Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 929 (RAJ)

Prabha Awasthi v. State of Rajasthan

2018-04-05

DINESH CHANDRA SOMANI, M.N. BHANDARI

body2018
JUDGMENT M.N. Bhandari, J. - The Rajasthan Public Service Commission (RPSC) issued an advertisement on 28.02.2008 to call for applications for the post of Junior Marketing Officer (JMO). Initially, 84 posts were advertised, out of which, 21 posts were kept for Marketing Supervisors and Ministerial Staff against 25% post meant for them. The remaining posts were for open market candidates. The reservation to SC, ST and OBC candidates against the post meant for Marketing Supervisors and Ministerial Staff was also provided. The RPSC subsequently issued a corrigendum to reduce the posts from 84 to 79 and the posts meant for Marketing Supervisor and Ministerial Staff from 21 to 19. The petitioner preferred writ petition when out of 19 posts meant for Marketing Supervisor and Ministerial Staff could not be filled, rather, 10 posts remained vacant. The majority of such Posts were belonging to the Scheduled Tribe, OBC and Scheduled Castes. The prayer was made to give appointment from an amongst open market candidates as departmental candidates are not available to fill 25% post meant for them. When the respondents did not accept the prayer made by the appellant, the writ petition was filed. 2. Learned counsel for the appellant submits that proper interpretation of para 7 of the advertisement and the Rules has not been taken. Para 7 as well as Schedule appended to the Rules provide for reservation on the post of JMO for Marketing Supervisors and Ministerial Staff. Since the word "reservation" has been used in the Schedule appended to the Rules as well as in para 7 of the advertisement, it is to be arranged horizontally. In case of non-availability of reserved category candidates, it should have been filled by normal procedure as no provision for carry forward of the post exist. The respondents have failed to take proper interpretation of the Rules. Accordingly, lift out 10 posts should be given to the open market candidates. To support the argument, reference of the judgment in the case of Surendra Narain Singh & Ors. versus State of Bihar & Ors. (1998) 5 Supreme Court Cases 246 and K.N. Sreenivasan versus Flag Officer Commanding-in-Chief, Headquarters, Kochi & Ors. (1996) 7 Supreme Court Cases 73 has been given. In the cases referred above, the candidates from reserved category were not available, thus ordered to be filled by normal procedure. 3. versus State of Bihar & Ors. (1998) 5 Supreme Court Cases 246 and K.N. Sreenivasan versus Flag Officer Commanding-in-Chief, Headquarters, Kochi & Ors. (1996) 7 Supreme Court Cases 73 has been given. In the cases referred above, the candidates from reserved category were not available, thus ordered to be filled by normal procedure. 3. The respondents have failed to follow the Rajasthan Subordinate Service (Recruitment and other Conditions) Rules, 2001 as they have failed to make appointment by normal procedure against the fill left out post. The prayer is to allow the appeal with grant of prayer since the petitioner appellants are in the merit thus a direction for their appointment be given against the vacant posts. 4. We have considered submissions made by learned counsel for the petitioner-appellants and perused the record. 5. Learned counsel for the petitioner-appellant has made emphasis on para 7 of the advertisement coupled with Schedule appended to Rules of 2001 to show that out of the total posts of JMO to be filled by direct recruitment, 25% of the posts were reserved for Marketing Supervisors and Ministerial Staff of the Department. According to him, reservation is to be applied horizontally because social reservation is meant for Scheduled Castes, Scheduled Tribes and OBC and is arranged vertically. To clarify the factual and legal position, it would be gainful to quote schedule appended to the Rule on which much emphasis has been made by the learned counsel for petitioner-appellant. STATE AGRICULTURE MARKETING DEPARTMENT SECTION Marketing Junior Marketing Officers/Secretary Market Committees 50% 50% B.A. with Economics as one of the subjects of B.Com or B.Sc (Agriculture) of University established by law in India. Marketing Supervisors 5 years experience on the post mentioned in Column No. 6 1. After promoting all the Marketing supervisors the post shall be filled in by direct recruitment. - - - - 2.25% of the post of direct recruitment quota shall be reserved for being filled in from amongst the Marketing Supervisors and Ministerial Staff of the Department and Asstt. Secretories Marketing Supervisor & Ministerial Committees of the Marketing Committees subject to their possessing qualification mentioned in Column No. 5 and other conditions as laid down in Rules. 6. The Rules provide that out of total posts of Junior Marketing Officer, 25% to be filled from and amongst Marketing Supervisor and Ministerial Staff. Secretories Marketing Supervisor & Ministerial Committees of the Marketing Committees subject to their possessing qualification mentioned in Column No. 5 and other conditions as laid down in Rules. 6. The Rules provide that out of total posts of Junior Marketing Officer, 25% to be filled from and amongst Marketing Supervisor and Ministerial Staff. It is, no doubt, true that the word "reservation" has been used however, it is nothing but substitution of word "quota". The reservation to the post can be provided in consonance to the constitution and not dehors to it. Article 16(4) of the Constitution provide for reservation for socially backward classes and not for departmental candidates. The reservation can not be provided in violation of Article 16(2) of the Constitution of India, where equality in the public employment is given. 7. The Rule reserve 25% post of JMO for Marketing Supervisor and Ministerial Staff. It is nothing but division of post in two categories which are open market candidates and departmental candidates. The division of the post are generally made between promotees and direct recruitees. It can be in similar manner between open market candidates and the departmental candidates. In such cases, it is nothing but division of posts with the quotas. Para 7 of the advertisement is in conflict with the Rules. It provides for horizontal reservation for departmental candidates which includes reserve caste candidates. It is opposed to the Rule and settle principle lay down by the of Courts on the reservation. The social reservation is vertial thus cannot be made horizontally. As per Para 7 of the advertisement, petitioner has prayed for transfer of post from one quota to another i.e. form departmental candidates to open market candidates through Para 7 of the advertisement can not be applied in conflict with the Rules, rather, it has to be read in consonance to the Rule. 8. Learned counsel for the appellant could not refer rule for interchange of the post reserved for departmental candidates with the open market candidates. It is, however, submitted that when rule is silent, interchange should be permitted. We are unable to accept the aforesaid argument. It would otherwise violate the quota Rule as 25% post are reserved for departmental candidates. 9. Learned counsel for the appellant could not refer rule for interchange of the post reserved for departmental candidates with the open market candidates. It is, however, submitted that when rule is silent, interchange should be permitted. We are unable to accept the aforesaid argument. It would otherwise violate the quota Rule as 25% post are reserved for departmental candidates. 9. If it is assumed that certain posts were reserved for marketing Supervisor and Ministerial Staff with further benefit of reservation in favour of SC, ST and OBC then question would be as to how the post to be filled in case of nonavailability of reserved caste candidates amongst departmental candidates. Para 7 of the advertisement provides for filing of the post by normal procedure though not provided in the Rule. As and when a rule provides for filling of the post by normal procedure in case of nonavailability of reserved caste candidates, it means it will go to the open category candidates not to open market candidates. The Rule cannot be construed to mean that the posts specifically kept for Marketing Supervisor and Ministerial Staff can be diverted to the open market candidates. In case of nonavailability of reserved category candidates against the posts meant for Marketing Supervisor and Ministerial Staff, it can be filled from open category candidates of Marketing Supervisors or Ministerial Staff but not from open market candidates, as claimed by the petitioners. There is no provision for transfer of post meant for departmental candidates to open market candidatess. In the light of the interpretation given above, the judgment referred by the counsel for the petitioners in the case of Surendra Narain Singh (surpa) has to be considered. 10. The judgment aforesaid was on different set of rules. It was not a case of bifurcation of the post between different categories like the present case. In this case, posts have kept for open market candidates and departmental candidates i.e. for Marketing Supervisor and Ministerial Staff. We have already given interpretation to the use of word "reservation" in the context of the post kept for departmental candidates. In view of the above, judgment (supra) can not apply to the facts of the case, which are distinguishable. 11. Other judgment is in the case of K.N. Sreenivasan (supra). In that case, promotional post meant for SC could not be filled due to non-availability of the candidates. In view of the above, judgment (supra) can not apply to the facts of the case, which are distinguishable. 11. Other judgment is in the case of K.N. Sreenivasan (supra). In that case, promotional post meant for SC could not be filled due to non-availability of the candidates. Accordingly, a direction for filling of the post from and amongst open category candidates was given. In the instant case, we have also taken the same view but after making distinction between the two quotas. One meant for departmental candidates and other for open market candidates. There is no provision for interchange of post meant for different category. We have expressed our opinion that in case of nonavailability of reserved caste candidates from and amongst 12. Marketing Supervisors and Ministerial Staff, left out posts can be filled from open category candidates if Rule provides for it but can not from open market candidates. There is distinction between open category and open market candidates i.e. the fresh candidates. 13. Learned counsel for the petitioner-appellants has even prayed for filling of the post meant for Marketing Supervisor and Ministerial Staff by arranging it horizontally. The prayer aforesaid is not acceptable. If it is taken horizontal for Marketing Supervisors and Ministerial Staff then question would be now to provide social reservation to SC, ST and OBC candidates amongst Marketing Supervisors and Miisterial Staff as social reservation is to be given vertically. The prayer aforesaid was made in reference to Para 7 of the advertisement ignoring that it is in violation of the Rules. It can not thus be read contrary to the Rule hence required to be ignored to the extent, it is in violation of the Rule. 14. To understand it properly, we need to understand difference between vertical and horizontal reservation. It has been clarified by the Apex Court in the case of Rajesh Kumar Daria versus RPSC (2007) 8 SCC 785 . Therein, the Apex Court has given illustration as to how the vertical as well as horizontal reservation has to be arranged. The social reservation i.e. for SC, ST and OBC candidates has to be arranged vertically, whereas horizontal is for different categories like the women, disabled and ex-serviceman etc. How the vertical and horizontal reservation is to be arranged has been illustrated in reference to the reservation meant for women. The social reservation i.e. for SC, ST and OBC candidates has to be arranged vertically, whereas horizontal is for different categories like the women, disabled and ex-serviceman etc. How the vertical and horizontal reservation is to be arranged has been illustrated in reference to the reservation meant for women. The horizontal reservation cut across the vertical and if a candidate claiming horizontal reservation gets post on his/her own merit in vertical reservation, then to be counted towards horizontal reservation. To illustrate, if 10 posts are meant for women candidates and equivalent number of candidates find place while preparing list of open category candidates and toward social reservation, then no post is required to be provided to them. It is further illustrated. If 10 posts are meant for women category and 8 candidates find place in the merit then only two posts would remain towards horizontal reservation for them. The formula aforesaid cannot be applied in case of division of post beetween departmental candidates i.e for Marketing Supervisor and Ministerial Staff and the open market candidates. Learned counsel for the petitioner-appellants are confused due to use of word "reservation" in the Schedule appended to the Rules and in view of para 7 of the advertisement, opposed to Rule. It has been clarified in the discussion made above. 15. In view of the discussions made above, we do not find any merit in the appeals and, accordingly, they are dismissed. 16. A copy of this order be placed in connected file.