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Rajasthan High Court · body

2011 DIGILAW 2720 (RAJ)

Hemant Sharma v. State of Rajasthan

2011-12-09

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—With the consent of the parties, the matter is heard finally. 2. It is a case where result of the selection to the post of Motor Vehicle Sub Inspector has been challenged. 3. It is urged that for common subject in the written examination, formula of scaling should not have been applied as subject variability does not exist therein. 4. Petitioners were surprised to notice that their raw marks have been changed by applying scaling. It is a case where all the candidates appeared in the written examination having same subjects, thus not a case of variation of papers. In the aforesaid background, it is prayed that application of scaling may be held to be illegal. Reference of the judgment in the case of "Ram Narayan Bhanwreya vs. State of Rajasthan & Anr.", SB Civil Writ Petition No. 3705/2009, decided on 20.9.2011 at Principal Seat, Jodhpur has been given, wherein, the application of scaling for selection to the post of Sub Inspector of Police and other posts was challenged. This Court, after considering the facts, held that scaling cannot be applied in all the selections, specially when variation of subject papers do not exist. The judgment of the Apex Court in the case of "Sanjay Singh vs. UP Public Service Commission, Allahabad & Anr.", reported in JT 2007 (2) SC 534 was referred therein and present case is covered by the aforesaid judgment itself apart from the judgment of this court in the case of "Vikram Singh Gurjar vs. Rajasthan Public Service Commission", SB Civil Writ Petition No. 3741/2011, decided on 7.9.2011, wherein, similar issue came up before this court and by a detailed judgment, bunch of writ petitions were decided. Accordingly, prayer is made to allow all these writ petitions with a direction to the respondents to apply the judgment in the case of Vikram Singh (supra) and after taking note of raw marks of the petitioners, if any of them have secured more marks then the candidate last selected in the category, they may be appointed to the post. 5. Learned counsel for respondents are fair enough to state that there was no variation of subjects in the selection in question. Scaling was applied keeping in mind variation of examiner, however, they conceded that the issue is covered by the judgment of this court in the cases referred to above. 5. Learned counsel for respondents are fair enough to state that there was no variation of subjects in the selection in question. Scaling was applied keeping in mind variation of examiner, however, they conceded that the issue is covered by the judgment of this court in the cases referred to above. The prayer is only to save the selections already made but the matter may be covered by the direction in the case of Vikram Singh (supra) and, thereby, if any of the petitioners has secured merit position based on raw marks, he would be considered and be given appointment. 6. In view of the submissions made above, the respondent - RPSC is directed to declare the result afresh based on actual marks as there exists no subject variation. This is more so when the candidates already selected are before this Court in the representative capacity and it is a matter where appointments are yet to be made. Accordingly, all these writ petitioners are allowed with the aforesaid direction. Accordingly, the respondent- RPSC is expected to declare the result afresh at the earliest and if possible within a period of 15 days from the date of receipt of certified copy of this order. 7. An additional ground has been raised by learned Senior Advocate, Mr. S.P. Sharma, in regard to the pattern of reservation to the OBC candidates. It is submitted that for General Caste as well as for OBC, one and the same cut off marks should have been provided by the respondent-RPSC. If same cut of marks are not provided then any seat left vacant in OBC Category cannot be filed properly. To illustrate it is submitted that if there are 100 vacancies advertised and out of which 50 seats have to be filled from General Category and 21 from OBC Category then cut off marks should be taken based on the marks of first 71 candidates. After taking note of the marks of the candidate at No. 71, the cut off marks for General as well as OBC Category should be provided. However, the respondent- RPSC has provided separate cut off marks for General and OBC. Taking aforesaid illustration on 100 vacancies, it is stated that cut off marks for General Category is provided by taking marks of first 50 candidates i.e., marks of 50th candidate as cut off marks. However, the respondent- RPSC has provided separate cut off marks for General and OBC. Taking aforesaid illustration on 100 vacancies, it is stated that cut off marks for General Category is provided by taking marks of first 50 candidates i.e., marks of 50th candidate as cut off marks. Therein all the meritorious reserved caste candidates whether SC/ST/OBC are also included, if they have secured more marks than the cut off marks of 50th candidate. The separate cut of marks are then provided to OBC candidates to fill 21 vacancies meant for them. While doing the said exercise if availability of OBC candidates is not to the extent of 21% then as per the amended rules more specifically Rule 7 and 7A of the Rajasthan Transport Subordinate Service Rules of 1963 (for short `the Rules'), such unfilled vacancy of OBC has to be filled from the General Category and thereby a separate cut off marks are required to be provided thereupon. This would not be as per Rule 7 and 7A of the Rules. The respondents be directed not to provide separate cut off marks for General and OBC rather it should be one and the same cut off marks. 8. I have considered the submissions made above also. 9. Before appreciating the arguments of learned Senior Advocate, it is necessary to clarify as to what is the law on the issue. In catena of judgments, the Hon'ble Apex Court held that a candidate belonging to the reserved caste can shift to General Category based on his merit, as social reservation is vertical in nature thereby shifting is permissible from one category to another. Same is not the position in regard to horizontal reservation, therein one category cannot be shifted to another category. Taking social reservation to be vertical, shifting of reserved caste candidates to general list is made permissible if any candidate belonging to the reserved caste has obtained merit position to be placed in the General Category and if any such reserved caste candidate finds place in the general list then those candidates are not counted towards reservation. To apply aforesaid formula, no differentiation has been made in regard to the category of reservation whether it is ST/SC/OBC or SBC. In fact all these categories are part of reserved caste, which is otherwise in reference to Article 16(4) of the Constitution of India. To apply aforesaid formula, no differentiation has been made in regard to the category of reservation whether it is ST/SC/OBC or SBC. In fact all these categories are part of reserved caste, which is otherwise in reference to Article 16(4) of the Constitution of India. According to the judgment of the Hon'ble Apex Court, after drawing the general list, wherein irrespective of caste, list is to be prepared purely based on the merit of the candidates and thereupon to prepare the list of reserved caste candidates namely ST/SC/OBC/SBC. In view of the aforesaid, the administration prepares list of general category first and last candidate in the ladder is taken for determination of the cut off marks for general category. After preparation of the list of the general category at the first instance, the list for reserved category is prepared from and amongst left out candidates of that reserved category candidates. The cut off list of various reserved caste category namely ST/SC/OBC/SBC is prepared to the extent of vacancy for their category and availability of their candidate. Last candidate in each category is taken for determination of the cut off marks for different categories. For illustration as against 100 vacancies 50 vacancies are general seats then first general list would be prepared wherein all caste members would be included, where mark obtained by the last candidate at No. 50 would be the cut off marks for general category, assuming i.e., 110 marks. For preparation list of ST/SC/OBC/SBC, the left out candidates of their category would be fitted to the size of vacancy meant for each category. This would obviously be less than 110 marks as illustrated above because any candidate having 110 marks or above would be placed in the general list. Accordingly cut off marks of the OBC and General Caste cannot be same otherwise settled law of the land would be unsettled. If the illustration given by the learned Senior Advocate is applied to above and the general and OBC list is taken to be size of 71 candidates against 100 vacancies (50 seats for General or 21 for OBC) then cut off marks would be that obtained by 71st candidate. If the illustration given by the learned Senior Advocate is applied to above and the general and OBC list is taken to be size of 71 candidates against 100 vacancies (50 seats for General or 21 for OBC) then cut off marks would be that obtained by 71st candidate. The law permits shifting of reserved caste category to general category and not from one reserved category to another reserved category, whereas upto the list of 71 candidates there may be meritorious candidates from SC/ST category and they will occupy the seats meant for OBC if find place in merit after 50th and before 71st number in merit if the argument of the counsel is accepted. This would be against settled law. 10. In my opinion, learned Senior Advocate could not notice the difference between the horizontal and vertical reservations so as the application of vertical reservation where shifting is permissible for reserved caste to General Category and not that one category of reserved person to shift another reserved category. If Rule 7 & 7A of the Rules are also applied then also there is no violation in the exercise undertaken by the respondents. In fact for vacancy meant for SC/ST, if it remains unfilled, it has to be carried forward without filling by other category whereas for OBC such provision does not exist. Any seat left vacant for OBC category is to be filled by general category and accordingly if the illustration given above is again taken note of and therein against 100 vacancies 50 seats are filled by General Category and thereafter 21 seats for OBC are taken note of and against 21 vacancies only 10 OBC candidates are available then remaining 11 posts would be filled from and amongst left out meritorious candidates in order of marks irrespective of caste because it is reckoned to be a general list and carry forward would of 11 vacancies. In the aforesaid circumstances, there is no difficulty to carry out the provisions of Rule 7 and 7A of the Rules. 11. In the present matter the argument raised by the learned Senior Advocate is otherwise hypothetical in nature because after declaring application of scaling to be illegal, the respondents would obviously declare a fresh list of the eligible candidates based on actual marks obtained by them in the selection. 11. In the present matter the argument raised by the learned Senior Advocate is otherwise hypothetical in nature because after declaring application of scaling to be illegal, the respondents would obviously declare a fresh list of the eligible candidates based on actual marks obtained by them in the selection. Whether OBC candidates would be available or not cannot be said at this stage rather it can be after finalization of fresh select list as per the directions of this Court. The grievance of the petitioners seems to be against cut off marks of general category where many candidates with low marks belonging to the OBC Category are getting appointment. Firstly it is to be clarified that unless rules provide minimum qualifying marks in each paper or in aggregate, the size of the panel cannot be restricted that too when a decision is not taken by the Commission to restrict the size of panel with same required percentage of marks. In absence of rule to provide minimum qualifying marks or a decision by the respondent-RPSC, every candidate would be eligible to take benefit of reservation. Thereby the grievance of the petitioners that OBC candidate with lower marks should not be given appointment cannot be accepted rather looking to the fact this case where exercise for preparation of new select list would be undertaken by the respondent-RPSC now, it is left open for them to look into the aforesaid aspect as to whether they should provide minimum qualifying marks for selection or not. The aforesaid consideration may be keeping in mind the recent judgment of the Hon'ble Apex Court in the case of M. Nagaraj vs. Union of India reported in (2006) 8 SCC 212 where a direction is issued to look into the effect on the efficiency of the administration if reservation is provided. I hope and trust that the respondent-RPSC would definitely look into the aforesaid aspect while preparing the new select list. Inclined to accept the argument raised by learned Senior Advocate. The issue aforesaid is disposed of with the observations made above. 12. Since new list would now be prepared and declared by the respondent-RPSC, if any candidate is having any other issue thereupon, he would be at liberty to agitate the same by taking proper legal recourse. 13. With the aforesaid, all these writ petitions are disposed of. This disposes of stay applications also.