SBCWP No.2280/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.2280/2002. Anita Kumari Vs. State of Rajasthan & Anr. Date of order : November 05, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.C. Gupta for the petitioner. Shri Hemant Gupta, Additional Government Counsel for the State. **** Reportable BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition seeks to challenge the action of the respondents in not considering the candidature of the petitioner for appointment on the post of Primary School Teacher in Zila Parishad, Bundi pursuant to the advertisement issued on 13/6/1998 in the reserved category to the extent of 16% of the quota meant for the said category. 3) Zila Parishad Bundi advertised 100 posts of Primary School Teacher Gr.III vide Advertisement No.11/98 on 13/6/1998. Advertisement provided that SBCWP No.2280/02. 2 16% out of that posts shall be reserved for Scheduled Castes candidates. Subsequently, however, they made the appointments against 128 posts. 4) Learned counsel for the petitioner has relied on Constitution Bench judgment of Supreme Court in Indra Sawhney & Ors. Vs. Union of India {1992 Supp(3) SCC 210} and argued that respondents have illegally treated the selection of the candidates named Kajod who secured 90.421%, Janshi Lal who secured 85.497%, Satya Narayan Verma who secured 84.591%, Prakash Chand who secured 83.817% and Ram Swaroop who secured 83.328% who though belonged to SC but secured more marks than the last candidate in general category. The last candidate who secured appointment in the general category/open category is Madhu Sharma who has secured 81.85%. Learned counsel therefore submitted that though they belong to Scheduled Castes Category but in view of the fact that since they have secured merit higher than that of the cut-off marks in the general category, therefore, as per the pronouncement of the Hon'ble Supreme Court in Indra Sawhney supra, the selection in question ought to have been treated the selection in general/open category. If the respondents would have correctly applied this law of reservation, the petitioner who secured 72.671% marks, would have been correspondingly pushed up as she is entitled to appointment as per her merit in SBCWP No.2280/02. 3 reserved category. Learned counsel referred to the communication of the Panchayat Raj Department addressed to the Additional Collector Bundi dated 11/9/2001 wherein, it was conveyed that the Zila Parishad Bundi has not applied the law of reservation correctly by not treating 5 members of Scheduled Castes category in general merit even though they secured more marks than the cut-off marks of general category candidates. In the communication, it is also stated that in fact, out of 20 vacancies of reserved for Scheduled Castes, only 17 candidates belonging to Scheduled Castes have been given appointment in which, 5 candidates are such whose marks are more than the last candidate of the general category. 5) Shri Hemant Gupta, learned Additional Government Counsel opposed the writ petition and argued that respondents have given appointments strictly in accordance with the Circular of the Government dated 20/11/1997 as well as the guidelines laid down by the Supreme Court in R.K. Sabharwal and others Vs. State of Punjab and others {(1995) 2 SCC 745}, in which, Supreme Court held that roster has to be based on 'post based roster point' of a particular selection. Learned counsel submitted that the candidate who was highest in the Scheduled Castes categtory having secured 90.421% marks at Sr.No.14 in the merit list was taken at roster point No.7 and last candiate Manju Kumari who secured 76.199% marks SBCWP No.2280/02. 4 at Sr.No.225 in the seniority list was taken on roster point No.107. Petitioner's name thus appeared far below the name of last candidate appointed at roster point No.107. 6) I have given my anxious consideration to the arguments aforesaid and perused the material on record. 7) It would be evident from above that what was contended by the learned counsel for petitioner has not been directly answered by the learned counsel for respondents. Petitioner has asserted the fact that a communication was sent by the Department of Panchayati Raj to the Zila Parishad that out of 20 reserved posts of Scheduled Castes, only 17 candidates have been appointed, out of which, 5 candidates are such whose marks are more than the last candidate of the general category. This has been substantiated by the petitioner that 5 candidates have undeniably secured more than 81.85% marks than the last candidate Manju Kumari in general category. Such an averment made in para 2(a) of the writ petition has not been denied by the repsondents in their counter affidavit. Even reliance placed by the learned counsel for the respondents on the judgment of Supreme Court in R.K. Sabharwal supra on the subject is wholly misconceived because in that judgment too, Supreme Court while reiterating the law laid down by the Constitution Bench of Supreme Court SBCWP No.2280/02. 5 in Indra Sawhney supra has held that when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. It was further held that duration of operation of such roster, operative only till all the roster points in the cadre are filled and the quota prescribed by the instructions is achieved and not thereafter. Subsequent vacancies have to be filled from the categories to which the post belonged in the roster, albeit, in case of non- availability of a reserve candidate at the roster point, that point can be carried forward and has to be treated in addition. This law was reitereated by number of subsequent judgments of Supreme Court, reference to all of which was made by me in my earlier judgment in Kavita Choudhary Vs. State of Rajasthan & Ors. {2006(5) WLC Raj. 652). 8) In view of the aforesaid discussion, the action of the respondents in not treating the SBCWP No.2280/02. 6 candidates belonging to Scheduled Castes in general/reserved category and treating them as appointed against the reserved quota inspite of the fact that they secured more marks than the marks secured by the last candidate in general category, has to be declared illegal and unconstitutional. 9) In the result, writ petition is allowed and respondents are directed to consider case of the petitioner for appointment on the post of Primary School Teacher treating above referred to 5 candidates, having been appointed in general category and if eventually, name of the petitioner is pushed up to be within the reserved quota, consider her case for appointment in accordance with law. The petitioner however shall be entitled to only notional benefits for the intervening period but her appointment shall relate to the date on which the candidate immediately below her in merit was so appointed, or in the absence thereof, the last appointed candidate in that select list. Compliance of the judgment shall be made within a period of three months from the date, its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. anil