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2018 DIGILAW 85 (RAJ)

Kailash Banjara v. State of Rajasthan

2018-01-05

ARUN BHANSALI

body2018
ORDER : Arun Bhansali, J. Though no reply to the writ petition has been filed, learned counsel for the respondents submits that the stand of the respondents is reflected in reply to the notice (Annex.7) and, therefore, the writ petition may be finally heard and decided. 2. This writ petition has been filed by the petitioner aggrieved against the order dated 23/5/2016 (Annex.6) passed by the respondents, whereby, the persons named therein have been promoted from the post of Assistant Forester to the post of Forester against the vacancies of the year 2016-17. 3. The petitioner was initially appointed on the post of Forest Guard in the respondent Department as a Scheduled Caste category candidate on 6/2/1982; he was promoted to the post of Assistant Forester on 31/8/2010. As Assistant Forester, the petitioner was eligible for promotion to the post of Forester in terms of Rajasthan Forest Subordinate Service Rules, 1963 ('the Rules'), wherein, the criteria is seniority-cum-merit. The respondent No. 3 issued a seniority list of Assistant Forester (Annex.4) and in the said seniority list the name of the petitioner appears at serial No. 3, whereas, the name of respondent No. 5 appears at serial No. 10, as the dates of appointment and promotion of the petitioner are 10.2.1982/1.8.2010, whereas that of respondent No. 5 are 22.12.1983/15.12.2012. 4. It is alleged that the respondents ignoring the claim of the petitioner for promotion vide order dated 23/5/2016 (Annex.6) have promoted the respondent No. 5 on the post of Forester from the post of Assistant Forester. When the petitioner questioned the non-grant of promotion by way of notice through counsel, vide Annex.7 it was informed that presently the Department is having adequate Scheduled Caste candidates on the post of Forester and, therefore, the petitioner has not been considered for promotion as he would be considered for promotion only against the vacancy of Scheduled Caste category when the same falls vacant. 5. 5. It is submitted by learned counsel for the petitioner that the action of the respondents is ex facie illegal inasmuch as the petitioner is admittedly senior to respondent No. 5, who has been accorded promotion by the impugned order and irrespective of the category to which the petitioner belongs, as the petitioner falls in seniority he was bound to be considered for promotion to the post of Forester against the vacancies of the year 2016-17, therefore, the order impugned deserves to be quashed and set aside. 6. Reliance was placed on the judgment of this Court in case of Sohan Lal Verma & Anr. v. Board of Revenue, Rajasthan, Ajmer : S.B. Civil Writ Petition No. 2325/2013 decided on 6/5/2014 at Jaipur Bench. 7. Learned counsel for the respondent Department supported the order impugned. It was submitted that as the petitioner belongs to Scheduled Caste category and as there was no vacancy in the said category in the cadre of Forester, the petitioner was rightly refused promotion to the said post of Forester. However, it is denied that the petitioner is senior to respondent No. 5. Learned counsel appearing for the respondent No. 5 adopted the submissions made by learned counsel for the State and submitted that the writ petition deserves to be dismissed. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. As noticed hereinbefore, there is no dispute between the parties that the petitioner is senior to respondent No. 5 and is otherwise eligible for being promoted from the post of Assistant Forester to the post of Forester against the vacancies of the year 2016-17, however, the respondents have denied promotion to the petitioner despite seniority though the criteria for promotion is seniority-cum-merit, only on account of the fact that as there was 16% reservation for Scheduled Caste category, the promotion could only be given as per the said percentage and even though the petitioner comes in seniority but as already more candidates of the reserved category have been promoted, the same cannot be done and it is only by way of creating supernumerary post that promotion can be given and the person can be adjusted. 10. 10. The said stand taken by the respondents is ex facie incorrect inasmuch as once the criteria is seniority-cum-merit and the petitioner is senior and fulfills the merit criteria and otherwise eligible to be promoted on his own strength without seeking reservation, the same cannot be denied to him merely because he belongs to a reserved category. 11. This Court in the case of Sohan Lal Verma (supra) after relying on the judgment in the case of Indra Sawhney v. Union of India : AIR 1993 SC 477 , R.K. Sabharwal v. State of Punjab : (1995) 2 SCC 745 and several other judgments came to the following conclusion: "Critical analysis of the law referred so discussed would show the underlying philosophy of reservation made in favour of SC, ST and OBC with reference to Article 15(4) and 16(4) of the Constitution of India. These provisions confer certain benefits on the persons belonging to these categories which are in substitution of any other right, which may be otherwise available to them as citizens of country. Benefit of reservation does substitute or supplant any other right of a person belonging to SC, ST and OBC. Such benefit would be in addition to an already existing right including the fundamental right of equality. If any scheme of reservation or the procedure evolved with a view to giving effect to such scheme, is made to depend upon the condition of truncating the fundamental or any other right of an individual, such scheme of reservation would be contrary to the constitutional provisions and the law, to the extent it curtails fundamental right or any other right of a person belonging to such category would be liable to be declared illegal. Reserving certain posts for different groups of the community in the first instance means that these posts are meant for members belonging to such specified group. This is an additional benefit conferred on them. On account of such additional benefit however they are precluded from claiming ordinary benefits otherwise available to them. Members belonging to SC, ST and OBC for whom reservation of posts is made are reserved for these posts although its converse is true. They cannot be asked to occupy only reserved posts. They would be free to occupy any posts including unserved posts. Members belonging to SC, ST and OBC for whom reservation of posts is made are reserved for these posts although its converse is true. They cannot be asked to occupy only reserved posts. They would be free to occupy any posts including unserved posts. However, the requirement of law is that while claiming appointment against unserved posts, they should prove their merit like any other citizen, who is entitled to the benefit of reservation. No provision of law whether substantive or procedural, can be so interpreted as to run country to this basic tenet of the Constitution of India. What are often described as general posts, to borrow the expression used by their Lordships in Indra Sawhney, were in fact "in the open competition filed." The Supreme Court referred them to "non-reserved posts". They can also be called as unreserved posts. Examined in the light of the settled proposition of law as discussed above, it must be held that the respondents have misapplied the law of reservation. Petitioners had the right to be considered for promotion against unreserved posts. They cannot confine the right of the candidates of Scheduled Caste category of consideration for promotion on the basis of seniority-cum-merit only against the posts reserved for Scheduled Caste. Right to consideration for promotion cannot be denied to petitioners only because the vacancies meant for their category stood exhausted or that no vacancy in their category (SC) was available. Such a procedure negates their fundamental right to consideration as envisaged in Articles 14 and 16 of the Constitution of India. Upshot of the above discussion is that action of the respondents in considering candidature of the petitioners for promotion against the posts of unreserved category, is declared illegal and unconstitutional." (emphasis supplied) 12. The above judgment of this Court applies on all force to the circumstances of the present case and as such the action of the respondents cannot be sustained. 13. In the result, the writ petition filed by the petitioner is allowed, the respondents are directed to consider the case of the petitioner for promotion as per his seniority and if he is found suitable, the respondent are directed to promote him immediately from the date his junior (respondent No. 5) was given promotion. Needful be done within a period of three months from the date a copy of the judgment is produced before the respondents.