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2023 DIGILAW 172 (RAJ)

Rohit Kumar v. State of Rajasthan

2023-01-13

ASHOK KUMAR GAUR

body2023
ORDER 1. The present writ petition has been filed by the petitioners with the following prayers:- "(i) Issue an appropriate writ, order or direction, respondents may kindly be directed to treated the candidature of petitioners under General category candidates being the petitioners fill their application form under General category and deposited fees according to general category candidates and consequently given appointment to petitioners on the post of sweeper in the larger interest of justice. (ii) Any other order or direction which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case may also be passed in favour of the petitioners; (iii) Cost of the writ petition be also awarded in favour of the petitioner" 2. The facts in nut-shell, as pleaded in the writ petition, are that an advertisement No.1/2018 dated 13.04.2018 was issued for the recruitment on the post of Safai Karmchari in different Municipalities. 3. The petitioners in pursuance of said advertisement, applied at Jobner Municipality, where total 31 posts were advertised by the respondent-Department. 4. The petitioners have pleaded that though they belonged to Scheduled Caste Category, however, while filling the form, they had applied under the General Category. 5. The petitioners have pleaded that the respondents undertook the relevant process of filling of 31 posts as advertised, and 13 posts were reserved for General Male Category and 4 posts were reserved for General Female Category. 6. The petitioners have pleaded that when their names were not included in the select list, they sought information from the respondents, under the Right to Information Act and the respondent-Department supplied them information that only two application forms were received under General Category Candidates. 7. The petitioners have pleaded in the writ petition that since the respondents received only two application forms of General Category Candidates and 17 posts were reserved for General Category Candidates and as such, the respondents have committed an illegality in drawing lottery and declined appointment to the petitioners. 8. The petitioners have pleaded that in spite of fulfilling the requisite qualification and eligibility, they have been wrongly deprived from the appointment. 9. Learned counsel-Ms. 8. The petitioners have pleaded that in spite of fulfilling the requisite qualification and eligibility, they have been wrongly deprived from the appointment. 9. Learned counsel-Ms. Sudesh Kasana with the best of her ability has made the following submissions:- (i) The procedure adopted by the respondents for drawing the lottery was not warranted as per the circular dated 29.05.2018, which has been issued by the respondents as number of candidates were less than the number of posts reserved for General Category Candidates. (ii) Learned counsel submitted that the category wise reservation was provided to the candidates and by clubbing them in open quota for the purpose of draw of lottery, has extended the zone of consideration and as such, the procedure adopted by the respondents, is vitiated in the eyes of law. (iii) The petitioners were the only two candidates in General Category, their candidature could not have been rejected by putting them with other applicants for drawing the lottery. (iv) Learned counsel for the petitioner has placed reliance on a judgment passed by Coordinate Bench of this Court in Swaroop Kumar Acharya V. State of Rajasthan, 2017 (3) W.L.N. 362 and judgment passed by Division Bench of this Court in D.B. Spl. Appeal Writ No.1733/2018 (Virendra Kumar & Ors. Vs. The State of Rajasthan & Anr.) & other connected matters, vide common order dated 09.08.2019. (v) Learned counsel for the petitioners on the strength of the judgment passed in the case of Swaroop KUmar Acharya Vs. State of Rajasthan (supra), submits that if less number of candidates are applicants in a particular category, the draw of lottery has been deprecated by this Court. (v) Learned counsel for the petitioners on the strength of the judgment passed by the Division Bench in the case of Virendra Kumar & Ors. Vs. The State of Rajasthan & Anr. (supra) has submitted that the Division Bench of this Court has laid down the law that the reserved category candidates who got benefit of age relaxation or any other concession cannot be considered in open category and as such, the candidates who have taken benefit of reservation could not have been given another chance to participate against the general seats. 12. Per Contra, Ms. Archana, Adv. appearing on behalf of Mr. 12. Per Contra, Ms. Archana, Adv. appearing on behalf of Mr. Anil Mehta, AAG for the respondents, submitted that the facts pleaded in the writ petition before this Court by the petitioners clearly reveal that the petitioners though belonged to Scheduled Caste Category, had applied under General Category and as such, the claim of the petitioners to consider them in General Category will be contrary to the prayer made by them with regard to the facts pleaded in the writ petition. 13. Learned counsel for the respondents on the merits of the matter, submitted that the respondent-Department has issued instructions for considering the cases of eligible persons and the procedure of draw of lottery was elaborately highlighted by the Authorities and even the sequence of holding of draw of lottery was also mentioned in the letter/order dated 29.05.2018. 14. Learned counsel for the respondents submitted that the Appointing Authority was first required to undertake the lottery process for Scheduled Caste; Scheduled Tribe, Other Backward Classes and thereafter Special Backward Classes and at last, lottery for General Category Candidate, was to be drawn. 15. Learned counsel for the respondents submitted that the instructions issued by the respondents in the letter dated 29.05.2018, also made it very clear that after drawing of lottery for different reserved category candidates, all candidates of such reserved category, were to be put in common pool for the purpose of drawing the lottery and as such, the respondents have not committed any illegality in considering the other eligible reserved category candidates who have not taken benefit of any concession. 16. Learned counsel for the respondents further submitted that if in the draw of lottery, the petitioners have been given chance for their selection and if in the draw of lottery they have not been found amongst the successful candidates, no fault or arbitrariness can be attached with the decision taken by the respondents. 17. Learned counsel for the respondents places reliance on relevant Clause as quoted in the office order/letter dated 29.05.2018, which reads as under:- 18. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 19. This Court finds that the petitioners who are husband and wife applied for the post of Safai Karamchari, however, they have applied in open category. 20. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 19. This Court finds that the petitioners who are husband and wife applied for the post of Safai Karamchari, however, they have applied in open category. 20. This Court further finds that the petitioners in the instant case have made their prayer to consider them in General Category Candidates as they had filled the form in the General Category Candidates. 21. This Court finds that the draw of lottery which was ultimately undertaken by the respondents for the General Category Candidates, necessarily included the petitioners and while drawing the lottery, if the petitioners were not found successful candidates, no fault can be attached in such a procedure adopted by the respondent-Department. 22. The submission of learned counsel for the petitioners that if the reserved category candidates had already been considered by draw of lottery in their respective category, they were not be given other chance by putting them in common pool of open category, this Court is afraid to accept the submission of learned counsel for the petitioners as the instructions which were issued by the State Government had clearly mentioned the procedure and the steps which are required to be followed while drawing the lottery. 23. This Court finds that the candidates of reserved category if had availed any concession or benefit, then necessarily such candidates were not to be included in the General/Open Category and as such, only those candidates who had not taken benefit of any concession and they were not amongst the successful candidates in their respective category, were allowed to be put in common pool for the purpose of draw of lottery. 24. This Court finds that such procedure being adopted has also got a seal of approval from the decision rendered by the Division Bench in the case of Virendra Kumar & Ors. Vs. The State of Rajasthan & Anr. (supra). This Court, deems it proper to quote the para 30 of the order passed by the Division Bench in the said case, which reads as under:- "30. Vs. The State of Rajasthan & Anr. (supra). This Court, deems it proper to quote the para 30 of the order passed by the Division Bench in the said case, which reads as under:- "30. Some of the appellants had argued that since the entire recruitment is based on draw of lots and does not involve any element of skill, reserved category candidates' names should not have been included in the draw of lots held for open category candidates, as they could not be considered against such open quota. This court is of the opinion that the open category vacancies are not part of any quota. Although the rule of'migration' was articulated in the context of reserved category candidates performing and securing results comparable to or better than candidates of the unreserved category, nonetheless,the fact remains that both 'categories' are candidates. That the reserved category belong to classes who are inadequately represented, places them in a different position, in that they are to the extent of reservation and their merit, assured of a better chance of appointment. Nonetheless, they as well as the unreserved category candidates fulfill the description of eligible individuals, entitled to equal treatment. This equal treatment,without the benefit of reservation, is afforded in competition or any other mode adopted for the unreserved category vacancies. Therefore, reserved category candidates' names cannot be excluded from the draw of lots held for the residual, unreserved category of candidates, as those vacancies are not part of any quota. The appellants submissions, on this aspect are therefore, rejected." 25. The submission of learned counsel for the petitioners that the procedure adopted by the respondents is arbitrary and discriminatory as there were two applicants i.e. a husband and wife for General Category and the respondents ought not to have taken the procedure of drawing lottery and the reliance is placed on the judgment passed by Coordinate Bench of this Court in the case of Swaroop Kumar Acharya V. State of Rajasthan (supra). 26. This Court on a bare reading of the order passed by the Coordinate Bench, finds that the issue before the Coordinate Bench was not in respect of considering the clubbing of the candidates who were also considered in the earlier General Category Candidates and being selected and later on included in the open category. 26. This Court on a bare reading of the order passed by the Coordinate Bench, finds that the issue before the Coordinate Bench was not in respect of considering the clubbing of the candidates who were also considered in the earlier General Category Candidates and being selected and later on included in the open category. The facts of that case, further revealed that the writ petitioners therein were of General Category and they had applied in the General Category, not like in the instant case, where the petitioners in spite of Scheduled Caste Category, applied in General Category, this Court finds that the said judgment is of little assistance to learned counsel for the petitioners. 27. Reliance is placed by learned counsel for the petitioners on the judgment passed by the Division Bench in the case of Virendra Kumar & Ors. Vs. The State of Rajasthan & Anr., this Court finds that the issue before the Division Bench was in respect of migration of candidates of reserved category candidates on availing concessions/relaxations and such candidates were not held to be entitled for migration in open category. 28. The present facts of the case, clearly reveals that the respondents have not taken any step of considering the Reserved Category Candidates in General Category Candidates, on account of getting any benefit or concession. 29. This Court finds that the respondents have not committed any error in conducting the recruitment process. 30. Accordingly, the writ petition lacks merit and the same is dismissed.