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2003 DIGILAW 1299 (RAJ)

Sukh Ram v. State of Rajasthan

2003-09-12

H.R.PANWAR

body2003
Honble PANWAR, J.–These two writ petitions have been filed seeking the relief to struck down the proviso to rule 7 of the Rajasthan Education Subordinate Service Rules, 1971 (for short, ``the Act, 1971) quashing the advertisement and the corrigendum and directing the respondents to fill up the posts by issusing fresh advertisement. Since both these writ petitions involve identical questions of law and facts, they are being deciding by this common order taking SBCWP No. 1905/2001, Sukh Ram & Ors. vs. State of Rajasthan & Ors., as the leading case. (2). The facts and circumstances giving rise to the writ petition are that the respondents issued an advertisement dated 31.3.2001 for direct recruitment on the post of Teachers Grade II against the vacancies for the year 2000-2001. In pursuance to the said advertisement, the petitioners submitted their applications. However, a corrigendum was issued declaring all the vacancies of 2000-2001 reserved for the members of Schedule Castes/Scheduled Tribes. The representations submitted by the petitioners could yield nothing. Hence these writ petitions. (3). Refuting the averments made in the writ petition, justifying their stand and taking shelter of the mandate of Constitution of India, the respondents have filed a detailed reply taking certain preliminary objections also. (4). I have heard learned counsel for the petitioners, the learned Advocate General and the learned counsel for the private respondents and perused the record of the case. (5). By the advertisement Annex.1 dated 31.3.2001, 300 posts of Senior Teacher/Teachers Grade II were advertised seeking applications from the candidates of General Category, SC/ST and O.B.C. However, vide Corrigendum Annex.2 dated 15.4.2001, all these 300 posts have been reserved for the candidates belonging to Scheduled Castes/Scheduled Tribes. Thus, by this corrigendum, the candidates of General Category as well as Other Backward Classes were made ineligible to apply for the said posts. (6). The grievance of the petitioners is that the reservation for SC/ST candidates cannot be made beyond 50% of the post advertised and if backlog vacancies are to be filled up, separate advertisement should have been issued. It has further been contended by the learned for the petitioners that the backlog vacancies cannot be carried forward after three years. (6). The grievance of the petitioners is that the reservation for SC/ST candidates cannot be made beyond 50% of the post advertised and if backlog vacancies are to be filled up, separate advertisement should have been issued. It has further been contended by the learned for the petitioners that the backlog vacancies cannot be carried forward after three years. Per contra, learned counsel for the respondents have taken shelter of the provisions of Article 16 (4B) of the Constitution of India and placed reliance on the Circular-Order dated 9.10.2000 (Annex.R.1), by which backlog vacancies reserved for SC/ST has been ordered to be taken as a distinct group and orders have been passed for non-applicability of ceiling limit of 50% on the backlog vacancies in view of Article 16 (4B) of the Constitution of India. Thus, in pursuance of the provisions of Article 16 (4B) of the Constitution, the State Government has decided to revise the applicability of 50% ceiling on reservation. (7). Rule 7 of the Rules, 1971 provides reservation of vacancies for the Scheduled Castes and the Scheduled Tribes. Sub-rule (4) of rule 7 provided for carrying forward the backlog vacancies for SC/ST candidates to the subsequent three recruitment years in total and thereafter such reservation would lapse. As per the Circular-order Annex.R/1 issued by the State Government on 9.10.2000, in view of the provisions of Article 16 (4B) of the Constitution of India, the State Government decided to revise the applicability of 50% ceiling on reservation as under:- ``The revised vacancies for Scheduled Castes and Scheduled Tribes in all cases of direct recruitment and promotion, wherever applicable, which have remained unfilled in the earlier year (s), i.e. backlog and/of carried forward vacancies would be treated as a separate and district group and will not be considered together with the reserved vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. In other words, the ceiling of 50% of filling up of reserved vacancies would apply only on the reserved vacancies which arise in the current year and the backlog/carried forward reserved vacancies for SCs/STs of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling. (8). In other words, the ceiling of 50% of filling up of reserved vacancies would apply only on the reserved vacancies which arise in the current year and the backlog/carried forward reserved vacancies for SCs/STs of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling. (8). Thus, it is clear that the Corrigendum Annex.2 has been issued to fill up the backlog vacancies for the SC/ST candidates. The Circular-Order Annex.R/1 specifically provides that backlog/carried forward reserved vacancies for SC/ST of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling limit of 50%. The ceiling limit of 50% would apply only in the case where the posts have been advertised for all categories of candidates including General Category, SC/ST, O.B.C. etc. on the total number of vacancies of the year. By the corrigendum Annex.2, the respondent have reserved all the 300 posts for the SC/ST candidates. Thus, the ceiling of 50% shall not apply in this case because all the posts are sought to be filled-up exclusively to fill up the back-log vacancies. So far as filling the ensuing vacancies of subsequent years are concerned, the respondents may issue fresh advertisement inviting applications from all categories of candidates including the members of General Category and O.B.C. etc. (9). It has been contended by the learned counsel for the petitioners that without amending the existing rule 7 of the Rules, 1971, the State Government, vide Circular-Order Annex.R/1 dated 20.10.2002, has amended the provision and authorised the Appointing Authorities to carry forward the backlog vacancies beyond the period of three years. The argument seems to be attractive but it is hollo in substance. Article 16(4B) reads as under:- ``Noting in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such clause of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. (10). reservation on total number of vacancies of that year. (10). Thus, the State Government can take a policy decision in order to pay regard to the mandate of the Constitution. Constitution is the touch-stone to test the validity of any rule or statute. Amendment of a rule is a lengthy procedure and to meet with the urgent need and while following the mandate of the Constitution, the State Government has issued the Circular-Order Annex.R/1. The delay, inaction, omission or apathy in amending the relevant provisions of the Rules will in time will not extinguish the rights provided to the members of the SC/ST under the Constitution of India. The provisions of Article 16 (4B) are constitutional mandates and any rule repugnant to such provision would be automatically eclipsed. (11). In Ashok Kumar Gupta & Ors. vs. State of U.P. & Ors. (1), the Three Judges Bench of the Honble Supreme Court observed that ordinarily right to promotion is a statutory and not a fundamental right; however, Articles 16(4A) and (1) and 14 read together guarantee the members of SC/ST a fundamental right to promotion where they do not have adequate representation, constantly with the efficiency of administration. The Apex Court further observed that every citizen or group of people has a right to a share in the governance of the State. The Scheduled Castes and Scheduled Tribes equally being citizens have a right to a share in the governance of the State. The Apex Court further held as under:- ``Equality of status and dignity of the individual will be secured when the employees belonging to SCs and STs are given an opportunity of appointment by promotion in higher echelons of service so that they will have opportunity to starve towards excellence individually and collectively with other employee s in improving the efficiency of administration. Equally they get the opportunity to improve their efficiency and opportunity to hold offices of responsibility at hierarchical levels.... Unless one is given opportunity and facility by promotion to hold an office or a post with responsibilities, there would be no opportunity to prove efficiency in the performance of discharge of duties. (12). Equally they get the opportunity to improve their efficiency and opportunity to hold offices of responsibility at hierarchical levels.... Unless one is given opportunity and facility by promotion to hold an office or a post with responsibilities, there would be no opportunity to prove efficiency in the performance of discharge of duties. (12). The Honble Supreme Court, in Ashok Kumar Guptas case (supra) further observed that those who are unequals cannot be treated by identical standard and the State must, therefore, resort to protective discrimination for the purpose of making people, who are factually unequal, equal is specific area. It would, therefore, be necessary to take into account de facto inequality which exists in the society and to take affirmative action by giving preference and making reservation in promotions in favour of the SC/ST candidates or by ``inflicting handicaps on those more advantageously placed, in order to bring about equality. Such affirmative action, though apparently discriminatory, is calculated to produce equality on a broader basis by eliminating de facto inequality and placing the members of SC/ST on the footing of equality with non-tribal employees so as to enable them to enjoy equal opportunity and to unfold their full potentiality. The Apex Court further observed that protective discrimination envisaged in Articles 14(4) and 16 (4- A) of the Constitution of India is the armour to establish the said equilibrium between equality in law and equality in result as a fact to the disadvantaged and the principle of reservation in promotion provides equality in results. The Apex Court Court further held that in adjusting the competing rights of the SC/ST on the one hand and the employees belonging to the general category on the other hand, the balance in required to be struck by applying the egalitarian protective discrimination in favour of the SC/ST to give effect to the constitutional goals, policy and objective. (13). There is yet another aspect of the matter. Every citizen or group of people has right to a share in the governance of the State. The Scheduled Castes and Scheduled Tribes equally being citizens have a right to a share in the governance of the State and in the permanent democracy service conditions are assured under Articles 309 to 312-A subject to the provisions of Articles 310 to 312-A subject to the provisions of Articles 310, 33 and 34 of the Constitution of India. The Scheduled Castes and Scheduled Tribes equally being citizens have a right to a share in the governance of the State and in the permanent democracy service conditions are assured under Articles 309 to 312-A subject to the provisions of Articles 310 to 312-A subject to the provisions of Articles 310, 33 and 34 of the Constitution of India. The right to seek equality of opportunity to an office or a post under the State is a guaranteed fundamental right to all citizens alike under Article 16(1), the specie of Article 14, the genus. (14). So far as the petitioners are concerned, no person can claim appointment as a matter of right and the only right available to them is consideration of their case for appointment. In the instant case, by the Corrigendum Annex.2, all the vacancies have been reserved for the members of SC/ST to filled up the separate and distinct group and as such the ceiling limit of 50% would not apply in the instant case in view of mandatory provision of Article 16 (4B) of the Constitution of India. (15). In view of the aforesaid, I find no merit in these writ petitions and accordingly they are dismissed. There shall be no order as to costs. Interim orders stand vacated and the stay petitions are dismissed.