Rajasthan High Court - Jaipur
Meena Kumari vs State Of Rajasthan & Ors on 7 January, 2017
Author: Mn Bhandari
Bench: Mn Bhandari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
ORDER
1.SB Civil Writ Petition No.2201/2014
Meena Kumari versus State of Rajasthan & ors
2.SB Civil Writ Petition No. 2647/2014
Om Prakash Berwa versus State of Rajasthan & ors
3.SB Civil Writ Petition No. 3254/2014
Rajesh & ors versus State of Rajasthan & ors
Date of Order : 7th January, 2016
HON'BLE MR. JUSTICE MN BHANDARI
Mr Tanveer Ahmed - for petitioner/s
Mr JM Saxena, Additional Advocate General - for the State
BY THE COURT:
An advertisement was issued by the non-petitioners on 7.6.2013 to invite applications for the post of Ayurved Compounder Nurse Junior Grade. Initially, 756 posts were advertised, however, with the corrigendum dated 2.8.2013, it was made to 1000 by increasing 244 posts. The petitioners applied for the post in pursuance to the vacancies notified by the non-petitioners. It has now come to the notice of the petitioners that 343 posts of Scheduled Caste (SC) category are of backlog yet advertisement does not make a reference of it. In view of above, selection and appointment intend to be made by taking all the posts to be of current period without making provision for backlog vacancies is illegal.
It is also stated certain persons appointed on contract basis are accounted towards backlog vacancies meant for SC candidates. The backlog 2 vacancies could not be filled on contract basis, rather, it should have been notified and to be filled by regular mode. The non-petitioners failed to do so thus their action in not filling the backlog vacancies rather treating them to be current vacancies becomes illegal. The fact aforesaid came to the notice of the non-petitioners while they made assessment of the posts meant for different categories and then it was found that 343 previous vacancies for SC category exist thus to be considered as backlog vacancies. The aforesaid facts were taken in a note sheet but then it was not given effect by the non- petitioners in an illegal manner.
The State Government enacted the Rajasthan Rural Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service Rules, 2008 thus backlog vacancies could not have been considered under the Rules of 2008, rather, to be accounted under the Rules of 1966. In fact, prior to the Rules of 2008, bifurcation of posts in the rural area was not existing, rather, total cadre strength was reckoned based on the Rajasthan Ayurved, Unani, Homeopathy and Naturopathy Subordinate Service Rules, 1966. In the light of the aforesaid, non-petitioners may be directed to treat 343 posts to be of backlog of SC category and fill it accordingly from and amongst meritorious SC category candidates.
Learned counsel for petitioners further submits that the vacancies of SC category have not been filed since 1995 till the year 2010 other than filling up of few posts in the year 2002. The facts on record show that 32 posts of SC category candidates were filled out of 200 posts meant for them and, subsequently, through the selection conducted by the 3 Rajasthan Public Service Commission, 79 posts were filled from SC category candidates out of which 24 posts were of backlog vacancies.
The Government of Rajasthan, vide its letter dated 28.7.2011 confirmed to the National Scheduled Castes Commission that as on 31.8.2003, 568 posts of Nurse/ Compounder were vacant which includes 343 backlog vacancies of SC category candidates. Certain appointments were made on 14.12.2009, whereby 27 backlog vacancies were filled leaving 316 vacancies. The non-petitioners made appointment on contract basis against 100 backlog vacancies, thereby, total backlog vacancies of SC category candidates were reduced to 243. It is also stated that the State of Rajasthan issued a notification to amend the Rules wherein left out vacancies of reserve categories are allowed to be carried forward only for three recruitment years and after expiry of it, such vacancies shall be filled in accordance with normal procedure. In that regard, if no recruitment in a particular year took place, then cannot be counted towards three recruitment years specified in the notification dated 17.1.2013. The non-petitioners, while issuing the advertisement in question, failed to notify backlog vacancies of SC category thus selection and appointment are going to be made by ignoring the backlog vacancies of the SC category. A direction may accordingly be given not to fill backlog vacancies by treating it to be current vacancies rather to be allocated to the SC category by treating 316 vacancies of backlog. The writ petitions may accordingly be allowed with the direction aforesaid.
The writ petitions have been contested by the State 4 Government. It is submitted that in the advertisement dated 7.6.2013, 111 vacancies are shown for SC category out of total 726 posts of Compounder/ Nurse Junior Grade. The bifurcation of the vacant posts for different categories has been given in the advertisement. Vide the corrigendum dated 2.8.2013, 244 posts were added.
Learned counsel for non-petitioners submits that the note sheet referred by the petitioners shows 243 backlog vacancies in the year 2003 and based on the aforesaid note sheet only, claim has been made to notify 316 vacancies towards backlog for SC category. It is after reducing 27 posts filled in the year 2009 out of 343 posts. The note sheet aforesaid has no effect after the Rules of 2008. Prior to the year 2008, entire cadre of Compounder/ Nurse was governed by the rules of 1966. The Rules of 2008 made bifurcation as the posts existing in the rural areas. It obviously bifurcated the cadre strength of the posts of Compounder/ Nurse Junior Grade. The petitioners have made a reference about information received vide Annexure-5 to indicate that between the year 1995 to 2010 only few appointments were given to the SC candidates. In fact, information at Annexure-5 shows that appointments to the SC category candidates were made from time to time. It was 25 in the year 1997 followed by another 25 appointments in the year 1998. 32 appointments were given in the year 1999 against 200 vacancies and thereupon in the year 2009, 26 appointments were given under the Rules of 2008. 79 appointments to SC category candidates were thereupon given through selection conducted by the RPSC. If the figures given therein are considered, no backlog vacancies exist but then the petitioners are making use of a note sheet irrelevant to the issue as 5 it is not only of the year 2003 but subsequent developments have not been explained by the petitioners to make a claim. The writ petitions for it were filed much subsequent to the advertisement, whereas, the selections to the post of Compounder/ Nurse Junior Grade have already been made. In the facts and circumstances of the case, prayer is made to dismiss the writ petitions.
I have considered rival submissions of the parties and perused the record.
The advertisement for the post of Compounder/ Nurse Junior Grade was issued on 7.6.2013 followed by corrigendum dated 4.8.2013 to increase the posts. The grievance of the petitioners is about 343 vacancies of SC candidates. A reliance has been placed on the note sheet of the year 2003 wherein 343 backlog posts of SC category candidates have been indicated. The perusal of the note sheet reveals 568 vacancies and out of it, 343 backlog vacancies for SC category. The determination of category-wise vacancies has to be based on the post/ cadre and not on the vacancies. It is apart from the fact that determination of the vacancies made in the year 2003 would not be relevant for advertisement issued in the year 2013. It is more so when much water has been flown thereafter. The clear picture about it exist in the information sought and given to the petitioner vide letter dated 2.4.2013 at annexure-5. The bifurcation of the posts and appointment of SC category candidates from time to time has been given, which is quoted hereunder for ready reference -
6
वववव 1995 वव 2010 वव वववव-ववववव. वव वव
ववव ववववववववववव वव
नननननन ननननन ननननन ननननन ननननन
नननन नननननन ननननन
नननन नन ननन नननन
ननननन नननननननन
न ननन
15/07/1996 वववववववव वववववव
05/03/1997 1.5.96 व व ववव
152+6=158(ववववववव)वववव
वववववव वववव वववववव
35093 वववववव 15.7.96 ववव
158 25 10782 वववववव 5.3.97
31/08/1998 वववववववव वववववव
17/12/1998 2.8.97 व व ववव
146+5+4=155(ववववववव)वव
25/02/1999
ववववव व 26061 वववववव
155 25 31.8.98
19/03/2002 वववववववव वववववव
03/04/2002 24.4.99 व व ववव
200 32 (ववववववव वववववव वव
ववववववव वववव
03/06/09 183 26 वववववव वव ववव
14/12/2009 वववववववव वववववव
2.6.2009 ववव वववव वववव
369 79 वव ववववव
The perusal of the figures given therein shows that in different years, appointments to the SC category candidates have been given to the extent of 16% and, for it, the last appointment was given in the year 2009 wherein as against 369 posts, 79 SC candidates were given appointment. Therein, no backlog vacancies were shown for SC category. Same is the position when certain posts were filled in the earlier years. In the background aforesaid, case formulated by the petitioners is not made out as the petitioners were otherwise expected to get figures as on the date of the advertisement. The statement quoted above reveals that in the year 1997, 25 SC category candidates were given appointment followed by another 25 appointments vide order dated 31.8.1998. 32 appointments to SC category 7 candidates were given vide order dated 24.4.1999 and, lastly, 79 appointments in pursuance to the advertisement dated 2.6.2009. Those appointments were under the Rules of 1966. 26 appointments have been given in the year 2009 under the Rules of 2008. It would be necessary to clarify that prior to the Rules of 2008, entire cadre of Compounder/ Nurse Junior Grade was governed by the Rules of 1966. After the Rules of 2008, it is divided between rural and urban areas. It obviously bifurcated the cadre strength under the two rules referred above. The note sheet of the year 2003- 04 makes a reference of the vacancies under the Rules of 1966 and therein also, the facts and figures have not been given elaborately by giving details of the posts filled from time to time thus not relied by the non-petitioners.
The petitioners could not explain that when the posts were filled from time to time and have been indicated in Annexure-5, how the earlier note sheet can be relied. In the background aforesaid, I do not find that any backlog vacancies of SC category candidates exist so as to notify it separately while issuing advertisement dated 7.6.2013. The non-petitioners have given proper explanation in their reply and further referred to the order dated 28.8.2015 that no backlog vacancies exist. It was while deciding the representation made by the petitioners. In the light of the discussion made above, I do not find any merit in the writ petitions. Hence, they are dismissed.
(MN BHANDARI), J.
bnsharma All corrections made in judgment/ order have been incorporated in judgment/ order being emailed.
8(BN Sharma) PS-cum-JW