Rajasthan High Court - Jaipur
Devnarayan Gurjar S/O Shri Kajod Mal ... vs State Of Rajasthan on 15 March, 2019
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 4502/2019
Devnarayan Gurjar S/o Shri Kajod Mal Gurjar, Aged About 22
Years, R/o Village Sendariya Khurd, Post Dahlod, Tehsil Niwai,
Dist. Tonk, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principle Secretary
Department Of Local Self Government, Government
Secretariat, Jaipur.
2. Director, Department Of Local Bodies, G-3 Raj Mahal
Residency, C-Scheme, Jaipur.
3. Rajasthan Municipalities (Administrative And Technical)
And (Subordinate And Minsterial Services), Service
Selection Commission, G-3 Raj Mahal Residency, C-
Scheme, Jaipur.
4. Surgyan (Roll No. 41455160481), Through Director,
Department Of Local Bodies G-3 Raj Mahal Residency, C-
Scheme, Jaipur.
----Respondents
For Petitioner(s) : Mr. Himanshu Jain
HON'BLE MR. JUSTICE ALOK SHARMA
Order
15/03/2019
Pursuant to the advertisement dated 30.12.2015, the
petitioner applied in the then extant SBC category for the post of
Fireman. In the written examination, to which the petitioner was
admitted on his application, he was successful. Then he was
required to participate in the Physical Standard Test for
(Downloaded on 29/06/2019 at 10:57:11 PM)
(2 of 7) [CW-4502/2019]
measurement of his height and chest, as required under the
operative Rajasthan Municipalities (Administrative & Technical)
Service Rules, 1963 and Municipalities Subordinate and Ministerial
Service Rules, 1963 (hereafter 'the Rules of 1963'). At the said
test, the petitioner was found not fulfilling the requisite height
and chest parameters and therefore, rejected. Aggrieved, the
petitioner approached this Court in SBCWP No. 18233/2016. Vide
order dated 18.4.2017, this Court directed that petitioner's
physical measurement on height and chest be done by the Medical
Board constituted by the Superintendent of AIIMS, Jodhpur. On
the petitioner being medically so examined and measurement
of his height and chest by the Medical Board being taken, he was
found to have the height and chest normal at 81 Cms. and when
expanded at 89 Cms, as required under the Rules of 1963. The
petitioner's case thereupon came to be considered afresh in the
light of the report of the Medical Board constituted by AIIMS
Jodhpur that the petitioner's height and chest parameters were as
required by the Rules of 1963.
(Downloaded on 29/06/2019 at 10:57:11 PM)
(3 of 7) [CW-4502/2019]
However, in the meantime, the provision for SBC
reservation to the extent of 5% quota notified by the State
Government was declared to be unconstitutional by the order of
this Court in the case of Cap. Gurvinder Singh & Ors. Versus State
of Rajasthan & Ors. (D.B. Civil Writ Petition No. 1545/2016;
decided on 9.12.2016) and other connected matters. SBC quota
therefore was quashed and set-aside. The matter was taken in
appeal before the Apex Court against the judgment of this Court
in the case of Cap. Gurvinder Singh & Ors. Versus State of
Rajasthan & Ors. (supra). Vide order dated 9.5.2017, the Apex
Court only saved the appointments thus far made in the 5% quota
of SBCs, which had been quashed by the High Court in the case
referred to above. In the circumstances the petitioner has not
been appointed as Fireman. Even in the OBC category in which he
was considered as an SBC category candidate had been rendered
non-existent. That SBC quota had been held to be unconstitutional
by this Court and its judgment upheld by the Apex Court. Hence
the petitioner's candidature as SBC candidate was not plausible.
Hence this petition.
(Downloaded on 29/06/2019 at 10:57:11 PM)
(4 of 7) [CW-4502/2019]
Mr. Himanshu Jain appearing for the petitioner
submitted that indeed the petitioner has not been appointed in SBC quota to the post of Fireman pursuant to the advertisement dated 30.12.2015 despite passing the written examination and his height and chest requirements being found as requisite under the Rules of 1963 by the AIIMS Medical Board on the ground that when he was so considered, the SBC quota had been quashed and set-aside by this Court in the case of Cap. Gurvinder Singh & Ors. Versus State of Rajasthan & Ors. (supra). He however submitted that the petitioner's non appointment to the post of Fireman in the first instance when the SBC quota was operational and when the petitioner was meritorious at the written exam was only for the accidental reason of the petitioner then having been wrongly failed the Physical Standard Test on his height and chest measurements on which he was erroneously found to be lacking under the Rules of 1963. That error now stands rectified by the report of AIIMS Medical Board. It has been submitted that in the circumstances the case of the petitioner even though not appointed as fireman prior to quashing of SBC quota in the circumstances cannot be (Downloaded on 29/06/2019 at 10:57:11 PM) (5 of 7) [CW-4502/2019] distinguished from those appointed in SBC quota prior to it being quashed.
Heard. Considered.
I am afraid, there is no legal foundation in the submissions of Mr. Himanshu Jain. SBC quota of 5% carved out by the State of Rajasthan in which the petitioner applied was held at the relevant time to be unconstitutional by this Court in the case of Cap. Gurvinder Singh & Ors. Versus State of Rajasthan & Ors. (supra) and the said judgment upheld in appeal before the Apex Court. No fresh appointment at all in these circumstances could be subsequently made on the post of fireman in the quota of SBC pursuant to the advertisement dated 30.12.2015. The petitioner was indeed at the relevant time wrongly excluded from appointment as fireman in the SBC quota on erroneously being failed the physical standard test. And by the time, the error in failing the petitioner in the physical standard test was rectified with the court's intervention, the SBC quota had been altogether set-aside by this Court in the case of Cap. Gurvinder Singh & Ors Versus State of Rajasthan & Ors. even though appointments (Downloaded on 29/06/2019 at 10:57:11 PM) (6 of 7) [CW-4502/2019] already made to the post of Fireman. in SBC quota were saved by the order of the Apex Court passed on 9.5.2017. No fresh appointment in the said quota could be subsequently made and hence there is no scope to consider the petitioner's appointment on the post of Fireman in the SBC quota at this stage. The petitioner may have a wrangling sense of injustice in his mind but that cannot be a ground for this Court to direct the petitioner's appointment in the SBC quota on the post of Fireman. Whatever be the circumstances of the petitioner's non appointment and even if it was for reasons of the respondent's error in his physical standard test on his height and chest parameters, the fact remains that the petitioner was not appointed at the relevant time in the SBC quota prior to the said quota having been quashed and set-aside by this Court in the case of Cap. Gurvinder Singh & Ors. Versus State of Rajasthan & Ors. (supra). The direction of the Apex Court in the appeal against the judgment of this Court in the case of Cap. Gurvinder Singh & Ors. Versus State of Rajasthan & Ors. vide its order dated 9.5.2017 to save appointments already made in SBC quota prior to said quota being set-aside in the case (Downloaded on 29/06/2019 at 10:57:11 PM) (7 of 7) [CW-4502/2019] of Cap. Gurvinder Singh & Ors. Versus State of Rajasthan & Ors. (supra) cannot now be stretched on any conceivable ground to direct the petitioner's appointment as Fireman in a now non existing SBC quota.
There is no force in the petition. It is accordingly dismissed.
(ALOK SHARMA),J DK (Downloaded on 29/06/2019 at 10:57:11 PM) Powered by TCPDF (www.tcpdf.org)