Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 1876 (RAJ)

Hemant Gupta v. State of Rajasthan

2011-09-02

GOVIND MATHUR

body2011
JUDGMENT 1. - The issue involved in these two petitions pertains to the same cause, hence, the same are disposed of by this common order. 2. The factual matrix necessary to be noticed is that the applications were called for by the respondent Officer-in-charge, Lower Division Clerk Competitive Examination, Additional District Sessions Judge No.1, Sriganganagar by notification dated 10.1.2011 from the eligible candidate s, to be considered for appointment as Lower Division Clerk against the 12 existing vacancies in the Pay B of Rs. 5200-20200 + Grade Pay of Rs. 1900. The selection under the notification aforesaid was to be made as per the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986 (for short 'the Rules of 1986' hereinafter). Out of the 12 vacancies, pertaining to which process of selection was initiated, 10 were reserved for Scheduled Tribes and one for the candidate s coming from Scheduled Caste. The result of the selection was declared on 25.4.2011, and in all 41 candidate s were declared successful. However, the respondents allowed appointment only to three persons, one from Scheduled Caste and two from Scheduled Tribes. The remaining 09 vacancies were not filled-in due to non-availability of suitable incumbents from the categories of Scheduled Tribe Scheduled Caste. 3. The petitioners by submitting representation to the District Sessions Judge, Sriganganagar made a request to fill-in all existing vacancies from the other selected incumbents, though not coming in the category of Scheduled Castes/Scheduled Tribes. No action thereupon was taken, hence, these petitions for writ are preferred. 4. It is submitted by learned counsel for the petitioners that as per sub-rule (4) of Rule 7 of the Rules of 1986, in the event of non-availability of eligible or suitable candidate s from among the Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved should have been filled-in by adhering normal procedure i.e. by giving appointment to other selected incumbents. The respondents, therefore, should have filled-in all the existing vacancies from the other selected incumbents, including the petitioners. 5. The respondents, therefore, should have filled-in all the existing vacancies from the other selected incumbents, including the petitioners. 5. Per contra, as per the respondents, a Division Bench of this Court in Laxman Prasad Sharma v. District & Sessions Judge, Pratapgarh & Ors., D.B. Civil Special Appeal No. 656 of 2004 held that the future vacancies are not required to be clubbed with the vacancies advertised, therefore, the existing 09 vacancies were not filled-in by adhering the provisions of Rule 7(4) of the Rules of 1986. 6. Heard learned counsel for the parties. 7. While exercising the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan after consulting the High Court of Rajasthan framed the Rules of 1986 and sub-rule (4) of Rule 7 of the Rules aforesaid reads as under:- "(4)- Appointment shall be made strictly in accordance with the rosters prescribed separately for direct recruitment promotion. In the event of non-availability of the eligible suitable candidate s amongst the Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure, and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse." 8. In view of the provision aforesaid, in the event of nonavailability of suitable selected incumbents from the Scheduled Castes/Scheduled Tribes categories, the respondents should have filled-in existing vacancies by adhering normal procedure i.e. by giving appointment to the persons selected under General categories. The only reason given for not adhering the mandate of sub-rule (4) of Rule 7 of the Rules of 1986 is that some directions were given by a Division Bench of this Court in the case of Laxman Prasad Sharma (supra). On pondering, it reveals that the facts and law laid down in the case of Laxman Prasad (supra), as a matter of fact, are having no application in the present controversy. In that case, the Division Bench of this Court was considering the issue about the rights of the candidates placed in the select list for appointment against the future vacancies occurred in excess to the vacancies advertised. 9. In that case, the Division Bench of this Court was considering the issue about the rights of the candidates placed in the select list for appointment against the future vacancies occurred in excess to the vacancies advertised. 9. The factual background of the case aforesaid was that a process of selection was initiated for recruitment of Lower Division Clerks and during currency of that certain more vacancies occurred, but the District Judgeship filled-in only the vacancies advertised. The persons placed on the select list, but not employed approached this Court with a prayer to fill-in all existing vacancies. Learned Single Judge, as well as the Division Bench held that the vacancies those came into existence after initiation of the process of selection for the existing vacancies could have not been filled-in by the persons placed in the select list that is outcome of earlier process of selection. It was held in the case of Laxman Prasad (supra) that the vacancies came into existence after issuance of the advertisement are required to be treated as future vacancies and those must be filled-in by separate process of selection. 10. In the instant matter the position is entirely different. All the 12 vacancies existing were advertised by the respondents under the notification dated 18.1.2011, but out of those only three were filled-in, as such, the vacancies available are not future vacancies, but the existing one. These vacancies were subject matter of the process of selection conducted in pursuance of the notification dated 18.1.2011. If, as a consequent to the selection conducted, adequate number of suitable candidate s from the Scheduled Castes/Scheduled Tribes categories are not available with the respondents, then as a consequent to the mandate of sub-rule (4) of Rule 7 of the Rules of 1986, these vacancies are required to be filled-in by adopting the normal procedure. Meaning thereby, all these vacancies are required to be filled-in by operating the select list by giving appointments even to the persons for whom no reservation is prescribed. The respondents, thus erred while not filling-in the existing 09 vacancies by adhering the provision of sub-rule (4) of Rule 7 of the Rules of 1986. 11. The petitions for writ, hence, deserve acceptance. Accordingly, the same are allowed. The respondents are directed to operate the select list dated 25.4.2011 in accordance with the provisions of sub-rule (4) of Rule 7 of the Rules. 11. The petitions for writ, hence, deserve acceptance. Accordingly, the same are allowed. The respondents are directed to operate the select list dated 25.4.2011 in accordance with the provisions of sub-rule (4) of Rule 7 of the Rules. 1986, by giving appointment to the selected candidate s, in order of their merit. No order as to costs.Writ Petition Allowed. *******