CW 4591/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.4591/2008 Ram Sahai Saini Versus State & Ors Date of Order ::: 20/08/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. Kamlakar Sharma, for petitioner Mr. SN Kumawat, AAG, for respondents Mr. Manoj Bhardwaj for respondents-3 to 6 Petitioner, despite being placed at S.No.1 in OBC category, against four vacancies reserved for OBC category, yet when not considered for appointment has approached this Court by way of instant petition. In all 16 vacancies of Gram Sevak-cum- Secretary in Zila Parishad, Tonk were advertised vide notification dt.01/03/2008 (Ann.1); however, notification was issued by Distt. Establishment Committee, Zila Parishad, Tonk on 10/03/2008 with a complete break-up of vacancies being reserved for various categories; however, prior thereto, Vide advertisement dt.03/03/2008, it was also notified that 12.5% posts of Gram Sevak would be reserved for Ex-servicemen while 2% for outstanding sports persons on horizontal basis. Thus, four vacancies were reserved for OBC out of which three were for General OBC and One for OBC (Female), out of total 16 advertised vacancies. Pursuant to advertisement (supra), CW 4591/08 //2// petitioner as a member of OBC applied for the post of Gram Sevak; and participated in the process of selection; while as per result published (Ann.4), he secured 482 marks and placed at S.NO.1 in order of merit. But, in provisional select list prepared by respondents out of three vacancies reserved for OBC (Male), one was allotted to physically handicapped and two for Ex-servicemen, as a result whereof, since no vacancy having remained available, despite petitioner having stood at S.NO.1 in order of merit under OBC category, yet his name was not included in select list (Ann.5) published by respondents. Counsel for petitioner submits that as per 100 point roster for reservation Scheme vide Circular dt.07/08/2007 (Ann.6), vacancies reserved for OBC has to be filed by persons belonging to the category and could be made available for physical handicapped or Ex- Serviceman, as the case may be, unless fall in merit; and despite being at S.No.1 in order of merit, his elimination from select list on the premise of vacancies being reserved for physically handicapped and for Ex-serviceman, under 100 point roster adopted by respondent is wholly arbitrary and in violation of Art.14 of the Constitution. In the reply, respondents have inter- alia averred that out of total 139 sanctioned CW 4591/08 //3// posts, 123 posts were already filed up and process of selection impugned herein as per roster point started from S.NO.124 and 16 vacancies were required to be filed up in pursuant to advertisement dt. 03/03/2008 and since applicants having claimed horizontal reservation being member of OBC (handicapped & ex-serviceman), were considered against vacancies reserved for OBC category and despite petitioner being at S.NO.1 in order of merit could not be accommodated against a limited number of vacancies for OBC and the procedure having been followed by respondents is in conformity with 100 point roster (Ann.6). Be that as it may, this fact, however, has not been disputed by respondents that petitioner stood at S.No.1 in order of merit in OBC (Male) category. Here this Court would like to observe that against 16 vacancies advertised for reserved category of Scheduled Caste, Scheduled Tribe & OBC, or horizontal reservation for handicapped or Ex-serviceman, there were no open vacancies for general category out of 16 advertised in district Tonk. It has also come on record that roster point for filling up 16 advertised vacancies in question, commenced from S.No.124 and as per circular of 100 point roster, since it commenced from S.No.24 - extract of roster CW 4591/08 //4// point from S.No.24 to 35 referred to in Appendix-1 of Circular dt.07/08/2007 (Ann.6) reads ad infra: उपाबÛध--१ राÏय/अधीनःथ◌ं्/मंऽालियक एवं चतुथ[ ौेणी सेवाओं मɅ अ. जा./अ.ज.जा./ अ.ǒप. व./ मǑहला वग[/भूतपूव[ सैिनक/ǒबंकलांग/ǔखलाǑडयो कȧ सीधी भतȸ के िलए आर¢ण का मोडल रोःटर पद कȧ बम सं ० ूवग[ ǔजसके िलए पद िचǔÛहत Ǒकए जाने चाǑहए (अजा/अजजा/अǒपव (16%/12%/21%) ूवग[ ǔजसके िलए पद िचǔÛहत Ǒकए जाने चाǑहए ूवग[ ǔजसके िलए पद िचǔÛहत Ǒकए जाने चाǑहए ूवग[ ǔजसके िलए पद िचǔÛहत Ǒकए जाने चाǑहए केवल अधीनःथ एवं मंऽालियक सेवा ूवग[ ǔजसके िलए पद िचǔÛहत Ǒकए जाने चाǑहए केवल अधीनःथ ःथ एवं मंऽालिय क सेवा ूवग[ ǔजसके िलए पद िचǔÛहत Ǒकए जाने चाǑहए केवल अधीनःथ एवं मंऽालियक सेवा 24 अǒपव 5 मǑहला 7 भू पू सै 3 25 अजजा 3 26 अजा 4 27 अनारǔ¢त मǑहला 8 भू पू सै 4 28 अनारǔ¢त 29 अǒपव 6 30 अनारǔ¢त मǑहला 9 31 अनारǔ¢त 32 अजा 5 भू पू सै 4 33 अनारǔ¢त भू पू सै 5 34 अजजा 4 मǑहला 10 अंधता या िनàन िǒƴ 35 अǒपव 7 In view whereof (supra), first vacancy at S.No.24 reserved for OBC goes to OBC female and next vacancy at S.NO.29 comes for OBC (general) which was supposed to be offered to a person belonging to OBC and a member of handicapped or ex-serviceman could be considered provided having fallen in order of merit unless vacancy is reserved as per roster point for a particular category. In the CW 4591/08 //5// instant case, physically handicapped or ex- serviceman even if belonging to OBC category cannot be considered against vacancy having fallen at S.NO.29 or at No.35 under 100 point roster systems unless having fallen in merit and in such circumstances, petitioner whose name stood at S.NO.1 in order of merit in the OBC category was required to be considered for appointment against point No.29 or 35 under 100 point roster of reservation provided by the Government. It has been informed that in case of applicant from handicapped or ex- serviceman category having been included in merit list, in over all merit, whose name finds place at S.No.163 secured 313 marks, at S.No.295 secured 281 marks, and at S.No.608 secured 231 marks, all of whom do not fall in the order of merit at any stage, while petitioner's name finds place at S.No.1 secured 482 marks. It has been informed that vacancy reserved for OBC has not been filled up so far in view of an interim order being passed on 09/05/2008 in keeping post reserved for the petitioner. In the light thereof, writ petition succeeds and is hereby allowed. Respondents are directed to consider case of petitioner for appointment on the post of Gram Sevak-cum Secretary pursuant to advertisement dt. CW 4591/08 //6// 10/03/2008 (Ann.3) with all consequential benefits including seniority and fixation of pay; however, the petitioner shall only be entitled for notional benefits but no arrears flowing from notional fixation of pay would be admissible. Compliance of this order be made within two months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.6/ 4591CW2008Rsrd20AugOBC.doc