CW 8650/07 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH [1] S.B. Civil Writ Petition No.8650/07 Vijay Choudhary & Anr. Versus State & Ors. [2] S.B. Civil Writ Petition No.9745/06 Yaswant Kumar & Ors. Versus State & Ors. DATE OF ORDER : 22/05/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Ravi Chirania ] for petitioners Mr. Ram Pratap Saini ] Mr. J.K. Agrawal, Addl. G.A., for State Mr. S.N. Kumawat, for respondent-RPSC *** Since common issue is involved in both the writ petitions, they are being decided by the present order. Since name of petitioner No.2 Gopal Choudhary in CW No.8650/07 does not find place in the select list, no relief can be granted to him. Basic grievance of the petitioners which has been raised in the instant petitions is that despite their selection for the post of School Lecturer [English] in pursuance of advertisement issued by the RPSC Ann.1 dated 18th August, 2004 and being placed in the select list, they were not considered for appointment despite the fact that list was made operative and few out of them got appointment which is evident from document Ann.9 dated 16th August, 2007 placed by the petitioner on record with the rejoinder. Post of School Lecturer is included in the Schedule appended to Rajasthan Educational Service Rules, 1970. Advertisement was issued by the RPSC on 18th August, 2004 for the post of School Lecturer in various subjects including CW 8650/07 [2] English with which the petitioners are presently concerned. In all 271 posts were advertised. Petitioners being eligible submitted their application in open/OBC category and were finally appeared for the screening test – result whereof was declared on 24th May, 2006 in which all the petitioners were declared successful. Thereafter, they were called for interview and the Commission prepared list and selected 194 candidates in the main list and 77 posts reserved for SC/ST remained unfilled as the suitable candidates from reserved category were not available and selected 38 candidates in reserved list. All the petitioners except petitioner No.2 Gopal Choudhary in CW No.8650/07 finds place in the reserve list at Nos.6, 7, 25, 28, 29 & 36 respectively. In terms of pre-amended Rule 7(4) of the Rules, 1970 if suitable candidates in reserve category i.e. SC/ST if are not eligible or if they are not found suitable, such unfilled vacancies can be filled in accordance with normal procedure and at the same time, such number of vacancies which remained so unfilled from SC/ST shall carry forward to subsequent three recruitment years in total and thereafter, reservation would lapse, but by notification dated 10th October, 2002 amendment was made under sub-rule (4) of Rule 7 whereby vacancies once identified and reserved for the members of SC/ST shall not be filled by adopting normal procedure if they are not either eligible or found suitable, but liberty was granted to make ad hoc appointments till such vacancies are filled by the members of reserved category. It is relevant to mention that amendment notification dated 10th CW 8650/07 [3] October, 2002 came into force with immediate effect. As such, the state government made clarification by issuance of circular Ann.6 dated 22nd June, 2004 whereby it was clarified that such vacancies, which were available on or before 10th October, 2002 the date on which amendment was made under Rule 7(4) of the Rules against such vacancies if members of SC/ST are not eligible or not found suitable, the same can be filled by adopting normal procedure. It has also come on record from the reply filed by the Commission in Para (e) that earlier vide Advertisement dated 08/06/2001 242 posts of School Lecturer [English] were notified for all the categories, but later on vide corrigendum dated 23/01/02 all 242 posts were notified as reserved for SC/ST category and in the process of selection 94 candidates were selected and 148 posts reserved for SC/ST category were remained unfilled and thus in the present advertisement dated 18/08/04 out of 271 vacancies notified 148 vacancies reserved for SC/ST category were also included. Thus, it is clear that these 148 vacancies remained reserved for SC/ST category were of the period prior to 10/10/02. It is evident from Ann.10 also that these 148 vacancies out of vacancies advertised were to be filled in accordance with pre-amended Rule 7(4) of the Rules, 1970 and on account of non-availability of members of SC/ST, such unfilled vacancies were required to be filled by adopting general procedure. It has also come on record from the reply filed by the Commission that against 271 vacancies advertised, 77 vacancies were remained CW 8650/07 [4] unfilled which are reserved for the members of SC/ST on account of non-availability of suitable candidates from reserved category and at the same time, respondents selected 38 candidates and placed them in the reserved list which includes names of present petitioners also. Counsel for petitioner submits that once 148 vacancies reserved for SC/ST were included in the advertisement Ann.1 were of the period prior to 10 October, 2002 which remain unfilled on account of non-availability of SC/ST candidates, respondents were under an obligation to fill the same by adopting general procedure in terms of pre-amended R.7(4) of Rules, 1970 and apart from it, once the alleged reserved list has been operated upon by the respondents and appointments were made vide order Ann.9 dated 16 August, 2007, petitioners too are entitled for consideration for appointment since sufficient number of vacancies reserved for SC/ST are available for the period prior to 10 October, 2002 and thus, action of the respondents in not giving appointments by adopting general procedure in filling such reserved vacancies is wholly arbitrary and is also in violation of pre-amended Rule 7(4) of the Rules 1970. Reply has been filed by the respondents wherein it has been averred that result of the selection was declared on 16 August, 2006 and against 271 vacancies, 194 were selected in the main list and 77 vacancies reserved for SC/ST remained unfilled on account of non-availability of suitable candidates from reserved category. But at the same time, the Commission has not selected candidates by adopting normal procedure CW 8650/07 [5] and placed them in the main list. It has also been averred that petitioners' name find place in the reserved list, its life was upto 17th April, 2007 and no requisition was received by the Commission. But this fact found to be incorrect since the state government has given appointment to few applicants out of alleged reserved list vide order Ann.9 dated 16th August, 2007 and if applicants have been appointed from reserved list, certainly list has been forwarded by the Commission to the State Government in the absence whereof appointments could not have been made. So far as reply filed by the respondent-State is concerned, it is totally evasive and nothing has been averred so far it relates to the grievance of the petitioners raised in the instant petitions. Counsel for the State submits that government has nothing to do with the matter and the controversy raised is directly concerned with the Commission. It is really very strange that the government who is ultimate employer and the Commission is their recruiting agency and after recommendations are made, it is government to examine while making final appointment of the selected candidates is not inclined to assist the Court. I have considered the submission of counsel for parties and perused the material on record. Post of School Lecturer [English] is included in the Schedule appended to the Rajasthan Educational Service Rules, 1970 which is also to be filled by direct recruitment through RPSC. Petitioners got their regular selection after undergoing process in terms of advertisement CW 8650/07 [6] issued by the Commission and undisputedly, all the petitioners find place in the reserve list. This fact is not controverted that out of 271 vacancies advertised 148 vacancies reserved for SC/ST category were of the period prior to issuance of notification dated 10th October, 2002 where the government has made a clarification dt.22/06/04 that vacancies which were available prior to notification dated 10/10/02 have to be filled in terms of pre-amended Rule 7(4) of the Rules, 1970 holding that vacancies available prior to amendment notification reserved for the members of SC/ST if suitable candidates are not available, the same can be filled by adopting normal procedure. It goes without saying that persons who have been placed in the select list in the general category can certainly be considered for appointment against the vacancies which were notified under the advertisement reserved for the members of SC/ST obviously if suitable candidates were not available. In such circumstances, their names were required to be placed in the main list itself for appointment. From the reply filed by the respondent- Commission this fact is also not disputed that 77 vacancies reserved for SC/ST could not be filled on account of non-availability of suitable candidates and the reserved list contains only 38 candidates as such once the members of SC/ST were not found suitable, in opinion of this court, the respondents were under an obligation to fill the vacancies available duly advertised reserved for SC/ST by adopting normal procedure from the candidates who are selected from general/OBC category and their names are to be included in the main list itself. Apart from it, once the CW 8650/07 [7] select list has been operated upon and appointments have been made by the government which is evident from document Ann.9 dated 16th August, 2007. In opinion of this court, there was no justification available to deny appointment to present petitioners as well who have been finally selected and were entitled to be considered for appointment on the basis of normal procedure, particularly, when the suitable candidates from reserved category were not available with the Commission in terms of pre-amended R.7(4) of Rules, 1970. Denial of fair consideration of appointment to the petitioners certainly, in opinion of this court, is in violation of Article 14 of the Constitution. Consequently, both the writ petition stand allowed. Respondents are directed to consider the petitioners except petitioner No.2 Gopal Choudhary in CW No.8650/07 for appointment on the basis of their final selection in pursuance of advertisement Ann.1 dated 18th August, 2004 on the post of School Lecturer [English] against 77 vacancies reserved for SC/ST which could not be filled on account of non-availability of suitable candidates by adopting general procedure. However, it is made clear that they will be entitled for seniority as per their placement in the order of merit and will get notional fixation of pay, but no pecuniary benefits for the intervening period. Respondents are further directed to comply with the order within three months. No order as to costs. [AJAY RASTOGI], J. FRBOHRA8650CW2007 22-5.doc