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2016 DIGILAW 1750 (RAJ)

Sangeeta Sharma v. State of Rajasthan

2016-12-02

SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. By way of this writ petition, the petitioner Sangeeta Sharma has approached this Court being aggrieved by the illegal omission of the respondents to provide her appointment on the post of LDC as per her merit position reflected in select list Annex. 2 dated 25.6.2014. 2. Facts in brief are that the respondent District & Sessions Judge, Bhilwara initiated an exercise for filling up vacancies of LDCs in the pay scale of Rs. 5200-20200 vide recruitment notification dated 10.3.2014. A total of 30 posts were advertised, out of which 12 were for general category. Three seats were reserved for women candidates. The distribution of vacancies as set out in the recruitment notification is as below:- ¼1½ dfu"B fyfid ¼osrueku 5200&20200 xszM is 2400 :Ik;s fjDRk in ;ksx lkekU; oxZ vuq-tkfr oxZ vuq-ttk oxZ v-fi-;- vU; :i ls l{ke ¼fu%”kDrtu½ iq:"k Ekfgyk iq:"k Ekfgyk iq:"k Ekfgyk iq:"k Ekfgyk iq:"k vFkok Ekfgyk 12 03 04 01 03 00 05 01 01 30 ¼bu inksa esa orZeku esa 25 in Li"V :Ik ls fjDr gS rFkk 05 in fnukad 10@12@2014 rd fjDr gksaxs ,oa orZeku esa 03 in vuqlqfpr tkfr o 06 in vuqlwfpr tutkfr oxZ rFkk 01 in fu%"kDrtu dk csdykWx gSA ½ 3. The petitioner applied against the general category post. The recruitment process was conducted and a list of successful candidates Annex. 2 was published as per which, the petitioner was declared to have secured 157 marks. The learned District Judge issued the select list Annex. 3 dated 10.7.2014 wherein a total of 25 persons were shown selected. The petitioner has set up a case in the writ petition that a total of 13 persons including 2 general category woman candidates (Payal Dadhich at S. No. 13 and Sonal Rathore S. No. 23) were selected in the general category. The petitioner has further asserted that as the respondents selected as many as 13 persons in general category, it was obligatory for them to have reserved 30% of these seats for women candidates. The petitioner stood at S. No. 3 in merit of general woman category and thus, stakes her claim on the third post which as per the petitioner was required to be set apart for female reservation. 4. The petitioner stood at S. No. 3 in merit of general woman category and thus, stakes her claim on the third post which as per the petitioner was required to be set apart for female reservation. 4. The respondents have filed a reply to the writ petition wherein it is pleaded that total of 11 candidates including 2 woman were given appointment in the general category whereas two general category candidates namely, Dinesh Kumar Gupta and Nakul Dev Sharma were given appointment against the seats left vacant in the ST category. It is asserted in the reply that applying 20% reservation which is provided in Rule 7(b) of the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986, only 2.4 seats were available for the woman candidates in the questioned recruitment process. The said figure is less than half in decimals, hence, upon rounding off the number of seats under woman reservation comes to 2 which were given to Payal Dadhich and Sonal Rathore who stood above the petitioner in merit. In this manner, the respondents have defended their action in not selecting and appointing the petitioner as a LDC in the questioned recruitment process. However, as regards the fact that total 13 persons were given appointment in general category, reply of the respondents is tacitly silent. 5. Mr. N.R. Choudhary, learned counsel for the petitioner relied upon the judgment rendered by Hon'ble Supreme Court in the case of Bhudev Sharma. vs. District Judge, Bulandshahr & Anr. reported in AIR 2007 SC (Supp) 1185 (1) and urged that as total of 13 persons were given appointment in the general category, by applying 20% reservation, a total of 2.6 seats would become available to women candidates. The said figure upon being rounded off to the nearest decimal comes to 3. The petitioner being the third general woman candidate in the merit list, is entitled to be appointed on the third seat. He thus urged that the writ petition should be allowed in the terms prayed for. 6. Per contra, Mr. V.K. Mathur, learned counsel for the respondents relied upon the following judgments:- (1) Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 ; (2) Union Territory of Chandigarh. vs. Dilbagh Singh & Ors. reported in (1993) 1 SCC 154 ; and (3) Aryavrat Gramin Bank. 6. Per contra, Mr. V.K. Mathur, learned counsel for the respondents relied upon the following judgments:- (1) Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 ; (2) Union Territory of Chandigarh. vs. Dilbagh Singh & Ors. reported in (1993) 1 SCC 154 ; and (3) Aryavrat Gramin Bank. vs. Vijay Shankar Shukla reported in (2007) 12 SCC 413 and urged that merely because the name of the petitioner is reflected in the select list, she does not gain an indefeasible right to be selected. However, he could not deny two facts (a) that appointment was provided to no less than 13 candidates in unreserved category and (b) that 20% of these seats should have gone to women candidates. 7. I have considered the arguments advanced at the Bar and have perused the material available on record. 8. So far as the law cited by Shri Mathur is concerned, the ratio laid down in these judgments cannot be doubted for a moment. However, after giving a respectful and thoughtful consideration to the judgments cited by Shri Mathur, I am of the firm opinion that the same have no application to the case at hand as the factual matrix involved therein is totally distinguishable from the case at hand. 9. Undisputed fact as revealed from record is that the respondents selected 13 candidates of general category in the questioned recruitment process. Thus, as per Rule 7(b) of the Rules of 1986, it was essential to reserve 20% of these 13 seats for women candidates which comes to 2.6. Upon rounding of the decimal to the nearest whole number, the figure becomes 3. The Hon'ble Supreme Court examined an exactly similar controversy in the case of Bhudev Sharma and held as below:- "3. The appellant has relied on G.O. Dated 26.08.1993 which is Annexure P-I to this appeal. That G.O. States that the U.P. Government has reserved 2 percent posts for physically handicapped persons for direct recruitment in all groups of Government services. The physically handicapped persons are those who are blind, deaf and dumb and otherwise handicapped. There were altogether 30 posts for which the selection was held. 2 percent of 30 is 0.6. Since 0.6 is more than half we round it off and hold that one out of 30 posts is reserved for physically handicapped persons. The physically handicapped persons are those who are blind, deaf and dumb and otherwise handicapped. There were altogether 30 posts for which the selection was held. 2 percent of 30 is 0.6. Since 0.6 is more than half we round it off and hold that one out of 30 posts is reserved for physically handicapped persons. Since there was no other physically handicapped person who applied, in our opinion, the appellant was entitled to the post reserved for physically handicapped person. 4. In this view of the matter, the appeal is allowed, the impugned judgment of the Division Bench is set aside and it is directed that the appellant be appointed as a Class-III Post in Bulandshahr Judgeship forthwith." 10. Therefore, it is evident that the respondents were required to select and offer appointment to a total of 3 women candidates from general category so as to give proper effect of 20% female reservation. The same admittedly was not done fairly and faithfully. The omission of the recruiting authority in failing to strictly apply the women reservation is arbitrary and violative of Article 16 of the Constitution of India. Thus, this Court has no hesitation in holding that the petitioner is entitled to stake a claim for appointment on the post of LDC in the general women category in the questioned recruitment process. 11. It may be noted here that while entertaining the writ petition, this Court had directed that one post of general category would be kept vacant for the petitioner. Thus, the petitioner being the third meritorious candidate in the general category is entitled to that post. Accordingly, it is directed that the respondents shall forthwith offer appointment to the petitioner as a LDC in the questioned recruitment process against the third seat required to be filled from unreserved women candidates. Upon document verification and other formalities being completed, the petitioner shall be appointed on the post of LDC effective from the date of appointment order Annex. 3 i.e. 10.7.2014. However, the petitioner shall be entitled to actual monetary benefits from the date she joins the post. For the prior period, she will be entitled to notional benefits only. 12. The writ petition is allowed in the above terms. 13. Stay petition also stands disposed of. 14. No order as to cost.