1 IN THE HIGH COURT OF JUDICTURE FOR RAJASTHAN AT JODHPUR. O R D E R Ravish Sharma. Versus State of Rajasthan & ors. S.B. Civil Writ Petition No. 2935/2006 ... Date of Order: January 22, 2007 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr. P.S. Bhati, for the petitioner. Mr. Rameshwar Dave, Deputy Govt. Advocate. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the non- petitioners to appoint him on the post of teacher Grade III in accordance with merit. I have heard learned counsel for the petitioner and the counsel appearing for the non-petitioners. It is contended by the learned counsel for the petitioner that the petitioner has been denied appointment on the ground that there are backlog of vacancies reserved for Scheduled Castes and Scheduled Tribes candidates and the petitioner is a candidate from general category. It is contended that the non-petitioners have calculated the backlog vacancies 2 for the year 1995-96 and 1996-97, which according to the learned counsel for the petitioner, have already expired in 1997- 98 and 1998-99 on completion of three years as the vacancies reserved for SC/ST candidates were not filled up during that course of time. In the writ petition, no foundation has been made as to the merit prepared by the non-petitioners. No merit has been filed. It is not clear from the writ petition as to whether the petitioner stands in the merit or not. Even otherwise, if the vacancies are sought to be filled-up by scheduled caste/scheduled tribes candidates being backlog vacancies meant for these classes, the petitioner has no claim against the backlog vacancies reserved for scheduled caste/scheduled tribes candidates. Article 16 (4B) of the Constitution of India reads as under:- “Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.” By the Notification dated 10-10-2002, in exercise of 3 the powers conferred by the proviso to Article 309 of the Constitution of India, His Excellency the Governor of the State made the following rule, further to amend various service rules including the Rajasthan Educational Service Rules, 1970 (for short, “the Rules, 1970” hereinafter). By the said Notification, rule 7 of the Rules, 1970 has been amended to the following effect:- “Appointment shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non- availability of the eligible and suitable candidates amongst the Scheduled Castes and the Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be carried forward until the suitable Scheduled Castes and the Scheduled Tribes candidate(s), as the case may be, are available. In any circumstances, no vacancy reserved for Scheduled Castes and the Scheduled Tribes candidates shall be filled by promotion as well as by direct recruitment from General category candidates. However, in exceptional cases where in the public interest the Appointing Authority feels that it is necessary to fill up the vacant reserved post(s) by promotion from the General category candidates on urgent temporary basis, the Appointing Authority may make a reference to the Department of Personnel and after obtaining prior approval of the Department of Personnel, they may fill be such post (s) by promoting the General category candidate(s) on urgent temporary basis clearly stating in the promotion order that the General category candidate (s) who are being promoted on urgent temporary basis against the vacant post reserved for Scheduled Castes or the Scheduled Tribes candidates, as the case may be, shall have to vacate the post as and when the candidate(s) of that category become available.” Learned counsel for the petitioner further contended 4 that the backlog vacancies cannot be carried forward after three years. The provisions of Article 16 (4B) are Constitutional mandates and any rule repugnant to such provision would be automatically eclipsed. Following the provisions of Article 16 (4B) of the Constitution of India and in order to achieve the goals prescribed under the Constitution of India, for protection of the rights of the members of Scheduled Caste and Scheduled Tribes and further in order to implement a policy decision, if certain steps have been taken by the State Government for protecting the rights of the members of SC/ST, the validity of such beneficial legislation cannot be challenged and the same may be given retrospective effect. In this view of the matter, I do not find any force in the contentions raised by the learned counsel for the petitioner. More so, the petitioner cannot claim appointment as a matter of right and the right available to him is only with respect to consideration of his case for appointment. In the instant case, in view of the provisions of Article 14 (4B) of the Constitution of India and the Notification dated 10-10-2002 issued by the State Government, the non-petitioners are justified in denying appointment to the petitioner on the ground that the remaining posts fall within the purview of backlog vacancies reserved for SC/ST candidates. In this view of the matter, I do not find any merit in 5 the writ petition and it is dismissed accordingly. There shall be no order as to costs. (H.R. PANWAR), J. mcs