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2019 DIGILAW 906 (RAJ)

Mamta Yadav v. State of Rajasthan

2019-03-26

DINESH MEHTA, SANGEET LODHA

body2019
JUDGMENT : DINESH MEHTA, J. D.B. S.A.W. No. 1869/2018 1. This appeal arises out of the order dated 18.07.2018 passed by learned Single Judge in a writ petition filed by Suraj Rathore (respondent No. 3 herein). Though the appellant was not a party in the writ petition, but pursuant to her application (I.A. No. 1/2019), a leave to appeal has been granted and delay has been condoned by this Court on 11.01.2019. 2. The circumstances leading the respondent no. 3 to approach this Court were that the respondent Rajasthan Public Service Commission (hereinafter referred to as ‘RPSC or Commission’) initiated recruitment for various posts of Rajasthan State and Subordinate Services, vide advertisement dated 24.08.2016. Said examination were known as Rajasthan State and Subordinate Service Combine Competitive Examination-2016 and the respondent No. 3-petitioner had participated therein as a widow candidate. It is pertinent to note that the above referred advertisement simply provided total vacant posts for different services, without giving category wise furcation and the category wise vacancy position came to be published later on 22.06.2017. According to said notification dated 22.06.2017, two vacancies for widow candidates were earmarked in the open category for Administrative Services; whereas no such reservation was provided for Police Services, Accounts Services and other services. The respondent No. 3, having cleared preliminary and main examination, appeared in interview and secured 10th merit position in her category, i.e. widow. 3. After declaration of the results on 17.10.2017, the respondent No. 3 approached this Court by way of filing a writ petition (S.B. Civil Writ Petition No. 14710/2017), with a grievance that the respondents have not earmarked posts for widows and divorcees for Rajasthan Police Services and Rajasthan Accounts Services, as mandated by the notification dated 24.01.2011, postulating reservation for widow and divorcee category candidates in all services. 4. In reply to the writ petition, the respondent RPSC contended that the respondent No. 3 had approached the Court belatedly and that the exercise sought by her cannot be undertaken at that stage, as corresponding increased number of widow candidates were not called to take written examination in terms of Proviso to Rule 15 of the Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (hereinafter referred to as ‘the Rules of 1999’). It was however maintained that the merit list/select list has been prepared as per the category wise vacancy position provided to it, by the State Government in June, 2017. 5. As far as respondent No. 1-State is concerned, it was admitted in no ambiguous terms that though vacancies for widows/divorcees were not initially shown but later on amended vacancies for such categories for each of the services had been notified to the Commission, but the respondent Public Service Commission refused to consider the same taking shelter of the Proviso to Rule 15 of the Rules of 1999. 6. This being the admitted fact-situation that the benefit of reservation, pursuant to the notification dated 24.01.2011, though available to the widow and divorcee category was not given effect to, the learned Single Judge allowed the writ petition and directed the respondents to extend benefit of notification dated 24.01.2011. The operative portion of the order dated 18.07.2018 reads thus:- “Thus, for the aforesaid reasons, the writ petition is allowed. The respondents are directed to give a fresh bifurcation while implementing Para 2 of the notification dated 24.1.2011 and give appointment to the petitioner who is a widow candidate. The category and implementation of Para 2 of the notification dated 24.1.2011 shall be as per the choice already furnished by the petitioner and shall be in accordance with the merit of selection process in question.” 7. Learned senior Counsel firstly invited Court’s attention towards notification dated 22.12.2015; which came to be filed by the appellants subsequently, with an additional affidavit dated 18.01.2019 and pointed out that the earlier notification dated 24.01.2011 has specifically been superseded and existing Rule 9 of the Rules of 1999, which was inserted vide notification dated 24.01.2011 [the Rajasthan Various Service (Amendment) Rules, 2011] has since been replaced by Rajasthan Various Services (2nd Amendment) Rules, 2015, vide notification dated 22.12.2015. Highlighting this factual and legal position, he emphasized that the direction of the learned Single Judge to apply reservation in terms of the notification dated 24.01.2011 has been rendered unenforceable. 8. In the backdrop of these facts, he contended that since the very edifice of the judgment of learned Single Judge stood obliterated, the impugned judgment based upon an already superseded notification, deserves to be quashed and set aside on this solitary ground. 9. 8. In the backdrop of these facts, he contended that since the very edifice of the judgment of learned Single Judge stood obliterated, the impugned judgment based upon an already superseded notification, deserves to be quashed and set aside on this solitary ground. 9. Learned Senior Counsel secondly argued that the learned Single Judge has erred in issuing direction to give appointment to the respondent No. 3-writ petitioner. He however maintained that at the best, a direction could have been given to consider her case for suitable appointment, after providing appropriate reservation to widow and divorcee candidates. 10. Learned Senior Counsel thereafter contended that the writ petition filed by the respondent No. 3 suffered from inordinate delay of 11 months, for which any indulgence to her was uncalled for. Elaborating his argument, learned Senior Counsel contended that the advertisement was issued on 28.04.2016, preliminary examinations were held in August, 2016 and mains were held on 27/28.03.2017, whereas the petitioner approached this Court in November, 2017, after declaration of final result. 11. Learned Senior Counsel contended that the respondent No. 3 was mindful of the vacancy position, particularly that no reservation had been provided for widow and divorcee candidates qua Police Services and Accounts Services, ever since the advertisement was issued on 28.04.2016. As such, having appeared in the written examination and visited the result, she was not justified in questioning the determination of the vacancies or purported improper representation to the widows at such belated stage, particularly when, selection process was over. 12. Learned Senior Counsel additionally submitted that a perusal of the reply of the respondents clearly shows that sufficient number of vacancies had been filled from widow category candidates; hence, there was no occasion for the learned Single Judge to allow the writ petition and issue direction to undertake the requisite exercise. In this regard, he invited attention towards para No. 10 of the reply filed by the respondent No. 2-RPSC, indicating : “sufficient number of candidates from amongst the widow category were available in the respective categories and hence no separate cut-off marks were declared by the Commission”. 13. In this regard, he invited attention towards para No. 10 of the reply filed by the respondent No. 2-RPSC, indicating : “sufficient number of candidates from amongst the widow category were available in the respective categories and hence no separate cut-off marks were declared by the Commission”. 13. Apart from the above arguments, main thrust of his arguments has been that admittedly the writ petitioners was at merit position No. 10 of the widow category and even if the reservation to widow as directed by learned Single Judge is given, the writ petitioner would still not get anything, as there would be only 9 vacancies for widows. Then, why should the indulgence be granted at her instance! Asked with bewilderment, learned Senior Counsel. 14. In support of his argument that a futile writ should not have been issued by the learned Single Judge, learned Senior Counsel relied upon the following judgments:- (1) Calcutta Gas Company (Proprietary) Ltd. Vs. State of W.B. and others, AIR 1962 SC 1044 ] (2) Utkal University etc. Vs. Dr. Nrusingha Charan Sarangi and others, 1999 AIR SCW 511] 15. In support of his argument that the power to issue writ is a discretionary power and writ should not be issued, if the petitioner is guilty of delay and laches, reliance was placed on the judgment in Tridip Kumar Dingal and Ors. Vs. State of W.B. and ors. AIR 2008 SC (Supp.) 824], particularly para No. 54 thereof; which is being reproduce hereinfra: “We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right,. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ-Court. It is well settled that power to issue writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.” 16. Mr. Kuldeep Mathur, learned counsel appearing for the writ petitioner, vehemently submitted that the appellant is seeking to challenge such an order by which, the statutory rights of the writ-petitioner and other like candidates, have been taken cognizance of and given effect to. Mr. Kuldeep Mathur, learned counsel appearing for the writ petitioner, vehemently submitted that the appellant is seeking to challenge such an order by which, the statutory rights of the writ-petitioner and other like candidates, have been taken cognizance of and given effect to. He submitted that none of the vested rights of the appellants are under threat, as no order of appointment has been issued in their favour so far. According to him, the appellants being wary of their ouster, have challenged the judgment under consideration for absolutely frivolous flimsy and unsustainable grounds. 17. He submitted that it is true that the notification dated 24.01.2011 placed along with the writ petition and relied upon by the petitioner has stood superseded by the subsequent notification of 22.12.2015, but the essence remains the same. There is no substantial difference even after the amendment of 2015, inasmuch as reservation of widow and divorcee women has remained unaltered, albeit with a minor change in the language. While admitting the amendment in the Rules, vide notification dated 22.12.2015, he submitted that the order of learned Single Judge can be suitably modified and the requisite exercise be ordered to be carried in terms of the notification dated 22.12.2015 or as per the substituted Rule 9 of the Rules of 1999 (in place of the then existing Rule 9 inserted vide notification dated 24.01.2011). Learned counsel fairly conceded that instead of straightway issuing a direction to accord appointment to the writ petitioner, learned Single Judge should have issued a direction to consider petitioner’s candidature, of course after providing due reservation in each category. 18. Mr. Sunil Beniwal, learned Additional Advocate General, appearing on behalf of the respondent-State submitted that the State was always desirous of giving effect to the reservation pursuant to the notification dated 24.01.2011/22.12.2015. In this process the RPSC was already informed, but it refused to re-advertise the vacancy or redo the exercise, despite the request made by the State. He nevertheless admitted that the State has no grievance qua the order dated 18.07.2018, passed by the learned Single Judge and it is ready and willing, rather keen to give effect to the order of the learned Single Judge, so as to extend due benefit of reservation to widows and divorcee women, in terms of Rule 9 inserted vide notification dated 24.01.2011/22.12.2015. 19. Mr. 19. Mr. Khet Singh, learned counsel appearing for the respondent-RPSC in the present appeal as well arguing for the appellant in connected appeal (D.B.S.A.W. No. 101/2019), filed by the Commission, submitted that once the vacancy position has been notified and an advertisement has been issued, the Commission cannot increase or decrease the vacancy position, in view of the inhibition contained in the Proviso to Rule 15 of the Rules of 1999. He further submitted that the writ petitioner ought to have approached this Court immediately after issuance of the advertisement or at least before she appeared in the written examination. According to him, the writ petition filed by the respondent No. 3-writ petitioner not only suffered from delay and laches, but also barred on the principles of estoppel; for which it deserved dismissal. 20. Having heard learned counsel for the parties and upon perusal of the material available on record, we are in complete agreement with the ultimate view taken by the learned Single Judge. The statutory Rules, more particularly the legislation meant for augmentation of the deprived or challenged classes, is required to be given its true meaning. If Legislature has provided reservation to a particular category, the same should be given effect to, in its letter and spirit, giving a go-bye to the trivial technicalities; coming in the way. 21. The existence of reservation for widow and divorcee women, pursuant to the notification dated 24.01.2011/22.12.2015, inserting Rule 9 in various service rules, is not at all in dispute. Once the statute provides for reservation, it is statutory, rather constitutional obligation of all the arms of the State to extend the same to the class(es) for whom it is designed or destined. 22. A perusal of factual matrix available on record clearly shows that though the advertisement was issued on 28.04.2016, the category wise vacancy position came to be published by the RPSC on 22.06.2017. A perusal of the corrigendum notification No. 4/17-18, issued on 22.06.2017 reveals that the RPSC had notified only two vacancies for widows for Rajasthan Administrative Services, and providing no reservation at all for the widow and divorcee categories qua other services, such as Police Services and Accounts Services, etc. 23. A perusal of the corrigendum notification No. 4/17-18, issued on 22.06.2017 reveals that the RPSC had notified only two vacancies for widows for Rajasthan Administrative Services, and providing no reservation at all for the widow and divorcee categories qua other services, such as Police Services and Accounts Services, etc. 23. It is true that the writ-petitioner had appeared in written examination and in the interview on 21.08.2017 and it was only after the declaration of result on 17.10.2017, she had questioned the determination of vacancies, by way of filing writ petition in this Court. But then, filing of the writ petition on 13.11.2017, cannot be said to be belated or suffering from laches, as the cause of action accrued to the petitioner on publication category wise vacancy position, which admittedly came to be notified on 22.06.2017. In light of the averments made in the writ petition and looking to the facts noticed hereinabove, we are satisfied that the respondent No. 3 had approached this Court, without any delay, particularly because even as of today, the selection process has not attained finality. It was not at all a case, in which the petitioner could have been denied the relief on the ground of delay. 24. With a view to contend that issuance of writ and direction to re-determine the vacancy and carry out the exercise afresh would be a futile exercise, the appellant has set up a case that even if the effect of the notification dated 24.01.2011/22.01.2015 is given, it would lead to total 9 posts for widow and divorcee for Rajasthan Administrative Services, Police Services and Accounts Services; whereas the respondent No. 3 stands at merit position No. 10. But before adverting to such argument, we wish to record that pursuant to the direction given by this Court in the present appeal, the State Government has carried out exercise of determination of the vacancy position in terms of the notification dated 22.12.2015. According to the affidavit filed by the State, the following category wise vacancy position has emerged:- S. No. Name of Services Vacancy Position 1. Rajasthan Administrative Services 2 (widow) 2. Rajasthan Police Services 2 (widow) 3. Rajasthan Accounts Services 5 (widow), 1 (Divorcee) TOTAL 10 25. As total 10 posts are available for widow/divorcee, the argument of the appellants is liable to be repelled, which we hereby do. 26. Rajasthan Administrative Services 2 (widow) 2. Rajasthan Police Services 2 (widow) 3. Rajasthan Accounts Services 5 (widow), 1 (Divorcee) TOTAL 10 25. As total 10 posts are available for widow/divorcee, the argument of the appellants is liable to be repelled, which we hereby do. 26. Notwithstanding the above, we are of the view that once such an apparent illegality comes to the notice of the Court, viz. appropriate reservation has not been provided in conformity with the Rules and the deprived class has been deprived of their legitimate rights, the Courts cannot afford to remain tight lipped and refuse to remedy the injustice meted out to them. 27. In light of what we have discussed above, we find all the contentions raised by the appellants, including futility of issuing writ and delay, to be factually incorrect as well as legally untenable. We, therefore, reject them. 28. However, while disposing of the present appeal as well as the appeal No. 101/2019, filed by the RPSC vide this common judgment, we direct the State Government to apprise the Commission about the clear vacancy position in each of the categories, for which the posts in question were advertised for General, Scheduled Castes, Scheduled Tribes etc. while giving full effect to the mandate of reservation for widow and divorcee women in terms of the notification dated 22.12.2015. The State shall forward the vacancy position as aforesaid, within a period of two weeks from today. 29. On receipt of the correct vacancy position, the respondent Commission shall carry out the requisite exercise afresh and prepare merit list accordingly, from amongst the candidates, who appeared in written examination and interview. 30. Needless to observe that the writ petitioner and all other concerned widow or divorcee candidates shall be given suitable appointment, albeit, subject to satisfying other eligibility criteria. 31. The order of learned Single dated 18.07.2018 stands modified accordingly.