HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 792/2020
The Rajasthan Public Service Commission, Ajmer Through Its
Secretary.
----Appellant
Versus
1. Babli Gurjar D/o Shri Ramsingh Gurjar, Aged About 24
Years, R/o Village Maniyapura, Post Kota Chhabar, Tehsil
Masalpur, Distt. Karauli (Raj.).
2. The State Of Rajasthan, Through Its Principal Secretary,
Department Of Administrative Reforms, Govt. Of
Rajasthan, Secretariat, Jaipur.
----Respondents
For Appellant(s) : Mr. M.F. Baig
For Respondent(s) : Mr. Vigyan Shah with
Mr. Harendra Neel, Mr. Akshit Gupta
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE KUMARI JUSTICE REKHA BORANA
Judgment
08/11/2021
This appeal is filed by the Rajasthan Public Service
Commission ('RPSC for short') to challenge the judgment of the learned Single Judge dated 25.08.2020 in Civil Writ Petition No.13439/2019.
Brief facts are as under:-
The RPSC had issued an advertisement on 02.04.2018 inviting applications for various posts of Rajasthan State and Subordinate Services by way of direct recruitment. The advertisement notification not only declared the total number of vacancies, gave break up of such vacancies category-wise such as (Downloaded on 12/11/2021 at 09:18:37 PM) (2 of 7) [SAW-792/2020] reserved for different categories and for general candidates. The petitioner applied in response to the said advertisement as a woman general category candidate. It is undisputed that the petitioner belongs to OBC category. The RPSC conducted the preliminary examination on 05.08.2018 and result thereof was declared on 23.10.2018. The candidates who were shortlisted for further recruitment process were subjected to main written examination conducted on 25.06.2019 and 26.06.2019. Couple of days before the main examination, a notification was issued by the State Government on 23.06.2019 providing for 5% reservation in favour of Most Backward-class Candidates. In this notification itself it was provided that those recruiting agencies who are conducting the selection process which are underway, would allow the eligible candidates to change their categories.
The case of the original petitioner is that the original recruitment advertisement did not reserve any seat for women MBC category candidates since at the relevant time only 1% seats were reserved for MBC candidates. However, upon increase in the quota of MBC candidates from 1% to 5%, in the recruitment process in question three vacancies were earmarked for women MBC candidates. Since originally the recruitment notification did not reserve any seats for women MBC candidates, the petitioner had declared herself to be a general category candidate. However, prompted by the change of circumstances on account of the government notification dated 23.06.2019 and consequential effect of increase in reservation in favour of MBC candidates on the ongoing recruitment process, the petitioner applied to the RPSC on 09.07.2019 and requested that she be treated as an MBC (Downloaded on 12/11/2021 at 09:18:37 PM) (3 of 7) [SAW-792/2020] candidate. In this representation she had highlighted the change of circumstances as a reason for her request.
The RPSC did not respond to this request and the written main examination results were declared on 09.07.2020. In the meantime, the petitioner had filed the present petition making a prayer that the authorities be directed to allow her to change the category from general to MBC category in the selection process.
The learned Single Judge allowed the petition by the impugned judgment relying on the decision of the Division Bench of this Court in the case of Kavita Choudhary Vs. The Registrar (Examination), Rajasthan High Court, Jodhpur and Anr., (Special Appeal (Writ) No.1700/2017) dated 01.11.2017. In the said case, the Division Bench had allowed a candidate for selection in public service to change the category on the basis of two grounds, firstly that the candidate had made a mistake in filling up the form in not claiming the benefit of reservation though entitled to, and that giving any such direction for change of category would not jeopardize any third party vested interest.
Appearing for the appellant learned counsel Mr. M.F. Baig submitted that the original petitioner had not claimed the benefit of OBC category and any change in percentage of MBC category candidates midway through the selection process would not entitle to her to change category from general to MBC candidate. He submitted that the decision in case of Kavita Choudhary (supra) came up for consideration before another Bench in the case of Sonal Tyagi Vs. State of Rajasthan (DBCWP No.7840/2019) decided on 12.07.2019, in which it was observed that the view taken in the said case cannot be treated as a biding precedent because before the Court a decision of Bench (Downloaded on 12/11/2021 at 09:18:37 PM) (4 of 7) [SAW-792/2020] of coordinate strength was not cited and therefore could not be taken into consideration.
On the other hand, learned counsel for the original petitioner vehemently contended that petitioner though belongs to MBC category, since the original recruitment advertisement did not reserve any seat for women MBC candidate, she had no reason to claim the benefit as such a candidate. On the other hand, the question whether the members belonging to the Gurjar community who were previously granted separate reservation as Special Backward Class Candidates (which was later on struck down by the High Court) can claim the benefit of OBC reservation itself was doubtful. The petitioner, therefore, filled up the form as general category candidate. Since it is not disputed by the authorities that she belongs to MBC category, when by virtue of the Government Notification dated 23.06.2019, seats were available for reserved category of women MBC candidates, she desired the category change and made a representation to RPSC making out grounds in support thereof. Counsel submitted that even Government Notification dated 23.06.2019 envisages that in the ongoing selection process category change by the eligible candidates should be permitted.
Having heard learned counsel for the parties and having perused the documents on record, we find that the case on hand does not fall either within the parameters of Kavita Choudhary (supra) or within the parameters of Sonal Tyagi (supra). The case presents the peculiar facts and the outcome of the litigation, therefore must rest on the special facts of the case at hand. To recapitulate the relevant facts, in response to the public advertisement issued by the RPSC the petitioner filled up a form (Downloaded on 12/11/2021 at 09:18:37 PM) (5 of 7) [SAW-792/2020] and declared herself as an open category candidate. In other words, even though the petitioner belonged to OBC category, she did not declare herself as such while filling up the form for selection. In the original recruitment advertisement, no seats for women MBC category candidates were advertised. This position materially changed when the Government increased the percentage of reservation in favour of MBC category candidates from 1% to 5%. As a result, fresh classification of vacancies resulted into 3 seats being reserved for women MBC candidates. On account of this change in circumstances and also on account of the prescription so made in the Government Notification dated 23.06.2019, the RPSC issued a Press Note in the form of corrigendum dated 01.07.2020 and invited eligible OBC candidates to switch over to MBC category for which time of three days was granted. The petitioner did not get the benefit of this notification, since, as noted, at the outset she has not declared herself to be OBC candidate and the category change provided by the RPSC was only from the OBC category to MBC category.
The present is not a case where the candidate claims to have made a mistake or bonafide error in filling up the form which he or she later on realised and sought permission to make necessary correction. This is a case where the petitioner for whatever reasons best known to her and as per her advice declared herself to be a general category candidate though she belongs to OBC category. The explanation of the counsel for the petitioner that to avoid any controversy and to avail benefit of unreserved seats she did not fill up the form as OBC candidate, cannot be accepted. As per settled law, a candidate belonging to reserved category cannot be kept out of consideration for open category seats if on his or (Downloaded on 12/11/2021 at 09:18:37 PM) (6 of 7) [SAW-792/2020] her open merit he or she deserves inclusion in the select list. Reference in this respect can be made to the judgment of the Supreme Court in the case of R.K. Sabharwal and Ors. Vs. State of Punjab and Ors., (1995) 2 SCC 745. Thus, only in order to take the benefit of open category seats it was not even necessary for the petitioner to disclaim her status as an OBC candidate.
It may be that initially when the advertisement was issued by the RPSC inviting applications from eligible candidates, in absence of any seat being reserved in favour of women MBC category candidates, the petitioner had no reason or possible inclination to claim benefit of such class. However, this did not prevent the petitioner for claiming the benefit of OBC reservation as per the rules. When the percentage of reservation of seats in favour of MBC was increased from 1% to 5%, obviously, there would be consequential changes and it was precisely for this reason the Government in its notification dated 23.06.2019 has specified that by implementing this change in the ongoing selection process, the concerned candidates should be allowed to make category change. It was on account of these developments which happened during the pendecy of the selection process that the RPSC issued the above noted corrigendum dated 01.07.2020 and permitted those OBC candidates who had not claimed the benefit of MBC to do so. This clearly did not cover the case of the petitioner, since, as noted, at the outset she never filled up the form as an OBC category candidate but declared herself as a general category candidate.
It may seem to be a bit harsh for the original petitioner but we cannot deviate from the legal position only for an individual (Downloaded on 12/11/2021 at 09:18:37 PM) (7 of 7) [SAW-792/2020] case. Public service examination and recruitment processes have to be streamlined and if such examinations are altered without sound reasons, the same may throw the entire process out of gear. Large number of candidates may come forward claiming the similar benefits and that would be detrimental to smooth selection process for public posts.
In the result, the appeal is allowed. The judgment of the learned Single Judge is set aside.
(REKHA BORANA),J (AKIL KURESHI),CJ
Kamlesh Kumar/N.Gandhi/2
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