Madhya Pradesh High Court
Smt. Rajshri Tiwari vs State Of Madhya Pradesh And Ors. on 6 October, 2005
Equivalent citations: 2006(1)MPHT469
Bench: Chief Justice, Deepak Verma
ORDER A.K. Patnaik, C.J.
Janpad Panchayat, Majholi, District Sidhi, advertised certain posts of Samvida Shala Shikshak (for short referred to as 'Teacher') in various schools. Total number of posts advertised were 28, out of which 11 posts were reserved for women candidates. These 11 posts of reserved category were to be distributed among the candidates of Scheduled Caste, Scheduled Tribe and Other Backward Classes and also of the General category. For women category, only two posts were allotted-- one post of teacher in Arts faculty and another post of teacher in Science faculty. The petitioner applied for the post of Teacher in the Arts faculty against the post meant for women general category. The respondents No. 5 and 6 also applied for their appointment as Teachers against the post reserved for Other Backward Classes. After selection, a select list was published and the petitioner was shown as having been selected for the post of Arts Teacher in general category. Accordingly, an order of appointment was issued by the Chief Executive Officer, Janpad Panchayat, Majholi, District Sidhi (M.P.), and the petitioner was posted in Middle School, Chuwahi, Centre Pand, District Sidhi. The petitioner was thereafter called upon to execute an agreement with the Janpad Panchayat, Majholi and she executed such an agreement. Thereafter, she joined as a Teacher of Arts and started working. After she had put in work for one month, the Chief Executive Officer, Janpad Panchayat, Majholi, District Sidhi issued an order on 17-9-2001 stating therein that selection of the petitioner has been wrongly done and therefore her appointment was cancelled.
2. After receiving the said order dated 17-9-2001, the petitioner filed an appeal before the Collector, Sidhi, stating therein that she was not given an opportunity of hearing and that she was rightly selected and her appointment could not be cancelled. The appeal was entertained, show-cause notice was issued to the Chief Executive Officer, Janpad Panchayat, Majholi, District Sidhi and the petitioner was permitted to continue on the post of Arts Teacher. But, thereafter the Collector, Sidhi, after considering the reply of the respondents and after hearing the parties, dismissed the appeal vide order dated 16-12-2002. Against the order dated 16-12-2002 passed by the Collector, Sidhi, the petitioner filed a revision petition before the Commissioner, Rewa Division, Rewa. The Commissioner Rewa Division, passed and interim order on 21-1-2003 by virtue of which, the petitioner continued to work on the post, but finally the Commissioner Rewa Division, dismissed the revision by order dated 27-9-2004.
3. Aggrieved by the said order dated 27-9-2004, the petitioner has filed this writ petition under Article 226 of the Constitution of India praying inter alia to quash the order dated 27-9-2004 passed by the Commissioner, Rewa Division. The petitioner has also prayed to declare Sub-clause (ii) of Sub-rule (8) of Rule 5 of the Madhya Pradesh Panchayat Samvida Shala Shikshak (Appointment and Condition of Service) Rules, 2001 (for short 'Rules of 2001') as ultra-vires.
4. Sub-clause (ii) of Sub-rule (8) of Rule 5 of the Rules of 2001, is quoted herein below :--
A select list, on the basis of above assessment for each category of candidates in order of their merit shall be prepared and in such list the names of the candidates mentioned in Clause (b) of Sub-rule (4) of Rule 5 shall be shown separately and it shall also include a waiting list containing names equivalent to 20% of the vacancies advertised. The select list shall remain valid for a period of nine months. A unified selection list shall also be prepared in which the name of the candidates having secured highest marks is shown at the top and other names are shown in descending order limit to the number of vacancies for unreserved category. If there appears to be any candidate of reserved category in the list of unreserved category on the basis of merit, his appointment shall not be deemed to be against the vacancy of reserved category. Thereafter, the names of candidates of reserved category shall be shown in order of their merit limited to the number of vacancies reserved for each of such category.
5. Mr. K.K. Trivedi, learned Counsel appearing for the petitioner, submits that the impugned order passed by the Commissioner, Rewa Division rejecting the revision of the petitioner is based on the provisions of Sub-clause (ii) of Sub-rule (8) of Rule 5 of the Rules of 2001, which provides that if there appears to be any candidate for reserved category in the list of unreserved category on the basis of merit, his appointment shall not be deemed to be against the vacancy of reserved category. He submitted that the respondent No. 6 had applied for the post meant for Other Backward Classes and even though the said respondent No. 6 had been placed above the petitioner in merit on the basis of selection conducted by the respondent No. 4, the said respondent No. 6 should have been appointed and adjusted against a post reserved for OBC. But the Commissioner Rewa Division, has taken a view on the basis of the aforesaid provisions in Sub-clause (ii) of Sub-rule (8) of Rule 5 of the Rules of 2001 that respondent No. 6 is to be adjusted and appointed against the post meant for general category and the appointment of the petitioner, who had applied for the post of teacher of General category, has been cancelled. Mr. Trivedi relying on the decisions of the Supreme Court in Ajit Singh Januja and Ors. v. Harbhajan Singh and Anr. , Dr. Preeti Srivastava v. State of M.P. and Division Bench decision of this Court in MayankJain v. State of M.P. and Ors., 2003(4) M.P.H.T. 275 (DB): [2003(4) MPLJ 497], submitted that once the Other Backward Classes are able to secure appointment, reservation will not be required. He vehemently argued that in the present case, since the respondent No. 6 will be able to secure appointment in the quota reserved for OBC, to treat her appointment as an appointment in the general category so as to make room for appointment of one more candidate, namely respondent No. 5 in the quota reserved for OBC would be to allow more reservation in service than what is necessary considering the proportion of OBC population in the total population of the State of Madhya Pradesh.
6. Mr. Sanjay K. Agrawal, learned Government Advocate appearing for respondents 1 to 3, on the other hand, cited the observation of the Supreme Court in Indra Sawhney v. Union of India that if persons belonging to Scheduled Caste Category, got selected in open competition on the basis of their own merit, they will not be counted against the quota reserved for Scheduled Caste category and will be considered as open competition candidates. He also relied upon the decision of the Supreme Court in R.K. Sabharwal and Ors. v. State of Punjab and Ors. to the effect that the fact that considerable number of OBCs have been appointed against the general seats in the State services may be relevant for the State to review the question of reservation for the said class, but so long as the instructions/Rules providing certain percentage of reservation for the OBC were in force, the same will have to be followed. Mr. Agrawal submits that the Rules of 2001 are clear that a candidate belonging to a reserved category who is selected on the basis of the merit and placed in the select list, has to be adjusted against the vacancy meant for general category candidate and not against the vacancy reserved for the category.
7. We have considered the aforesaid submissions of Mr. K.K. Trivedi and Mr. Sanjay K. Agrawal and we find that in Article 16(4) of the Constitution of India, a provision has been made enabling the State to make a provision for reservation of appointment or posts in favour of any backward class which is not adequately represented in the services under the State. In Indra Sawhney (supra), the Supreme Court interpreting Article 16(4) of the Constitution held that if some members belonged to Scheduled Caste are selected in open competition on the basis of their own merit, they will count not against the quota reserved for Scheduled Caste, but they will be treated as open competition candidates. This view has also been taken by the Supreme Court in the case of R.K. Sabharwal (supra). Para 4 of the judgment of the Supreme Court in R.K. Sabharwal's case (supra), in which this view reiterated is quoted herein below:--
When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number can not be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services under the State. If is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made, is not adequately represented in the State Services. While doing so, the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage can not be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above, the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the General Category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned Counsel and rejected the same.
It is clear from what has been held by the Supreme Court in the case of R.K. Sabharwal (supra) that reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts, their number can not be added and taken into consideration for working out the percentage of reservation. It has also been held by the Supreme Court in the case of R.K. Sabharwal (supra) that the fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class, but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative, the same have to be followed.
8. So far as the State of Madhya Pradesh is concerned, the reservation in public services are provided in the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vergon Ke Liye Arakshan) Adhiniyam, 1994 (for short 'Adhiniyam, 1994). Section 4 of the said Adhiniyam, 1994 is titled "Fixation of percentage for reservation of posts" and provides the manner in which post should be reserved for members of Scheduled Castes or Scheduled Tribes or Other Backward Classes. Sub-section (4) of Section 4 of the said Adhiniyam, 1994, which is relevant for the purposes of this case, is quoted hereinbelow:--
Section 4. Fixation of percentage for reservation of posts.--
*** *** *** *** *** *** *** *** *** *** If a person belonging to any of the categories mentioned in subsection (2) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under Sub-section (2).
The aforesaid Sub-section (4) of Section 4 of the Adhiniyam, 1994 makes it clear that if a person belonging to any reserved category mentioned in Sub-section (2) (which includes the category 'Other Backward Classes'), gets selected on the basis of merit in an open competition with general category, he shall not be adjusted against the vacancies reserved for such category under Sub-section (2). In view of the said mandate of the legislature in Sub-section (4) of Section 4 of the Adhiniyam, 1994, a provision has to be made in Sub-clause (ii) of Sub-rule (8) of Rule 5 of the Rules of 2001 to the effect that if there appears to be any candidate of reserved category in the list of unreserved category on the basis of merit, his appointment shall not be deemed to be against the vacancy of reserved category. The said provision in Sub-clause (ii) of Sub-rule (8) of Rule 5 of the Rules of 2001 is thus not only consistent with the provisions of Sub-section (4) of Section 4 of Adhiniyam, 1994, but also in consonance with the interpretation of Article 16(4) of the Constitution of India given by the Supreme Court in the aforesaid decision in Indra Sawhney (supra).
9. For the aforesaid reasons, we find no merit in the writ petition and accordingly dismiss the same. The interim order passed by this Court on 8-10-2004 is vacated. Even though we have dismissed this writ petition, it will be open for the authorities to consider the claim of the petitioner for continuance in any post meant for general category other the post to which respondent No. 6 is to be appointed.