1 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 P R E S E N T 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. 2 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 3 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 4 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 5 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. 6 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 7 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. rp