Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2760 (RAJ)

Narottam Meena v. State of Rajasthan

2011-12-14

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—The matter pertains to the selection to the post of Junior Accountant pursuant to the advertisement issued in the year 2008. All the posts were mentioned as backlog vacancies of the period prior to 10.10.2002. 2. Petitioners are aggrieved on their non-selection and selection of general candidates against the backlog vacancies. This is more so when the Rajasthan Subordinate Accounts Service Rules, 1963 (for short `the Rules of 1963') were amended vide notification dated 5.7.2011 providing a clause for relaxation in minimum qualifying marks in compulsory subjects to the Scheduled Castes/Scheduled Tribes candidates, however, in the present matter, amended rule has not been applied though result was declared subsequent to the amendment. The grievance of the petitioners is also that Rule 22 of the Rules of 1963 provides for minimum qualifying marks only in compulsory subjects whereas minimum qualifying marks should have been for all the subjects more specifically the subject concerned to the post of Junior Accountant. A reference of Schedule II has also been given for the aforesaid purpose. 3. I have considered the submissions made by learned counsel for petitioners and perused the record carefully. 4. First issue for my consideration is as to whether amendment made in the Rules of 1963 by the notification dated 5.7.2011 can be applied retrospective to the selection of the year 2008. It is not in dispute that advertisement to the post of Accountant and Junior Accountant etc. was issued in the year 2008 followed by written examination on 25.6.2011. Result thereof was declared on 19.10.2011 and in between, amendment in the Rules was made to provide relaxation in minimum qualifying marks in compulsory subjects to the extent of 5% to SC/ST candidates. The respondents vide Annexure-8 took a decision not to apply the said rule to the selection pursuant to the advertisement of 2008 as all those vacancies were prior to the year 2002 thus, selection for those vacancies have to be undertaken as per the rules then existing and not by the amended rule of 5.7.2011. It is informed that written examination for selection was held on 25.6.2011 and till then, no amendment came providing relaxation to SC/ST candidates. It is informed that written examination for selection was held on 25.6.2011 and till then, no amendment came providing relaxation to SC/ST candidates. The answer sheets must have been sent for checking with the criteria as was existing on the date of selection/examination i.e. 25.6.2011 and in the mid way, if rule is amended, it cannot be applied retrospectively unless specifically provided. Law on the issue is well settled that a subordinate legislation cannot be applied retrospectively unless specifically provided for its retrospective effect. In the aforesaid background, if the amended rule of 5.7.2011 is not applied to the recruitment of the year 2008, that too, for the vacancies prior to 10.10.2002, action of the respondents cannot be said to be illegal. 5. Second issue is as to whether requirement to obtain minimum qualifying marks is provided only for compulsory papers leaving the paper pertaining to the accounts. For the aforesaid purpose, reference of Rule 22 of the Rules of 1963 is relevant, which is quoted hereunder for ready reference:- 22. Qualifying marks at the Examination- Candidates who have obtained minimum of 35% marks in each of the compulsory subjects and minimum of 40% marks in the aggregate in the competitive examination shall be considered to have obtained qualifying marks at the examination. The Commission may in its discretion award grace marks upto one in each of the compulsory papers and upto three in the aggregate: Provided that grace marks awarded by the Commission shall not be added in the total marks for merit and shall be for the purpose of qualifying a person for recommendation by the Commission for appointment." Perusal of Rule 22 shows that requirement of minimum qualifying marks in each paper is only for compulsory subjects and otherwise 40% in aggregate is required. The rule has not been challenged by the petitioner to say that it should be declared unconstitutional for want of requirement of minimum qualifying marks even for the optional papers. In the aforesaid background, this Court has to go as per the statutory provisions exist and rules provides 35% minimum qualifying marks in compulsory subjects. The respondents cannot be commanded with a direction to apply the said rule even for optional papers. In fact, Rule 22 of the Rules of 1963 provides 40% in aggregate for the competitive examination. In the aforesaid background, this Court has to go as per the statutory provisions exist and rules provides 35% minimum qualifying marks in compulsory subjects. The respondents cannot be commanded with a direction to apply the said rule even for optional papers. In fact, Rule 22 of the Rules of 1963 provides 40% in aggregate for the competitive examination. This is more so when Schedule appended to the Rules shows as to what are the compulsory papers and what are the option papers. In the aforesaid background, prayer of the petitioners goes contrary to the Rules, which cannot be accepted. Accordingly, the respondents cannot be directed to apply the requirement of minimum qualifying marks to each papers of optional subjects in absence of a rule to that effect. Second ground raised by the petitioner is accordingly rejected. 6. Now, comes to third issue as to whether backlog vacancies prior to 10.10.2002 can be filled from general caste candidates. Arguments of learned counsel for petitioner is that no candidate of general category should have been permitted to appear in the selection as all the posts were shown to be backlog of reserved caste. 7. I have considered the aforesaid argument in reference to the rules as well as advertisement dated 9.9.2008. Perusal of the advertisement shows that all the posts of Junior Accountant are shown to be backlog of period prior to 10.10.2002. So far as the post of Accountant is concerned, bifurcation of the vacancies prior to 10.10.2002 and subsequent is made. Aforesaid bifurcation has been made for justified reason inasmuch as prior to 10.10.2002, the rule then existing was providing appointment of general caste category against reserved vacancies of eligible candidate from the reserved caste is not available. In the aforesaid background, a general caste candidate was eligible for appointment against reserved vacancy if reserved caste candidate is not available or he has failed to qualify the selection. This was with the arrangement to carry forward such vacancy of reserved caste maximum for a period of three years. Rule 7 of the Rules of 1963 is quoted hereunder for ready reference:- "7. This was with the arrangement to carry forward such vacancy of reserved caste maximum for a period of three years. Rule 7 of the Rules of 1963 is quoted hereunder for ready reference:- "7. Reservation of Vacancies for the Scheduled Castes and Scheduled Tribes.-(1) Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. (2) the vacancies so reserved for promotion shall be filled in by "Seniority-cum-merit and merit." (3) In filling the vacancies so reserved the eligible candidates who are members of the Scheduled Castes and the Scheduled Tribes shall be considered for appointment in the order in which their names appear in the list prepared for Direct Recruitment by the Commission, for posts falling in its purview, and by the Appointing Authority in other cases, and the Departmental Promotion Committee or the appointing authority, as the case may be, in the case of promotes, irrespective of their relative rank as compared with other candidates. (4) Appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst 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 remains so unfilled shall be carried forward to the subsequent three recruitment years in total, and thereafter such reservation would lapse. Provided that there shall be no carry forward of the vacancies in posts or class/category/group of posts in any cadre of Service to which promotions are made on the basis of (Deleted) merit alone, under these Rules. 7A. Reservation of vacancies for Other Backward Classes: Reservation of vacancies for Other Backward Classes shall be in accordance with the orders of the Govt. for such reservation in force at the time of direct recruitment. In the event of non-availability of eligible and suitable candidates amongst. Other Backward Classes in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure." 8. for such reservation in force at the time of direct recruitment. In the event of non-availability of eligible and suitable candidates amongst. Other Backward Classes in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure." 8. A bare perusal of sub-rule (4) of Rule 7 of the Rules of 1963 clarifies the aforesaid position wherein it has been provided that in absence of non-availability of the eligible and suitable candidates amongst 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 would be reserved in the subsequent year. Aforesaid provision is known as `carry forward of reserved vacancy." The provision was amended with effect from 10.10.2002. Since all backlog vacancies for the post of Junior Accountant is for the period prior to 10.10.2002, thus Rule 7 (4) of the Rules of 1963 becomes applicable. In the aforesaid background, there is nothing illegal in making application by general category candidates and their appointment in case Scheduled Castes and Scheduled Tribes candidates are not available or are not found suitable for appointment. According to the petitioners, appointment of general candidate should have been made by separate exercise of selection after non-availability of reserved caste candidates and not pursuant to the advertisement dated 9.9.2008. Aforesaid argument cannot be accepted because Rule 7(4) of the Rules of 1963 nowhere provides that in case of non-availability of eligible or suitable candidates of reserved category, equivalent post should be filled from general category by separate process of selection rather if argument of learned counsel for petitioners is accepted, it will result in multiplying the process of selection unnecessarily and if curtailed, it cannot be said to be illegal, rather it is in consonance with the rules. Accordingly, even third argument raised by learned counsel for petitioners cannot be accepted. 9. In view of the discussions made, the writ petition found devoid of merit is dismissed in limine. This disposes of stay application also.