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2019 DIGILAW 970 (RAJ)

Sunita Kumari Meena v. State of Rajasthan

2019-04-02

ALOK SHARMA

body2019
ORDER : Alok Sharma, J. 1. As the issue in the bunch of these petitions is identical, they are being disposed of by this common order. 2. All the petitioners were selected as Senior Teacher in different subjects under Rajasthan Education Subordinate Service Rules, 1971 (hereinafter 'the Rules of 1971') pursuant to the advertisement dated 13.07.2016. 3. For the administrative purposes, Senior Teachers under the Rules of 1971 are posted in nine different exclusive divisions/ranges where their seniority is separately maintained. Transfer from one division/range to another entails loss of seniority in terms of the proviso to Rule 29 (10) of the Rules of 1971. For this reason the issue of allocation of divisions/ranges to Senior Teachers appointed under the Rules of 1971 assumes great significance. To introduce transparency in the allocation of divisions/ranges to the candidates selected, the State Government enunciated a policy through its guidelines dated 04.03.2018. Therein the allocation of divisions/ranges for those selected as Senior Teachers was to be determined on the basis of merit cum preference of the successful candidates subject no doubt to the availability of vacancies in the concerned divisions/ranges. 4. The petitioners before this court are aggrieved of being denied the allocation of appropriate divisions/ranges as per their merit-cum-preference while being appointed as Senior Teachers while those less meritorious in their respective categories were allocated divisions/ranges of their choice. The case in some of the petitions is that merely because the petitioners therein were Meritorious Reserved Category (MRC) candidates and therefore for the purpose of selection reckoned as general category candidates, they were denied the benefit of reserved category seats in the subjects concerned in divisions/ranges of their choice by not being reckoned for the reserved posts. 5. It has been submitted that this methodology of allocation of divisions/ranges to the successful MRC candidates entailed putting them to a disadvantage vis-a-vis reserved category candidates selected simplicitor in their respective quotas. That was wholly arbitrary and without application of mind and cannot be legally sustained. In support of this contention reliance has been placed on the judgment of the Apex Court in the case of Dega Venkata Harsha Vardhan and Others v. Akula Ventaka Harshavardhan and Others, 2018 (10) SCALE 618 wherein Para 11 it was held meritorious reserved category (MRC) candidates could not be placed in a disadvantageous position vis-a-vis. In support of this contention reliance has been placed on the judgment of the Apex Court in the case of Dega Venkata Harsha Vardhan and Others v. Akula Ventaka Harshavardhan and Others, 2018 (10) SCALE 618 wherein Para 11 it was held meritorious reserved category (MRC) candidates could not be placed in a disadvantageous position vis-a-vis. others selected solely in the reserved category such as by not permitting the MRC to be considered against vacancies in the reserved category as that would amount to making a MRC suffer for his better performance in the competitive examination. 6. Mr. Vigyan Shah counsel for the petitioners submitted that albeit the judgment of the Apex Court in the case of Dega Venkata Harsha Vardhan and Others v. Akula Ventaka Harshavardhan (supra) was in the context of admissions to medical colleges at the Post Graduate level and related to allocation of disciplines/branches, the principle enunciated applies with equal force to all situations where a MRC candidate is entitled to, by reason of his underlying category, for the benefit of seats in the reserved category quota. Mr. Vigyan Shah submitted that in the event a MRC included in the general category, while reckoning of his right to allocation on vacancies in the reserved category in a range/division were not given the benefit as per his merit he would be put to a unfair and unjustifiable disadvantage vis-a-vis those selected within the quota of reserved category (and obviously less meritorious)-who would be allocated divisions/ranges as per their choice with reference to the reserved seats while the MRC candidate would be denied that right only for reason of his better performance in the competitive examination. Such a situation would be legally unacceptable. If such MRC were to subsequently seek change to a more desirable and developed range/division they would then lose their seniority in the cadre of Senior Teachers in the division/range wholly allocated in terms of the proviso to Rule 29 (10) of the Rules of 1971 and be placed lowest in the cadre of Senior Teachers in the range/division he is transferred to. 7. Mr. 7. Mr. R.P. Saini appearing for some of the petitioners submitted that even otherwise in some cases, when the recommendations in the same list were made by the Rajasthan Public Service Commission (RPSC) for appointment of the petitioners as Senior Teachers at the time of allocation of ranges/divisions, the guidelines of the State Government issued on 04.03.2018 for allocation of ranges/divisions on the basis of merit-cum-preference were overlooked and less meritorious candidates allocated home districts in their respective category while the more meritorious candidates in such categories denied their preference. Mr. R.P. Saini submitted that aside of the above plain illegality, on various occasions the recommendations for appointment of Senior Teachers in the select list were forwarded by the RPSC to the State Government in a truncated fashion without regard to inter se merit of those selected for reason of which the less meritorious candidates earlier recommended were given the benefit of allocation of seats in ranges/divisions of their choice while those higher in the select list subsequently recommended by RPSC were denied their preference in the allocation of divisions/ranges for reasons of the fact that the vacancies earlier available were filled up by those lower in the select list whose names were fortuitously forwarded earlier by the RPSC to the State Government for appointment to the posts in issue. Mr. R.P. Saini submitted that all the above illegalities have negated the State Government's guidelines dated 04.03.2018 for allocation of divisions/ranges to Senior Teachers on the basis of their merit-cum-preference. Such allocations of ranges/divisions to selected Senior Teachers are thus wholly arbitrary and unsustainable. 8. Mr. Ganesh Meena, AAG appearing for the respondents submitted that the judgment of the Apex Court in the case of Dega Venkata Harsha Vardhan and Others v. Akula Ventaka Harshavardhan (supra) cannot attract to the case at hand and reliance thereon is inapposite. He submitted that in the case before the Apex Court relied upon by Mr. Vigyan Shah, the matter related to allocation of branches in various disciplines during admissions at the Post Graduate medical level. Wrong allocations thus had a serious effect on the career of students involved. He submitted that in the instant case there is no disadvantage to the MRCs inasmuch as by allocation of divisions/ranges they do not suffer any monetary loss or other disadvantages in their careers open to Senior Teachers. Mr. Wrong allocations thus had a serious effect on the career of students involved. He submitted that in the instant case there is no disadvantage to the MRCs inasmuch as by allocation of divisions/ranges they do not suffer any monetary loss or other disadvantages in their careers open to Senior Teachers. Mr. Ganesh Meena further submitted that the State Government is not obliged to wait for the complete select list forwarded and recommended by the RPSC after verification of documents for appointment to the posts of Senior Teacher as it is under tremendous pressure to ensure early appointments to the vacant posts in the public interest of student instructions. Mr. Ganesh Meena submitted that in these circumstances the recommendations for appointment by the RPSC after due verification as they are made and come in are acted upon and the appointments made by the State Government on the merit-cum-preference of those recommended by RPSC. The anomalies now impugned are attributable to candidates higher in the select list who fail to have their documents of eligibility verified timely despite adequate notice. Mr. Ganesh Meena submitted that however, where within the same list of recommendations forwarded by RPSC for appointment on the post of Senior Teachers, discrepancies are found and those lower in the list given their preferential allocation of division/range while those higher in the same list denied their preference, corrective action will be taken by the State within four weeks of representation/s as may received. 9. Heard. Considered. 10. That all the petitioners are duly selected Senior Teachers under the Rules of 1971 pursuant to the advertisement dated 13.07.2016 is not in dispute. The dispute in these petitions is with regard to the operation/application of the State Government's own guidelines dated 04.03.2018 for allocation of divisions/ranges on the basis of merit-cum-preference of the candidates selected as Senior Teachers subject to availability of vacancies. There is force in the contention of counsel for the petitioners that more meritorious reserved category (MRC) candidates who have been reckoned as general category candidates at the selection for reason of their better performance at the recruitment process cannot be denied the benefit of the allocation of posts for reserved category in different ranges/divisions on being treated as general not reserved category candidates. To do so would be to penalize and put to disadvantage MRC candidates vis-a-vis those selected as Senior Teachers only on the strength of their belonging to the reserved category. The Apex Court in the case of Dega Venkata Harsha Vardhan and Others v. Akula Ventaka Harshavardhan (supra) has categorically held that MRC candidates cannot be placed in a disadvantageous position by not permitting them to be treated as reserved category candidate when the occasion of allocation of disciplines at PG Medical Level arises, as such a denial would amount to making the MRC candidates suffer for their better performance in the competitive examination. No doubt the law enunciated by the Apex Court was in the context of admissions to Post Graduate medical courses. Yet the underlying principle of not putting MRC candidates at any disadvantageous vis-a-vis reserved category candidates simplicitor in seat allocation is quite clear. 11. 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. 12. 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. 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. 13. 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 Government'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. 14. Consequently these petitions are disposed of with the direction that the allocation of ranges/divisions to Senior Teachers selected pursuant to the advertisement dated 13.07.2016 be done afresh in accordance with the observations of this court earlier in this judgment. This direction be complied within a period of two months from today. 15. A copy of this order be placed in each connected petition. 16. And a copy of this order also be furnished to Mr. Ganesh Meena, AAG for onward transmission and compliance.