1) of section 34.
(c) All the vacancies shall be entered in the relevant roster register which shall be maintained by the head of the establishment.
(d) After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start." (Downloaded on 06/04/2023 at 10:38:17 PM) [2023/RJJD/008842] (5 of 6) [CW-3592/2023]
14. A perusal of Rule 5 of the Rules of 2018 leaves no room for ambiguity that the reservation for PH category is a horizontal reservation and it has no nexus with the residence of a person.
15. The residence of a person is significant or relevant in the case of caste based reservation, because the Constitutional Provision and notification issued thereunder requires a person to be a resident of that State in order to claim caste based reservation. It is the backdrop of the Constitutional Provision so also in light of catena of decisions of Hon'ble the Supreme Court and this Court, that a person residing out of the State cannot claim caste based reservation in the State of Rajasthan. However, in absence of any such stipulation in the Constitution or under the Rules of 2018, the State cannot deny a candidate of a State other than the State of Rajasthan to claim benefit of reservation under the Rules of 2018.
16. Almost similar situation came up for consideration before a coordinate Bench of this Court in the case of Amar Kumari vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 7512/2022), where the issue was in relation to a candidate belonging to EWS - Economically Weaker Section and this Court has held that a female migrating to State of Rajasthan is entitled for reservation for consideration of her candidature under EWS category.
17. In the instant case also, the petitioner has been denied appointment solely on account of her being resident of Haryana.
18. According to this Court, the State's action is not only illegal and contrary to Rules of 2018 but also against the federal structure of the State and violation of Article 16(2) of the Constitution of India. The State's action amounts to denial of appointment on the basis of residence of a person, which has been (Downloaded on 06/04/2023 at 10:38:17 PM) [2023/RJJD/008842] (6 of 6) [CW-3592/2023] held to be illegal by Hon'ble the Supreme Court in catena of decision including the judgment dated 17.07.2001 rendered in the case of Ganga Ram Moolchandani vs. State of Rajasthan & ors. [Appeal (Civil) No. 6469 of 1998] (2001) 6 SCC 89.
19. As an upshot of the discussion foregoing, the present writ petition is allowed.
20. The respondent- State is directed to issue appointment order to the petitioner within a period of four weeks from today, if she is otherwise eligible.
21. The petitioner shall be entitled for notional benefits from the date of issuance of select list, namely, 01.12.2022.
22. The stay petition also stands disposed of.
(VINIT KUMAR MATHUR),J 140-Shahenshah/-
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