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2007 DIGILAW 276 (RAJ)

Sher Singh Yadav v. State of Rajasthan

2007-02-07

P.S.ASOPA

body2007
P.S. Asopa, J.—By this writ petition, the petitioner is seeking appropriate writ, order or direction for appointment to the post of Senior Teacher English (Male) also called as Teacher Gr. II English in pursuance of the advertisement dt. 09.08.1998 whereby 37 posts have been advertised in all. Out of that 37 posts, 21 posts were meant for general category, 5 for SC, 4 for ST and 7 for OBC. 2. The case, in short, of the petitioner is that while preparing the panel, the respondents have not kept in mind the ratio of the Constitutional Bench judgment delivered in case of R.K. Sabharwal & Ors. vs. State of Punjab & Ors. (1995) 2 SCC 745 , according to which, a candidate of reserve category standing in general merit cannot be counted in reserve category. 3. The respondent State has submitted that selection list has been rightly prepared and as per note in the category of merit list, it has been mentioned that panel would remain valid upto 31st March, 1999. The Writ Petition has been filed after the expiry of the said date i.e. on 13.07.1999, therefore, no relief can be granted to the petitioner. Otherwise, also, the petitioner has not impleaded the persons selected and appointed and there is no vacancy of the relevant year, therefore, the writ petition is not maintainable. 4. On the aforesaid objection, the petitioner has submitted that seniority list was wrongly prepared by the State Government, therefore, he cannot be allowed to suffer and further has challenged the action of the State, therefore, selected and appointed persons are not necessary party. 5. Heard counsel for the parties and gone through the record of the writ petition and further considered rival submission of the parties. 6. In my view, validity period of the panel i.e. 31st March, 1999 will not come in the way of the petitioner on account of the fact that preparation of faulty list is wrong on the part of the Government, therefore, the petitioner cannot be allowed to suffer as per ratio of the Supreme Court in case of Purushottam vs. Chairman, M.S.E.B. & Anr. 1999 (6) SCC 49 wherein the contention of no vacancy was also not found favour with Court. The relevant para 4 of the same is as follows: “4. 1999 (6) SCC 49 wherein the contention of no vacancy was also not found favour with Court. The relevant para 4 of the same is as follows: “4. In view of the rival submissions the question that arises for consideration is that the duly selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deshpande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant’s right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature.” (emphasis supplied) 7. The said judgment has been followed by this Court in case of Pukhraj Singh vs. The State of Rajasthan & Ors. 2003(3) WLC (Raj.) 778. The relevant para 30 & 31 of the said judgment are as follows: “30. So far as the argument of the respondents that since the period of select list had expired, therefore, appointment cannot be given to the petitioner now is concerned, this question has been answered by the Hon’ble Supreme Court in Purshottam vs. Chairman, M.S.E.B. and anr. The relevant para 30 & 31 of the said judgment are as follows: “30. So far as the argument of the respondents that since the period of select list had expired, therefore, appointment cannot be given to the petitioner now is concerned, this question has been answered by the Hon’ble Supreme Court in Purshottam vs. Chairman, M.S.E.B. and anr. (1999 SCC (L&S) 1050) where it was observed by the Hon’ble Supreme Court that the right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else was not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. 31. In the present case, since wrong calculation was done by the respondents, therefore, on that basis, the petitioner was not given appointment and for that, the petitioner should not suffer at all. Therefore, the above argument of the respondent is rejected.” (emphasis supplied) 8. Therefore, the contention of the State Government of expiry of panel on account of their fault of not preparing the same in accordance with law laid down by Supreme Court in case of R.K. Sabharwal has no force. As regards not impleading the OBC persons as a party to the writ petition, I am of the view that the petitioner’s claim can only be considered in case after redrawing the merit list, any person lower in merit to him is selected and appointed, for the aforesaid part of the relief also, no person is liable to be disturbed, therefore, this argument of the State Government also equally has no force. 9. The ratio of the judgment of Supreme Court in case of R.K. Sabharwal vs. State of Punjab, 1995 (2) SCC 745 is that the reservation is in addition to general category, therefore, the persons of any category selected against the general category by dint of merit cannot be included in the reserve category. The reserved category list is to be drawn only after considering the claim of all candidates in general category. In other words, the candidates selected in general category are not entitled for reserved post. The reserved category list is to be drawn only after considering the claim of all candidates in general category. In other words, the candidates selected in general category are not entitled for reserved post. The relevant para 4 of the said judgment is as follows: “4. 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 reserve 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 356 posts their number cannot be added and taken into consideration for working out the percentage of reservation. Art. 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 citizen which, in the opinion of the State is not adequately represented in the services under the State. It 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 cannot 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. 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 appointment/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 reject the same.” (emphasis supplied) 10. The Division Bench of this Curt in case of Ram Gopal & Anr. vs. State of Rajasthan & Ors. D.B. Special Appeal (W) No. 113/2002 has also considered the Sabharwal’s case (supra). The relevant portion of the aforesaid judgment is as follows: “When the petitioners-appellants are entitled for appointment against the OBC Vacancies in case the OBC candidates who came in the merit alongwith the general should be excluded. We see no justification to deny them appointment specially in view of the decision of their lordships in case of R.K. Sabharwal & Ors. (supra). Therefore, we direct the respondents to give appointment to the petitioners-appellants Ram Gopal and Krishnan Kumar Yadav against the post of Senior Teacher (Biology) Gr. II within a month from the date of receipt of this order.” 11. In the result, the writ petition is partly allowed and the respondents are directed to redraw the merit list as directed above only for the purpose to see whether any person lower in merit to the petitioner has been selected and appointed in reserved category after re-drawing the merit list. In case person lower in merit to the petitioner has been selected in the said reserved category then case of the petitioner shall also be considered and he further be given consequential appointment, if found suitable alongwith other benefits of seniority except pay, which shall be notionally fixed. The appointment of other candidates shall not be disturbed. In case person lower in merit to the petitioner has been selected in the said reserved category then case of the petitioner shall also be considered and he further be given consequential appointment, if found suitable alongwith other benefits of seniority except pay, which shall be notionally fixed. The appointment of other candidates shall not be disturbed. * * * * *