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2019 DIGILAW 2338 (RAJ)

State of Rajasthan v. Poonam Sharma

2019-08-29

INDERJEET SINGH, S. RAVINDRA BHAT

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JUDGMENT S Ravindra Bhat, C.J. - There is delay in filing of some of the appeals; the same is condoned. The applications under Section 5 of the Limitation Act are allowed. 2. These appeals question the correctness of a common judgment and order of a learned Single Judge, concerning the selection and appointment to the post of Senior Teacher under the Rajasthan Education Subordinate Service Rules, 1971 (hereafter called "the 1971 Rules"). 3. The brief facts of the case are that Senior Teachers recruited under the 1971 Rules are, recruited and posted in 9 different divisions. Their inter se seniority is separately maintained on division-wise basis. Their transfer from one division to another entails loss of seniority, under the Rules. Consequently, allocation of divisions assumes some importance. The State Government through a specific policy- contained in its guidelines of 04.03.2018, endeavored to introduce transparency in allocations of divisions; such exercise was to be determined on the basis of merit-cum-preference (having regard to the relative success) of the candidates in the recruitment process. This, of course, was subject to availability of vacancies in the respective divisions. 4. Complaining about denial of allocation of suitable divisions having regard to their merit and preference, at the stage of appointment as Senior Teachers, and further alleging that individuals less merited than them were assigned division preference of their choice, the respondents (hereafter "the writpetitioners" or "the aggrieved candidates") approached this Court under Article 226 of the Constitution of India. Their complaint was, in many instances, that as Meritorious Reserved Category ("MRC" hereafter) candidates, they were treated as general category candidates and consequently denied the benefit of reserved category seats in the concerned subjects, while allocation of the divisions of their choice. In short, it was submitted by them that as MRC candidates they were treated as open general category candidates and deprived of the preference of their division which was assigned instead to less merited candidates from amongst the reserved category candidates. 5. It was further argued that successful MRC candidates were placed at a distinct disadvantage compared to reserved cate- gory candidates, who found their names in the select list in the concerned reserved quota. This, according to the writpetitioners, was contrary to the decision of the Supreme Court in Dega Venkata Harsha Vardhan & Ors. Vs. Akula Ventaka Harshavardhan & Ors.,2018 SCC Online 1978 . This, according to the writpetitioners, was contrary to the decision of the Supreme Court in Dega Venkata Harsha Vardhan & Ors. Vs. Akula Ventaka Harshavardhan & Ors.,2018 SCC Online 1978 . The aggrieved candidates further argued that the guidelines of 04.03.2018 too, were overlooked when the division allocations were made, based upon the recommendations of the Rajasthan Public Service Commission (hereafter "the RPSC"). The writ-petitioners, furthermore, highlighted that the recommendations were received from the RPSC on truncated and installment basis; which resulted in a distorted picture, inasmuch as less merited candidates in various subjects were allocated their preferential choice of division, whereas meritorious candidates belonging to the reserved category (MRC) were denied such benefit in the concerned subjects. 6. The State resisted the writ petitions contending that the RPSC's recommendations were received from time to time having regard to the document verification process. It was further submitted that the MRC candidates were not placed at a disadvantage because no one could claim a right to a particular division having regard to the availability of vacancies in the concerned subjects. It was furthermore argued that the State Government was under pressure to fill the post of Senior Teachers; that cadre had witnessed a large number of vacancies and necessarily in public interest allocations had to be and were made, as soon as possible depending on receipt of recommendations. The State furthermore submitted that if within the same list of recommendations forwarded by the RPSC, discrepancies are noticed -inasmuch as the candidates lower in the list, were given preferential allotment, compared to MRC candidates who were higher in merit, and who were denied their preference- corrective action would be taken. 7. The learned Single Judge was of the opinion that the writ-petitioners' arguments were merited, as the MRC candidates, treated as general category candidates on the basis of their performance, could not have been deprived of their choice allocations given that they were more merited than the concerned reserved category candidates. The Single Judge relied on Dega Venkata Harsha Vardhan (supra). The learned Single Judge was of the opinion that the writ-petitioners' arguments were merited, as the MRC candidates, treated as general category candidates on the basis of their performance, could not have been deprived of their choice allocations given that they were more merited than the concerned reserved category candidates. The Single Judge relied on Dega Venkata Harsha Vardhan (supra). The operative directions and findings of the Single Judge are to the following effect:- "Consequently I would direct that in determining the preference of the MRC candidates for allocation of ranges/ divisions as Senior Teachers they be considered against the reserved category posts in each of the division/ range for which they have sought allocation on the basis of their inter se merit vis-a-vis other reserved category candidates. I am also of the considered view that the mere fact that the RPSC made recommendations in a truncated manner cannot give any benefit to the candidates lower in the select list or any right over those higher in merit in the select list for the purpose of allocation on the basis of their merit cum preference. Even otherwise in the course of hearing the petition/s it has transpired that the deficiencies in the verification process were rectified by the concerned higher placed selected candidates much before the order of allocation of divisions/ ranges to those lower in the merit in the select list drawn pursuant to the advertisement dated 13.07.2016. And it cannot with any plausibility be denied, as it was indeed not by Mr.- Ganesh Meena, that where in the same list of recommendations by RPSC candidates, candidates higher in merit in the respective category have been denied their preference of allocation of ranges/ divisions while those lower in the same category were given their preference in the allocation, the respondents are under an obligation to make the requisite correction in view of the selected candidates' legitimate expectation and ensure firm adherence to the State Government's own guidelines of 04.03.2018. It is no doubt true that the exercise of allocation of divisions/ ranges to Senior Teachers selected pursuant to the advertisement dated 13.07.2016 has largely been completed. It is also true that redoing of the said exercise in the whole or part as would be necessitated by strict adherence to the guidelines of 04.03.2018 would entail some amount of disruption. It is no doubt true that the exercise of allocation of divisions/ ranges to Senior Teachers selected pursuant to the advertisement dated 13.07.2016 has largely been completed. It is also true that redoing of the said exercise in the whole or part as would be necessitated by strict adherence to the guidelines of 04.03.2018 would entail some amount of disruption. That however by itself cannot suffice for this court to condone substantial contravention of the respondent-State Govern- ment's guidelines dated 04.03.2018. Law, fairness and justice not expediency has to prevail. The academic year 2018-19 has been concluded. The new academic year 2019-20 is to commence only in the month of July 2019 as stated by Mr.- Ganesh Meena, AAG. In these circumstances no serious unmanageable disruption in the coming academic calendar of the concerned schools is likely to be caused in the event the State Government were to be directed to strictly adhere to its guidelines of 04.03.2018 for allocation of ranges/ divisions to the Senior Teacher selected pursuant to the advertisement dated 13.07.2016." 8. The State argues that the impugned judgment is in serious error inasmuch as it overlooks that the questions relating to posting of successful candidates appointed pursuant to a recruitment process, are matters in the realm of pure administrative functions, where the scope of judicial review is limited and narrow. It is contended that the impugned order resulted in serious disruption of the entire select list. In this regard it is stated that cadre of Senior Teacher is maintained division-wise; reservation rules, therefore, were applicable in individual divisions. Having regard to the fact that the State is divided into 9 divisions, the determination of vacancies was done division-wise; even that was made on the basis of different subjects. Recommendations were received by the State on separate dates. In this regard the State relies upon a tabular statement, which indicates the relative dates on which the recommendations were received from the RPSC. 9. It is submitted that having regard to the large number of vacancies and the overarching public interest in ensuring that the Senior Teachers were assigned their divisions and concerned schools at the earliest possible time, allocations were made division-wise having regard to the dates on which the recommendations were received. 9. It is submitted that having regard to the large number of vacancies and the overarching public interest in ensuring that the Senior Teachers were assigned their divisions and concerned schools at the earliest possible time, allocations were made division-wise having regard to the dates on which the recommendations were received. It was contended that since no candidate has an inherent right to claim that the division of his/her choice has to necessarily be assigned to him/her, the Single Judge ought to have desisted from issuing the direction to rework the allocations. 10. Learned counsel appearing for the candidates, argued that the Single Judge correctly appreciated the guidelines. It was pointed out that the guidelines were framed as a first-time measure to introduce transparency in regard to allocation. No doubt, the RPSC's recommendations were received by the State on different dates; yet the Government ought to have ensured that the guidelines were adhered to rather than breached. The MRC candidates who performed better than other reserved category candidates were placed at a distinct disadvantage inasmuch as their preference in most instances was overlooked and candidates selected on the basis of reservation, (and also lower to the MRC candidates in merit) have managed to secure preferential allocations despite their relatively lesser merit ranking. It was submitted that the decision in Dega Venkata Harsha Vardhan (supra) was, therefore, a clear binding authority which could not have been overlooked. Analysis and Conclusions: 11. In the present cases, about 9000 vacancies were involved in the recruitment process. It was submitted that the decision in Dega Venkata Harsha Vardhan (supra) was, therefore, a clear binding authority which could not have been overlooked. Analysis and Conclusions: 11. In the present cases, about 9000 vacancies were involved in the recruitment process. The recommendations received by the State Government from the RPSC on different dates, have been complied in a tabular statement; the translated tabular statement (which includes details of the dates on which recommendations were received, having regard to the different subjects) is reproduced as below:- Subject Date of receipt of recommendation Number of candidates recommended by the Commission Date of receipt of option form Number of candidates allotted the Division Date of allotment of division Number of objected application forms Hindi 03.05.18 444 20.09.18 & 22.09.18 1643 25.09.18 25 (dated 15.10.18) 16.05.18 886 11.06.18 305 14.06.18 06 22.09.18 28 01.10.18 72 02.10.18 70 05.10.18 02 (dated 15.10.18) 09.10.18 31 25.10.18 58 02 30.10.18 05.11.18 28 (dated 14.11.18) 26.10.18 56 27.10.18 Sanskrit 05.06.18 867 20.09.18 & 22.09.18 2991 25.09.18 09 (dated 02.10.18) 11.06.18 807 14.06.18 776 22.09.18 542 In compliance of Court 15 01.10.18 270 02.10.18 258 05.10.18 12 (dated 15.10.18) 09.10.18 46 25.10.18 78 21 30.10.18 06.11.18 38 (dated 14.11.18) 26.10.18 92 27.10.18 General Science 27.03.18 1627 31.03.18 1618 12.04.18 24 (dated 02.04.18) 03.04.18 14 04.04.18 05.04.18 01 06.04.18 08 (dated 02.10.18) 19.04.18 03 19.04.18 03 19.04.18 19.04.18 304 27.09.18 386 30.10.18 08 (dated 02.10.18) 16.05.18 93 11.06.18 05 In compliance of Court 11 19 (dated 15.10.18) 01.10.18 95 03.10.18 92 05.10.18 03 (dated 15.10.18) 09.10.18 35 25.10.18 67 30.10.18 38 (dated 14.11.18) 26.10.18 70 27.10.18 English 09.04.18 644 27.09.18 824 29.09.18 04 (dated 24.09.18) 05 (dated 02.10.18) 10 (dated 15.10.18) 11.04.18 01 19.04.18 57 24.04.18 02 16.05.18 109 11.06.18 20 In compliance of Court 05 01.10.18 18 03.10.18 15 05.10.18 02 (dated 15.10.18) 09.10.18 05 25.10.18 14 30.10.18 06.11.18 23 (dated 14.11.18) 26.10.18 32 27.10.18 Maths 19.04.18 401 27.09.18 536 29.09.18 04 (dated 24.09.18) 05 (dated 02.10.18) 10 (dated 15.10.18) 18.05.18 115 11.06.18 04 In compliance of Court 37 01.10.18 21 03.10.18 16 26.10.18 36 27.10.18 07 05 30.10.18 06.11.18 24 (dated 14.11.18) Science 15.03.18 231 16.03.18 233 02.04.18 08 (dated 02.04.18) 05.04.18 30 12.04.18 30 16.04.18 19.04.18 06 27.09.18 15 30.09.18 03 (dated 24.09.2018 ) 18.05.18 07 11.06.18 02 14.06.18 01 In compliance of Court 02 01.10.18 08 03.10.18 07 05.10.18 06 (dated 14.11.18) 09.10.18 01 25.10.18 06 30.10.18 10 27.10.18 04.04.18 01 (dated 03.04.18) Urdu 20.03.18 38 22.03.18 37 04.04.18 01 (dated 03.04.18) 19.04.18 08 27.09.18 12 29.09.18 18.05.18 04 01.10.18 01 03.10.18 01 05.10.18 26.10.18 03 27.10.18 01 30.10.18 02 (dated 14.11.18) Punjabi 13.03.18 25 - 25 02.04.18 - 12. The translated guidelines of 04.03.2018, are extracted below:- "GOVERNMENT OF RAJASTHAN Education (Group-2) Department No. - Pa.17(7) Shiksha-2/2016 Jaipur, Dated : 04/03/2018 Director, Secondary Education, Rajasthan, (41 of 47) [SAW-815/2019] Bikaner Subject: Guidelines regarding posting of senior teachers selected through direct recruitment. Sir, With reference to above Cited subject matter, I am directed to state that the guidelines for posting of senior teachers selected through direct recruitment are as follows - A. Process of Allocation of Division Candidates equal to the number of posts advertised division wise will be allotted to that division by the Director, Secondary education Rajasthan Bikaner. Vacancies (Without reservation) of the subject of senior teachers are counted division wise. Thus, the Category wise (General/reserved categories- wise(Women /SC/ST/OBC/NBC/PH/Ex Servicemen/Widow/divorcee etc.) division will be allotted as per the priority of the division given by the Candidates on the basisof categorywise merit in accordance with the number of posts advertised. B. Process of posting at divisional level after allocation of division 1. The process of selection of Vacant posts of related subjects for posting The clear Vacancies for posting of selected Candidates made available to the Division will be determined district-wise in proportion to the numbers of Vacancies clearly available to the senior teacher of the subject concerned in all the districts of the Division. 2. For Counseling of the Candidates available to the Division with regard to posting, schools in proportion to the Vacancies available district-wise will be displayed as under :- (i) Secondary schools/ Higher secondary Schools with vacancies of subjects relating to senior teachers having more than 50% of the academic post vacant (in decreasing order of enrollment from class 9 to class 10) (ii) If the number of schools available in point number (i) is less than the number of candidates, then Secondary Schools/ Higher secondary schools with vacant post of concerned subjects of senior teachers (in decreasing order of enrollment from class 9 to class 10) (iii) If the number of schools available in point number (i) and (ii) is less than the number of candidate then Up- (42 of 47) [SAW-815/2019] per primary school with vacant posts of subjects pertaining to senior teacher (in decreasing order of enrollment from class 1 to class 8) 3. The posting will be made only on the clearly vacant post. 4. For TSP appointment, compliance of the provisions of the TSP appointment rules should be ensured. 5. The posting will be made only on the clearly vacant post. 4. For TSP appointment, compliance of the provisions of the TSP appointment rules should be ensured. 5. Determination of the order of seniority for posting of the senior teachers selected by the direct recruitment is as under:- (i) More than 40% of specially abled candidates (in order of merit of Rajasthan Public Service Commission) (ii) Widow and Divorcee women (in order of merit of Rajasthan Public Service Commission) (iii)Women candidates (in order of merit of Rajasthan Public Service Commission) (iv) Other remaining candidates (in order of merit of Rajasthan Public Service Commission) 6. List of vacancies prepared by Deputy Director, Secondary Education as per sub-point Number 1, 2 and 3 of the point number(B) and priority list prepared as per point Number 5 will be published on departmental website and on the office notice board and counseling camp will be held in order of preference prescribe in the priority list. 7. Order for posting of selected vacancies in the counseling camp will be issued by the personal on the day of the camp and will be published on the website and office notice board. 8. The senior teachers, who will be absent in the process of counseling, their order of posting will be issued on the day of camp itself from the vacancies published by the Deputy Director, Secondary Education and will be published on the website and office notice board. 9. Orders should be issued after proper scrutiny of all the available vacancies and after checking correct details and whereabouts of the personnel, no errors. In case of institutional errors, departmental enquiry against the concerned may be ensured. Sd/ Deputy Director" 13. The issue of giving weightage and- as far as possible- giving effect to the preference of a candidate who secures a high ranking in the merit list, while allocating a cadre (much in the same manner as the allocation of the preferred division, as in this case), was a subject matter of a Constitution Bench ruling of the Supreme Court in Union of India Vs. Ramesh Ram & Ors., (2010) 7 SCC 234 . In that decision, the Court resolved the conflict between different judgments. Ramesh Ram & Ors., (2010) 7 SCC 234 . In that decision, the Court resolved the conflict between different judgments. The question was whether a merited reserved category candidate (MRC), pushed up into the general category merit list and treated as an open merit candidate, can be placed at a disadvantageous position vis-a-vis a reserved category candidate in regard to allocation of cadre, especially when the less merited candidate is granted the cadre of his/her choice. The Supreme Court observed as follows:- "32. There is an obvious distinction between qualifying through an entrance test for securing admission in a medical college and qualifying in the UPSC examinations since the latter examination is conducted for filling up vacancies in the various civil services. In the former case, all the successful candidates receive the same benefit of securing ad- mission in an educational institution. However, in the latter case there are variations in the benefits that accrue to successful candidates because they are also competing amongst themselves to secure the service of their choice. For example, most candidates opt for at least one of the first three services [i.e. Indian Administrative Service (IAS), Indian Foreign Service (IFS) and Indian Police Service (IPS)] when they are asked for preferences. A majority of the candidates prefer IAS as the first option. In this respect, a Re- served Category candidate who has qualified as part of the general list should not be disadvantaged by being assigned to a lower service against the vacancies in the General Category especially because if he had availed the benefit of his Reserved Category status, he would have got a service of a higher preference. With the obvious intention of preventing such an anomaly, Rule 16 (2) provides that an MRC candidate is at liberty to choose between the general quota or the respective Reserved Category quota. *********** 36. We must also take note of the fact that when MRC candidates get adjusted against the Reserved Category, the same creates corresponding vacancies in the General Merit List (since MRC candidates are on both lists). These vacancies are of course filled up by general candidates. Likewise, when MRC candidates are subsequently adjusted against the General Category [i.e. without availing the benefit of Rule 16 (2)], the same will result in vacancies in the Reserved Category which must in turn be filled up by Wait Listed Reserved Candidates. These vacancies are of course filled up by general candidates. Likewise, when MRC candidates are subsequently adjusted against the General Category [i.e. without availing the benefit of Rule 16 (2)], the same will result in vacancies in the Reserved Category which must in turn be filled up by Wait Listed Reserved Candidates. Moreover, the operation of Rule 16 does not result in the ouster of any of the candidates recommended in the first list. Many of the wait-listed candi- dates are accommodated in the second stage, and the relatively lower ranked wait-listed candidates are excluded. It is pertinent to note that these excluded candidates never had any absolute right to recruitment or even any expectation that they would be recruited. Their chances depend on how MRC candidates are adjusted. 37. In the impugned judgment, the High Court had reasoned that allocation to a particular post cannot be distinguished from allocation to a service for the purpose of reservation. However, the High Court had not considered the fact that in the CSE examination, the candidates are not competing for similar posts in one service but are instead competing for posts in different services that correspond to varying preferences. 38. Furthermore, the impugned judgment did not appreciate the possibility that when an SC/ST/OBC candidate qualifies on merit (i.e. without any relaxation/concession) there can be a situation where a lower ranked OBC candidate gets allotted to a better service in comparison to a higher ranked SC/ST/OBC candidate sim- ply because the higher ranked OBC candidate performed well enough to qualify in the General Category. Such a situation is anomalous. As we have already discussed, the High Court's reliance on the decision of this Court in Union of India v Satya Prakash (supra.), is not tenable since it dealt with the effect of Rule 16 (2) as it existed prior to the amendment notified on 4.12.2004. *********** 72. We sum up our answers-: (i) MRC candidates who avail the benefit of Rule 16 (2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the General Pool will be offered to General category candidates. (ii)..... (iii)..... We sum up our answers-: (i) MRC candidates who avail the benefit of Rule 16 (2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the General Pool will be offered to General category candidates. (ii)..... (iii)..... (iv) The reserved category candidates "belonging to OBC, SC/ ST categories" who are selected on merit and placed in the list of General/Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of the Constitution." 14. In the light of the ruling in Ramesh Ram (supra), it is no longer open to the State to contend that allocation of cadre or division, according to the preference sought from candidates, at the initial stage of the recruitment process, is a pure administrative matter. What is in issue is the fairness of the process of allocation. 15. The peculiar condition that the State finds itself in today, is because it proceeded to make final allocations of the divisions having regard to the available materials, i.e. recommendations received at different times, from RPSC and the vacancy position that was available at the time of receipt of such recommendations. There is some merit in the State's submission that posting orders of the selected candidates could not have been withheld to await receipt of recommendations to all the posts. Public interest of course, dictated that the teachers recruited be assigned duties as early as practically feasible. Yet, that did not mean that final allocations had to be made at the stage of assigning duties. No doubt, the cadre of Senior Teachers is maintained divisionwise. Yet, the recruitment was by a common process; the rules applicable were the same and the procedure adopted too was the same. This meant that if there were some delays in forwarding recommendations, the allocations of concerned divisions had to be made finally. Until the entire picture emerged with regard to recommendation of candidates, the State could have well made provisional cadre allocations, which could have been finalized, after all recommendations had been received. This meant that if there were some delays in forwarding recommendations, the allocations of concerned divisions had to be made finally. Until the entire picture emerged with regard to recommendation of candidates, the State could have well made provisional cadre allocations, which could have been finalized, after all recommendations had been received. In such latter event, the State would have been able to ensure that MRC candidates had a choice to seek the division which they wanted, given their relative merit ranking. In such an event, by application of the rule indicated in Para 72 (iv) of the judgment in Ramesh Ram (supra), MRC candidates would have been provided with a choice of being treated as those belonging to the general category, or being treated as reserved category candidates. 16. In the light of the above discussion, the Court is of opinion that the findings and conclusions recorded by the Single Judge are reasonable. The following directions are consequently issued: (a) The State shall issue a circular/order within four weeks, expressly stating that cadre allocations (to different divisions) made are only provisional and that such allocations would be made finally in a time bound manner, to be clearly indicated in such an order or circular; (b) Await the receipt of all recommendations for 3 months and thereafter take up the process of determination of cadre allocations, in accordance with the rules and circulars applicable and complete such cadre allocations within 6 months from today; (c) The State is further directed that cadre allocations made finally pursuant to the above directions, shall not be treated as transfers, but instead as revised initial postings of the concerned teachers. (d) The circular issued pursuant to the above directions shall also mention that it has been issued pursuant to the present order. 17. The State's appeals therefore have to fail. They are according , subject to the above directions.