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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
O R D E R
Mst. Aabha Sharma
Vs.
The State of Rajasthan and Others
S.B.Civil Writ Petition No. 1666/2006
.........
Date of Order : 09/09/2008
PRESENT
HON'BLE MR. JUSTICE H.R.PANWAR
Mr. M.R.Singhvi for the petitioner.
Mr. V.K.Mathur for the respondents.
BY THE COURT
Reportable
By the instant writ petition under Article 226 of the
Constitution of India, the petitioner seeks a direction to the
respondents to appoint the petitioner on the post of LDC with
effect from the date when the first person from the panel was
appointed and be given all consequential benefits such as
seniority, pay fixation, increments etc. etc. and restraining the
respondents No.2 and 3 from filling these posts otherwise than
by the merit list.
I have heard learned counsel for the parties.
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Carefully gone through the record.
It is contended by learned counsel for the petitioner
that Rule 7 (B) of the Rajasthan Subordinate Courts Ministerial
Establishment (Amendment) Rules, 1999 (for short ‘the Rules of
1999’ hereinafter) provides reservation of vacancies for woman
candidates. It is contended that the petitioner is a woman
candidate belonging to the general category and as per Rule 7-B
of the Rules of 1999, 20% reservation categorywise in direct
recruitment to the woman candidates has been provided.
According to learned counsel for the petitioner, out of the total
posts advertised for LDC, 3 posts of LDCs available with the
respondents were for general category and out of 3 vacancies, a
20% reservation has been provided for the woman candidates
categorywise and therefore, against 20% reservation out of 3
posts the petitioner be given appointment.
A reply to the writ petition has been filed by the
respondents and contended that Rule 7-B of the Rules of 1999
provides only 20% reservation categorywise to the woman
candidates in the direct recruitment and since there are only 3
vacancies, therefore, the petitioner is not entitled to be
appointed on the post of LDC. It is further contended by learned
counsel for the respondents that all the three persons selected
from the panel have already been given appointment and they
have joined their services long back and none of them have been
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impleaded as party respondent and therefore, the relief prayed
for cannot be granted.
Learned counsel for the petitioner has relied on a
decision of Hon’ble Supreme Court in State of U.P. and Another
Vs. Pawan Kumar Tiwari and Others 2005 SCC (L&S) 193 and
contended that out of 3 posts 20% reservation comes to (.6) and
therefore, it be rounded to (1) seat and appointment be given to
the petitioner.
In State of U.P. and Another Vs. Pawan Kumar Tiwari
and Others (Supra) there were 93 posts of Civil Judge (Junior
Division) in Uttar Pradesh Judicial Service, out of which, 50%
posts were for General Category, 21% posts were for Scheduled
Castes, 27% posts were for Other Backward Classes and 2%
posts were for Scheduled Tribes and the percentage worked out
to 46.50% for General Category, 19.53% for Scheduled Castes
category, 25.11% for OBCs and 1.86% for Scheduled Tribes. On
the basis of the percentage worked out, the number of posts
reserved were 46, 20, 26 and 1 for General, SC, OBCs and ST
respectively. So far as the reservation for other backward
classes is concerned, the percentage worked out to 25.11%,
whereas the number of posts reserved were 26. On challenge
before the High Court, the figure of 46.50 worked out have been
rounded off to 47 instead of 46 as determined. That came to be
challenged before Hon’ble Supreme Court and Hon’ble Supreme
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Court observed as under :-
“We do not find fault with any of the two
reasonings adopted by the High Court. The rule
of rounding off based on logic and common sense
is: if part is one-half or more, its value shall be
increased to one and if part is less than half then
its value shall be ignored. 46.50 should have
been rounded off to 47 and not to 46 as has been
done.”
Learned counsel appearing for the respondents has
relied on a recent decision of the Hon’ble Supreme Court in
Rajesh Kumar Daria Vs. Rajasthan Public Service Commission
and Others (2007) 8 SCC, 785, wherein the Hon’ble Supreme
Court held that “Social reservations in favour of SC, ST and OBC
under Article 16 (4) are “vertical reservations”. Special
reservations in favour of physically handicapped, women, etc.
under Articles 16 (1) or 15 (3) are “horizontal reservations”.
Where a vertical reservation is made in favour of a Backward
Class under Article 16 (4), the candidates belonging to such
Backward Class, may compete for non-reserved posts and if they
are appointed to the non-reserved posts on their own merit,
their number will not be counted against the quota reserved for
the respective Backward Class. Therefore, if the number of SC
candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage of
posts reserved for SC candidates, it cannot be said that the
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reservation quota for SCs stood filled. The entire reservation
quota will be intact and available in addition to those selected
under open competition category.”
It was further observed by the Hon’ble Supreme
Court that “But the said principle applicable to vertical (social)
reservations will not apply to horizontal (special) reservations.
Where a special reservation for women is provided within the
social reservation for SCs, the proper procedure is first to fill up
the quota for SCs in order of merit and then find out the number
of candidates among them who belong to the special reservation
group of “scheduled caste women”. If the number of women in
such list is equal to or more than the number of special
reservation quota, then there is no need for further selection
towards the special reservation quota. Only if there is any
shortfall, the requisite number of Scheduled Caste women shall
have to be taken by deleting the corresponding number of
candidates from the bottom of the list relating to Scheduled
Castes.”
In the instant case, the petitioner claims the special
reservation which has to be applied horizontally and first the
post has to be filled in from the male candidates and then by
applying the number of horizontal reservation of 20% from
woman candidates of the general category, the selection has to
be made.
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In the instant case, if the contention raised by the
counsel for the petitioner is accepted rounding “.6” to “1”, then
the reservation to the woman candidates in general category
would come to 33% instead of 20% and therefore, it would
exceed the reservation provided under Rule 7-B of the Rules of
1999. Even otherwise, the petitioner is not entitled for the relief
claimed for for the reason that the persons who have been
selected and appointed have not been impleaded as party
respondent and therefore, no order adverse to their interest
without hearing them can be passed.
In Sushma Suri Vs. Govt. of National Capital Territory
of Delhi and Another (1999) 1 SCC 330, Hon’ble Supreme Court
observed as under :-
“It is however not possible to give any relief to the
appellant because when she commenced this
litigation, recruitment process was still going on but
now the process is complete, selected candidates
have already been appointed, they have reported
for duty at different places and they are also not
impleaded as parties.”
More so, in the instant case, the vacancies of LDC for
the subsequent years have already been advertised and after
process of selection, the candidates have been selected and
having been appointed and therefore, even there is no
anticipated vacancies available.
A Division Bench of this Court in Laxman Prasad
Sharma Vs. District and Sessions Judge, Pratapgarh and Others
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RLW 2005 (3) Raj. 1819 while considering the identical issue
held that claiming vested and enforceable right to be appointed
by candidate placed in select list on future vacancies occurred in
excess of the advertised vacancies during the currency of one
year, merely finding place in select list does not acquire right of
appointment, except to limited extent that when candidate
selected against the advertised vacancy does not join for some
reason and the selected list is still operative. It has further been
held that the process of selection comes to an end when the
appointment on all the advertised vacancies are made and
carried out. The selection process by way of requisition and
advertisement can be started for clear vacancies and also for
anticipated vacancies but not for future vacancies.
Viewed from any stand point, in my view, the
petitioner is not entitled for relief prayed for.
In this view of the matter, I do not find any merit in
the writ petition. The writ petition is therefore, dismissed. Stay
petition as well as the application being I.A. No. 3065/07 also
stand dismissed. No order as to costs.
(H.R.PANWAR), J.
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