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2015 DIGILAW 1968 (RAJ)

Jaswant Singh v. The State of Rajasthan

2015-11-27

VEERENDR SINGH SIRADHANA

body2015
JUDGMENT 1. - List of successful candidates drawn and result declared on 25th April, 2012, applying reservation policy contrary to the law declared by the Hon'ble Apex Court of the land in the case of Jitendra Kumar Singh and Another v. State of Uttar Pradesh and Others: (2010) 3 SCC 119 ; has resulted into non-selection of the petitioner, and therefore, he has instituted the present writ application, praying for the following relief(s): "a. Issued a writ order of direction in the nature thereof thereby to direct the respondent to consider the petitioner as eligible candidate for the post of LDC and he may be allowed to appoint on the post of LDC at District and Session Court Jhalawar. b. Issued a writ order or direction to set aside the entire process of selection on the post of LDC in District and Session Court Jhalawar. c. Issue an order or direction which this Hon'ble Court deems fit and proper may kindly be passed in favour of the petitioner. d. Any other appropriate order or direction which this Hon'ble Court may deem fit and proper in favour of the petitioner may kindly be passed with cost." 2. Shorn off unnecessary details, the skeletal material facts essential for appreciation of the controversy raised are that the petitioner, in response to an advertisement dated 10th January, 2012, submitted his application for consideration of his candidature for appointment to the post of Lower Division Clerk (LDC) in the District & Sessions Court of Jhalawar, against the quota reserved for Other Backward Classes (OBC). On the conclusion of the recruitment process, the list of successful candidates was drawn and declared on 25th April, 2012, wherein the name of the petitioner finds place at serial No. 17. 3. It is pleaded case of the petitioner that two candidates belonging to OBC category, namely Firoj Khan and Shiv Prasad, who have scored 184 and 179 marks, respectively, which are far more than scored by the last candidate selected in the General category, i.e. 154, ought to have been considered in the General/Open Category and could not have been counted towards reserved quota for OBC. 4. Learned counsel for the petitioner, Mr. Manoj Bhardwaj, reiterating the pleaded facts and grounds of the writ application, emphatically argued that the petitioner secured 167 marks and stood at serial No. 17 of the merit list. 4. Learned counsel for the petitioner, Mr. Manoj Bhardwaj, reiterating the pleaded facts and grounds of the writ application, emphatically argued that the petitioner secured 167 marks and stood at serial No. 17 of the merit list. According to the learned counsel, the respondents applied the reservation policy contrary to the law declared by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra), for the successful candidates, who got selected on their own merit i.e. Firoj Khan and Shiv Prasad, have been counted towards reserved quota, owing to the fact that they had availed the concession in relaxation of age alone. 5. It is further contended that the petitioner is the first candidate with the highest marks in the OBC category but has been deprived of appointment, owing to wrong application of reservation policy, while including the candidates, who have been selected on their own merit in the quota of reservation for OBC category, and therefore, the matter needs interference of this Court. 6. In response to the notice of the writ application, the respondents have filed their counter affidavit supporting the action in applying the reservation policy in accordance with the recruitment rules for the candidates belonging to the OBC category namely, Firoj Khan and Shiv Prasad, were accorded age relaxation. 7. Mr. Rishipal Agarwal, Addl. Govt. Counsel for the State-respondents, reiterating the stand in the counter affidavit, asserted that as per Rule 9 of the Rajasthan Subordinate Courts Ministerial Establishment Rules 1986 (Amended 2010), the minimum and maximum age of the applicant has been provided as 18 and 35 years respectively. On the cut-off date i.e. 31st January, 2012, Firoj Khan was over age as his age was 36 years, 6 months and 20 days. Similarly, another candidate namely Shiv Prasad was 35 years, 7 months and 28 days of age on 31st January, 2012. Thus, both the candidates who had availed of relaxation of age, were rightly considered against the quota reserved for OBC. 8. I have heard the learned counsel for the parties and with their assistance perused the materials available on record. 9. Indisputably, the petitioner participated in the selection process and was declared successful. His name found place at serial No. 17 in the list of successful candidates. 8. I have heard the learned counsel for the parties and with their assistance perused the materials available on record. 9. Indisputably, the petitioner participated in the selection process and was declared successful. His name found place at serial No. 17 in the list of successful candidates. It is also not disputed that Firoj Khan and Shiv Prasad, who too were successful and their names found place at serial No. 2 and 4 in the merit list did score more marks than the last candidate in the General category i.e. Bhagwan Sahay Sharma, who scored 177 marks. 10. The controversy raised herein is no more res-integra in view of the law declared by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra), while dealing with somewhat same issue, the Hon'ble Supreme Court, held thus: "49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16 (1)of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates at par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates. 50. It has been recognised by this Court in the case of Indra Sawhney that larger concept of reservation would include incidental and ancillary provisions with a view to make the main provision of reservation effective. In Indra Sawhney, it has been observed as under: "743. The question then arises whether Clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question, it is well to examine the meaning and content of the expression "reservation". Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are "any provision for the reservation of appointments or posts". Before we answer this question, it is well to examine the meaning and content of the expression "reservation". Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are "any provision for the reservation of appointments or posts". The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration-the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour." (emphasis in original)In our opinion, these observations are a complete answer to the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on behalf of the petitioners. 51. We are further of the considered opinion that the reliance placed by Mr. Rao and Dr. Dhawan on the case of K.L. Narsimhan(supra) is misplaced. Learned Sr. Counsel had relied on the following observations: 5. ...Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate. The aforesaid lines cannot be read divorced from the entire paragraph which is as under: 5. It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate." These observations make it clear that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate. 52. In the present case, the concessions availed of by the reserved category candidates in age relaxation and fee concession had no relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid Judgement in fact permits reserved category candidates to be included in the General Category Candidates on the basis of merit. 75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned Counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfil the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open competition." 11. Learned counsel for the State-respondents could not point out any contrary view to one referred to and relied upon in the case of Jitendra Kumar Singh (supra), the law declared by the Hon'ble Supreme Court. The two candidates who have been selected and counted against quota for OBC namely Firoj Khan and Shiv Prasad, ought to have been considered in the open category. 12. For the reasons and discussions herein above as well as in view of the law declared by the Hon'ble Supreme Court, the writ application merits acceptance. 13. Consequently, the writ petition succeeds and is hereby allowed. 14. The respondents are directed to consider the case of the petitioner for appointment to the post of LDC in the Judgeship of Jhalawar, if he is otherwise eligible. The petitioner will be entitled to all consequential benefits on notional basis and no monetary benefits shall be payable to him. 15. The respondents are directed to ensure the compliance of this order within two months from the date of receipt of a certified copy.Writ Petition Allowed. *******