DBCWP NO.8637/07. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T D.B. CIVIL WRIT PETITION NO.8637/2007. Ramzan Ali & Anr. Vs. State of Rajasthan & Ors. Date of Judgment:- 29 February, 2008. QUORUM HON'BLE THE CHIEF JUSTICE SHRI NARAYAN ROY HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Shri Dinesh Yadav for the petitioners. Shri G.S. Gill, Additional Advocate General for the State, respondent No.1 and 2. Shri Ashok Gaur for respondent No.3, Registrar General, Raj.High Court, Jodhpur. Shri S.N. Kumawat for respondent No.4-RPSC. Miss Shweta Pareek for respondents No.5 and 6. ***** BY THE COURT: This writ petition has been filed by petitioners Ramzan Ali and Muneesh Chand Yadav, who belong to Other Backward Classes (OBC). The Rajasthan Public Service Commission (for short, the “RPSC”) vide advertisement/notification dated 19/11/2005 invited applications for appointment of 85 posts of Civil Judge (Junior Division) and Judicial Magistrate in Rajasthan Judicial Service. Out of 12 posts reserved for candidates belonging to O.B.C., 2 posts were reserved for women candidates. The petitioners applied for appointment against 12 posts reserved for O.B.C. Petitioners passed the DBCWP NO.8637/07. 2 written examination and, thereafter, they were called for interview. Their names however did not appear in the final select list declared by the RPSC on 29/6/2007. It appears from the mark-sheets of the petitioners which are placed on record that petitioner No.1 secured 193 marks and petitioner No.2 secured 191 marks out of 335 marks. Aggrieved by their non- selection, they have filed this writ petition with the prayer that RPSC be directed to redraw the merit list as per Rule 9(3) of the Rajasthan Civil Services (Judicial Service) Rules, 1955 (for short, the “Rules of 1955”) in terms of the judgment of the Supreme Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and ors. : 2007 AIR SCW 5650 and be further directed to withdraw recommendation of appointment made in favour of respondent No.5 Ms.Anita Tailor and respondent No.6 Ms.Asha Choudhary and instead recommend names of the petitioners for such appointment and the State of Rajasthan be further directed to appoint the petitioners on the aforesaid post. Relying on the judgment of the Supreme Court in Rajesh Kumar Daria supra, Shri Dinesh Yadav, learned counsel for the petitioners has argued that respondent-RPSC while preparing the select list has not correctly applied the rule of reservation. It was argued that reservation for women which is in the nature of horizontal reservation, ought to have been DBCWP NO.8637/07. 3 made only after evaluating the number of female candidates in OBC who on their merit were already placed in the select list on the basis of vertical reservation. It was argued that respondents No.5 and 6 have secured lesser marks than the petitioners. When two women of O.B.C. Category have been otherwise selected on merit, there was no reason then to further select respondents No.5 and 6 in the quota reserved for women of O.B.C. in preference to the petitioners who are more meritorious. According to the ratio of the judgment of the Supreme Court in Rajesh Kumar Dharia, supra, the RPSC be directed to withdraw the recommendation for appointment of respondents No.5 and 6 and recommend appointment of the petitioners in their place and consequential directions be issued to the State Government to appoint the petitioners. Shri S.N. Kumawat, learned counsel for RPSC argued that RPSC had already forwarded the select list to the State Government much before the judgment was rendered by the Supreme Court thereafter on 18/7/2007 and on that basis, appointments have already been given to the selected candidates. Process of selection for the year 2005 is therefore already complete. Appointments have been made as per the principles of law laid down by the Division Bench of this Court in Hari Om Awasthi & Others Vs. Rajasthan Public Service Commission & Others : W.L.C. (Raj.) 2003(3) 551 which held the field at the time of selection. It was argued DBCWP NO.8637/07. 4 that not only the RPSC has forwarded the select list in respect of 85 candidates but the appointment orders of all 85 candidates have already been issued. The settled position therefore cannot be now allowed to be unsettled on the basis of interpretation of the relevant rules in a subsequent judgment. He however submitted that RPSC for the purpose of working out the reserved posts has been applying the principles of law enunciated by the Supreme Court in all selections which are taking place now. Shri Ashok Gaur, learned counsel appearing for the Registrar General, Rajasthan High Court argued that all 85 candidates whose names were forwarded by the RPSC to the Government, have since been appointed and they are likely to shortly join the induction training course which is scheduled to commence from 10/3/2008. At this stage, relief prayed for by the petitioners, should not be granted. Shri G.S. Gill, learned Additional Advocate General for the State as well as Miss Shweta Pareek, learned counsel appearing for respondents No.5 and 6 have also opposed the writ petition and have argued that the writ petition be dismissed. We have considered the rival submissions and perused the material on record. It is not in dispute that number of advertised posts were only 85 and appointments against all 85 posts have already been made. It is also not in DBCWP NO.8637/07. 5 dispute that the select list was prepared by the respondent-RPSC as per the interpretation of the relevant rules by Division Bench of this Court in Hari Om Awasthi supra. Appointments having thus been made, the question which therefore arises for consideration is whether such appointments should be disturbed only because interpretation placed on the relevant rules by Division Bench of this Court in Hari Om Awasthi supra was later not approved of by the Supreme Court in Rajesh Kumar Daria supra. A careful reading of the judgment of the Supreme Court in Rajesh Kumar Daria supra makes it clear that the Supreme Court in para 12 of the report taking note of the fact that vacancies were still available, directed that the three candidates who were denied appointments in view of the excess selection made in Scheduled Caste quota, be accommodated without disturbing selection and appointments already made. In the present case when we find that all 85 advertised posts have been filled up and there are no vacancies, such a direction cannot be issued in favour of the petitioners. Even though the interpretation rendered by the Division Bench of this Court in Hari Om Awasthi supra no longer holds good in view of judgment of Rajesh Kumar Daria, the respondent-RPSC acting on such interpretation prepared a select list and the State Government acting on such select list, have actually appointed the selected candidates whose in-service DBCWP NO.8637/07. 6 training is scheduled to commence shortly. Their appointments cannot be now disturbed so as to unsettle the settled position. Notwithstanding the judgment of the Division Bench of this Court, which otherwise interpreted the relevant rules, having been over-ruled by the Supreme Court, such over-ruling would only have the prospective effect. Even the Supreme Court in its judgment deemed it appropriate to only accommodate three additional candidates against available vacancies without disturbing selections/appointments already made. In view of above discussion, the kind of the relief that has been prayed for in this writ petition cannot be granted. Writ Petition is accordingly dismissed with no order as to costs. (MOHAMMAD RAFIQ), J. (NARAYAN ROY), CJ. anil