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Rajasthan High Court · body

2000 DIGILAW 915 (RAJ)

Kanaram Yadav v. R. P. S. C. and Another

2000-07-26

SHIV KUMAR SHARMA

body2000
Honble SHARMA, J.–The petitioners who belong to other Backward Class (for short OBC) seek to quash the Notification dated November 3, 1999 and November 12, 1999 whereby certain other castes were included in OBC. The petitioners further pray that the Rajasthan State and Subordinate Services Combined Competitive Examination 1999 (for short the Examination 1999) be conducted without taking into consideration the aforesaid Notifications and the castes mentioned in these Notifications be not treated as OBC for the purpose of the Examination 1999 and any event which took place after June 15, 1999 which was the last date for submitting the application forms for appearing in the Examination 1999, be directed to be ignored. (2). First as to the facts. Upon receiving requisition from the State Government for filling up determined and apportioned vacancies on various posts in different States and Subordinate Services, an advertisement came to be issued by the Rajasthan Public Service Commission (for short the RPSC) on May 10, 1999 inviting applications from eligible persons for participating in the combined competitive examination to be held in two stages i.e. Preliminary Examination and Main Examination. It was provided in the advertisement that the application forms should reach the office of RPSC on or before June 15, 1999 and any applications received thereafter shall not be entertained. It was also stated in the advertisement that in no circumstances any candidate would be permitted to make any alteration in the entries made by him in the form. Pursuant to the advertisement several thousands of candidates submitted application forms and admission cards were issued to them. On November 3, 1999 and November 12, 1999 two Notifications were issued by the State Government whereby several castes came to be notified as Backward Classes and were included in the existing list of Backward Classes. On November 28, 1999 the Preliminary qualifying examination was held by the RPSC in pursuance to the aforesaid advertisement dated May 10, 1999. Thereafter the RPSC notified in Daily News paper on December 1, 1999 that those castes who were included in OBC vide Notifications dated November 3, 1999 and November 12, 1999 shall be treated as OBC for the purposes of Examination 1999 and all those candidates belonging to such castes who are presently included in the General category should submit a certificate regarding their being members of OBC before December 31, 1999 for taking benefit of reservation. Various other castes were also included in the list of OBC by the State Government vide Notification dated January 1, 2000 and January 10, 2000 and made request to RPSC to treat those castes as OBC vide communication dated Feb. 15, 2000. Consequently acting under the instructions of the State Government, the RPSC issued a memorandum on Feb. 16, 2000 including those castes in the list of OBC for the purpose of Examination 1999 provided they produce a certificate to that effect on or before April 29, 2000. Against this action of the State Government and RPSC that the petitioners have instituted the instant writ petition seeking the reliefs as indicated hereinabove. (3). According to the petitioners the aforequoted Notifications are based on extraneous and irrelevant consideration devoid of appropriate and valid basis and contrary to the parameters laid down by the Supreme Court. These Notifications could not have been made effective retrospectively. The RPSC being a constitutional authority ought not to have followed the directions of the State Government. The developments made after the last date of submission of application forms, could not have been taken into consideration and the applicants who submitted their forms as candidates of General Category could not have been permitted to alter their category into OBC. (4). In the reply submitted by the RPSC it was stated that the decision of the State Government to give reservation was taken in the welfare of the people of the State of Rajasthan and the RPSC being a constitutional recruitment body is duty bound to conduct the examination in terms of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999. (5). The State of Rajasthan in its reply pleaded that the impugned Notifications were issued by the State under Article 162 of the Constitution of India to provide equal protection of laws to different sections of the society in conformity with the ratio indicated by Honble Supreme Court in Indira Sawhney vs. U.O.I. (1). In the present case the decision was taken before the preliminary qualifying examinations were conducted by the RPSC. The candidates who had already applied and were willing to take the benefit of inclusion of their names in the OBC category after their castes were included in the said category vide Notifications, were merely asked to submit certificates that they belong to OBC category. The candidates who had already applied and were willing to take the benefit of inclusion of their names in the OBC category after their castes were included in the said category vide Notifications, were merely asked to submit certificates that they belong to OBC category. No right of the petitioners has been infringed by including few more candidates in the category of OBC. The State Government under Article 16(4) of the Constitution of India can make special provision for the advancement of backward classes. (6). I have given my anxious consideration to the submissions advanced before me by the learned counsel appearing for the parties and intervenors and carefully scrutinised the material on record. (7). First limb of argument of Mr. Mahendra Singh, learned counsel for the petitioners is that developments made after the last date of submission of application forms could not have been taken into consideration and the candidates who submitted their forms as candidates of General Category could not have been permitted to alter their category into OBC. It was urged that an advertisement calling for applications constitutes a representation to the public and the authority who published the advertisement cannot act contrary to it. Act of changing the category from General to OBC after the last date of submission of application forms would affect the rights of similarly placed persons who could not have applied. Reliance was placed on Rekha Chaturvedi vs. University of Rajasthan (2), Ashok Kumar Sharma vs. Chander Shekhar (3), and Indra Bhan Singh Gujar vs. State of Rajasthan and another (4). (8). Second limb of argument advanced on behalf of the petitioners is that an executive order of the Government cannot be made operative with retrospective effect. Reliance was placed on Shri Govind Prasad vs. Shri R.G. Prasad (5), and P. Mahendran vs. State of Karnataka (6). (9). Third limb of argument of Mr. Mahendra Singh learned counsel for the petitioners is that the RPSC being a constitutional authority ought not to have followed the directions of the State Government. (10). On the other hand it was contended by Mr. (9). Third limb of argument of Mr. Mahendra Singh learned counsel for the petitioners is that the RPSC being a constitutional authority ought not to have followed the directions of the State Government. (10). On the other hand it was contended by Mr. R.N. Mathur, learned Additional Advocate General that impugned Notifications were issued under Articles 162 and 16(4) of the Constitution of India for the advancement of backward class in order to provide equal protection of laws to different sections of society and if certain more classes are included in the category of OBC it will not affect the rights of the petitioners. Reliance was placed on Kamla Godara vs. State of Rajasthan (7). Mr. S.N. Kumawat, learned counsel for the RPSC also supported the issuance of Notifications and prayed to dismiss the writ petition. (11). Mr. Jagdeep Dhankar learned Senior Advocate appearing for the intervenors raised preliminary objection to the maintainability of the writ petition and canvassed that in view of ratio of Indra Sawhney vs. U.O.I. (supra), the provision under Article 16(4) of the Constitution can be made by the executive and such a provision is effective the moment it is made. (12). Article 16(4) of the Constitution of India provides that ``nothing in this Article shall prevent the State from making 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. Nine Judge Bench of the Honble Supreme Court in Indra Sawhney vs. U.O.I. (supra) in para 859 propounded thus- ``859. We may summarise our answers to the various questions dealt with and answered hereinabove: (1) (a) It is not necessary that the `provision under Article 16(4) should necessarily be made by the Parliament/ Legislature. Such a provision can be made by the Executive also. Local bodies, statutory corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (Paras 735-737) (b) An executive order making provisions under Article 16(4) is enforceable the moment it is made and issued. (Paras 738-740) (13). Local bodies, statutory corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (Paras 735-737) (b) An executive order making provisions under Article 16(4) is enforceable the moment it is made and issued. (Paras 738-740) (13). Article 162 of the Constitution of India mandates that subject to the provisions of the Constitution, the executive power of the State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Since the executive power of the State Executive is co-extensive with that of the State Legislature, it follows that the State Executive may make rules regulating any matter within the legislative competence of the State Legislature, without prior legislative authority, except where a law is required because the Rules so framed would violate any provision of the Constitution which requires legislation. Notification dated November 3, 1999 and November 12, 1999 where issued by the State of Rajasthan in exercise of powers under Article 162 of the Constitution whereby certain castes were included in the category of OBC. The State Government is empowered to make provision in favour of socially and economically backward castes. The Notifications were issued by the State of Rajasthan before the preliminary examination was conducted before the RPSC, under Article 16(4) read with Article 162 of the Constitution of India and they were enforceable the moment they were made and issued. (14). The undisputed facts are that on September 28, 1993 the State of Rajasthan issued Notification providing 21% reservation to persons belonging to OBC in the posts and services in the State of Rajasthan. The RPSC issued advertisement inviting applications for preliminary examination of Competitive Examination 1999. June 15, 1999 was the last date for submission of applications. On November 3, 1999 Jats of Rajasthan other than those from Bharatpur and Dholpur Districts were included in the category of OBC. On November 12, 1999 certain other castes were included in the category of OBC. RPSC following the Notifications dated November 3, 1999 and November 12, 1999 issued Notification dated December 1, 1999 asked the candidates who already applied for appearing in Examination 1999, to submit OBC certificates, if they come in that category. On November 12, 1999 certain other castes were included in the category of OBC. RPSC following the Notifications dated November 3, 1999 and November 12, 1999 issued Notification dated December 1, 1999 asked the candidates who already applied for appearing in Examination 1999, to submit OBC certificates, if they come in that category. Various other castes were included in the list of OBC vide Notifications dated January 1, 2000 and January 10, 2000 and RPSC issued a memorandum on Feb. 16, 2000 asking the candidates to submit OBC certificates. (15). In my considered opinion competency of the State Government in issuing executive orders can not be called in question in view of provisions contained in Articles 16(4) and 162 of the Constitution of India. Constitution Bench of Honble Supreme Court in Indra Sawhneys case (supra) propounded that necessary directions under Article 16(4) can be issued by the Executive order and said directions are enforceable the moment they are made and issued. Thus the Notifications dated November 3, 1999 and November 12, 1999 had to be made applicable the moment they were made and issued and the RPSC did no wrong in issuing Notification dated December 1, 1999 asking the candidates who submitted application forms on or before June 15, 1999 (last date for submitting the application forms) to produce OBC certificates. Cases cited by learned counsel for the petitioners are distinguishable. In Ashok Kumar Sharma vs. Chander Shekhar (supra) the last date for submitting application form was July 15, 1982. A pass in B.E. (Civil) Examination was the minimum qualification required. 33 persons were not qualified as on the specified date yet they were interviewed pursuant to the instructions given by the Government. Under these circumstances it was held by their Lordships of the Supreme Court that the candidates who did not fulfil require qualification on the date of submission of the application but acquired later albeit before the holding of interview, could not have been permitted to appear in interview. One reason behind this proposition was that if it were known that persons who obtained the qualification after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. One reason behind this proposition was that if it were known that persons who obtained the qualification after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Some of the persons who applied despite of their being not eligible on the last date of submission of application, could not have been treated on a preferential basis. Rekha Chaturvedi vs. U.O.R. (supra) and Indra Bhan Singh Gujars case (supra) are also based on the same reasonings. But in the case on hand the situation is different. Here all the candidates did possess the required qualification to appear in the Examination 1999. Some of the candidates filled the application forms treatingthem as the candidates of General Category as on the date of submission of the application forms they were not included in the category of OBC. It is after the issuance of the Notifications dated November 3, 1999 and November 12, 1999 that the RPSC asked them to submit the OBC certificates as the Notifications were enforceable the moment they were issued. In the instant case the candidates at the time of submission of application forms did not change their category in anticipation of Government Notifications. All of them were well qualified to appear in Examination 1999. If they came in the category of OBC afterwards, they had every right to be so considered in view of ratio of Indra Sawhneys case (supra). (16). Cases of Govind Prasad vs. R.G. Prasad (supra) and P. Mahendran vs. State of Karnataka (supra) are also not applicable in the instant case. Here the executive order of the State Government was not made operative with retrospective effect. Notifications were issued much before the Preliminary Examination 1999 and they were enforceable from the moment they were issued. If castes of some of the candidates were included in the category of OBC, they could not have been denied the said benefit on the ground that they submitted their application forms as General Category candidates. The Notifications were made applicable prospectively and the cases cited by the learned counsel for the petitioners are distinguishable. (17). If castes of some of the candidates were included in the category of OBC, they could not have been denied the said benefit on the ground that they submitted their application forms as General Category candidates. The Notifications were made applicable prospectively and the cases cited by the learned counsel for the petitioners are distinguishable. (17). In Kamla Godara vs. State of Rajasthan (supra) the Division Bench of this Court indicated that no vested right can be said to have accrued to the candidates by mere filling up of the forms for taking up the examinations and they cannot ask the High Court under Article 226 of the Constitution of India to interfere in a matter which falls short of creating any right. The petitioners in the instant case have no vested right to call in question the valid law framed by the State Government. By mere filling up the application forms to appear in the Examination 1999 the petitioners cannot claim that they have any indefeasible right to maintain the writ petition. The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. The petitioners who also come from OBC category can not be said to be affected by inclusion of some more castes in the OBC category as in the open competition only most meritorious candidates will survive in the end. (18). I am unable to pursuade myself to agree with the submissions advanced by the learned counsel appearing for the petitioners and I hold that the State Government was competent to pass executive orders for including some more castes in the category of OBC under Article 16(4) read with Article 162 of the Constitution of India. In view of what I have discussed hereinabove I do not find any merit in the writ petition. (19). Resultantly, the writ petition fails and stands dismissed. No costs.