Pramita Shrimali vs R.P.S.C. And Ors
2021 Latest Caselaw 18175 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 504/2003

Pramita Shrimali W/o Shri Kamlesh Shrimali, aged about 30 years, resident of 22, Chhoti Brahampuri, Udaipur

----Petitioner Versus

1. Rajasthan Public Service Commission, Ajmer - Through its Secretary

2. State of Rajasthan - through the Secretary, School Education, Secretariat, Jaipur

3. The Director, Secondary Education, Bikaner.

                                                                  ----Respondents


For Petitioner(s)          :     None present
For Respondent(s)          :     Mr. Tarun Joshi through VC



             HON'BLE MR. JUSTICE VIJAY BISHNOI

                                  Judgment

02/12/2021

This writ petition has been filed by the petitioner seeking the

following reliefs:-

"It is, therefore, respectfully prayed that by a writ of mandamus, the respondent RPSC may kindly be directed to call the petitioner and all other qualified persons belonging to General category for the interview on the post of Lecturer (English) and the petitioner may be considered duly by the RPSC for the post of lecturer (English), on the basis of the interview letter issued to her dated 3.10.2002 by the RPSC as well as the qualification possessed by her.

The RPSC may kindly be directed not to call for the interview, the candidates belonging to the SC/ST category only;

The RPSC may also kindly be directed not to give appointment and consequent posting to

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the candidates belonging to the SC/ST category only, in case they have already been interviewed.

Any other appropriate writ, order or direction, which this Hon'ble Court deems just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner.

Cost of the writ petition may kindly be awarded to the petitioner."

The case set up by the petitioner in the writ petition is that

the respondent No.1-RPSC issued notification dated 8.6.2001

published in news-paper on 27.6.2001 for appointment of qualified

teachers for various subjects. Pursuant to the said notification,

the petitioner applied for the post of Lecturer (English) School

Education and she appeared in the examination. The result of the

examination was declared on 20.7.2002 and the petitioner has

passed the same. It is further contended that the petitioner was

called for interview and the date of interview was fixed as

29.10.2002. It is contended that later on, on 23.10.2002, the

respondent-RPSC postponed the interview for the post of Lecturer

(English) School Education, 2002 by issuing information regarding

the same in the newspaper. It is further contended that thereafter

on 4.1.2003, a news was published in the daily newspaper that

interviews for the post of Lecturer (English) School Education for

SC/ST candidates were going to be held from 28 th January, 2003

to 1st February, 2003 and 3rd February, 2003 to 6th February, 2003.

It is further averred in the writ petition that only SC/ST candidates

are called for interview whereas the petitioner and other similarly

situated candidates of general category have not been called for

the interview. The petitioner has contended that the action of the

respondents of not calling the candidates of the general category

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for interview is discriminatory and violative of Article 14 and 16 of

the Constitution of India. The petitioner in this writ petition has

prayed for granting the afore-quoted reliefs.

Reply to the writ petition has been filed on behalf of the

respondent-RPSC wherein it is stated that the vacancies for the

post of Lecturer (English) School Education have been advertised

by the RPSC treating it to be the vacancies of all categories.

However, subsequently the State Government realized that while

working out the vacancies, the unfilled vacancies of the earlier

years of reserved categories have not been taken into

consideration and as such the corrigendum dated 23.1.2002 was

issued whereby it is made clear that the advertisement in question

was issued only in relation to the reserved category candidates to

fill up the back logs of the vacant posts meant for reserved

category candidates only.

Learned counsel for the respondents has submitted that the

controversy raised by the petitioner in this petition is squarely

covered by the decision rendered by this Court in Sukh Ram &

Ors. Vs. State of Rajasthan & Ors. Reported in RLW 2004

(4) Raj. 2128 wherein it is held that employer can fill up the

back log vacancies from the reserved category candidates and the

limit of 50% shall not apply in that situation. Learned counsel

has, therefore, submitted that in view of the judgment passed by

this Court in Sukh Ram's (supra), this writ petition deserves to be

dismissed.

It is noticed that while admitting the writ petition on

4.2.2003, this Court has allowed the petitioner to face the

interview provisionally, however, it was made clear that the result

of the petitioner shall not be declared without permission of the

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Court. It is also observed that the petitioner will not be entitled to

have any equity in her favour simply because she is permitted to

face the interview only by this Court. The said interim order was

made absolute on 18.8.2003.

During the pendency of this writ petition, no prayer to

declare the result of the petitioner has been made on her behalf at

any point of time either orally or through an application. Today

also, no one is present to argue the writ petition.

Learned counsel for the respondent-RPSC has informed this

Court that the selection process in pursuance to the advertisement

dated 8.6.2001 (Annex.1) has been concluded long back.

This Court in Sukh Ram's case (supra) has held as under:-

(8). Thus, it is clear that the Corrigendum Annex.2 has been issued to fill up the backlog vacancies for the SC/ST candidates. The Circular-Order Annex.R/1 specifically provides that backlog/carried forward reserved vacancies for SC/ST of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling limit of 50%. The ceiling limit of 50% would apply only in the case where the posts have been advertised for all categories of candidates including General Category, SC/ST, O.B.C. etc. on the total number of vacancies of the year. By the corrigendum Annex.2, the respondent have reserved all the 300 posts for the SC/ST candidates. Thus, the ceiling of 50% shall not apply in this case because all the posts are sought to be filled-up exclusively to fill up the back-log vacancies. So far as filling the ensuing vacancies of subsequent years are concerned, the respondents may issue fresh advertisement inviting applications from all categories of candidates including the members of General Category and O.B.C. etc.

(9). It has been contended by the learned counsel for the petitioners that without amending the existing rule 7 of the Rules, 1971, the State Government, vide Circular-Order Annex.R/1 dated 20.10.2002, has amended the provision and authorised the Appointing Authorities to carry forward the backlog vacancies beyond the period of three years. The argument seems to be attractive but it is hollo in substance. Article 16(4B) reads as under:-

"Noting in this Article shall prevent the State from considering any unfilled vacancies of a year which

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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 clause 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.''

(10). Thus, the State Government can take a policy decision in order to pay regard to the mandate of the Constitution.

Constitution is the touch-stone to test the validity of any rule or statute. Amendment of a rule is a lengthy procedure and to meet with the urgent need and while following the mandate of the Constitution, the State Government has issued the Circular-Order Annex.R/1. The delay, inaction, omission or apathy in amending the relevant provisions of the Rules will in time will not extinguish the rights provided to the members of the SC/ST under the Constitution of India. The provisions of Article 16 (4B) are constitutional mandates and any rule repugnant to such provision would be automatically eclipsed.

(11). In Ashok Kumar Gupta & Ors. vs. State of U.P. & Ors. (1), the Three Judges Bench of the Hon'ble Supreme Court observed that ordinarily right to promotion is a statutory and not a fundamental right; however, Articles 16(4A) and (1) and 14 read together guarantee the members of SC/ST a fundamental right to promotion where they do not have adequate representation, constantly with the efficiency of administration. The Apex Court further observed that every citizen or group of people has a right to a share in the governance of the State. The Scheduled Castes and Scheduled Tribes equally being citizens have a right to a share in the governance of the State. The Apex Court further held as under:-

"Equality of status and dignity of the individual will be secured when the employees belonging to SCs and STs are given an opportunity of appointment by promotion in higher echelons of service so that they will have opportunity to starve towards excellence individually and collectively with other employee s in improving the efficiency of administration. Equally they get the opportunity to improve their efficiency and opportunity to hold offices of responsibility at hierarchical levels.... Unless one is given opportunity and facility by promotion to hold an office or a post with responsibilities, there would be no opportunity to prove efficiency in the performance of discharge of duties.''

(12). The Hon'ble Supreme Court, in Ashok Kumar Gupta's case (supra) further observed that those who are unequals

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cannot be treated by identical standard and the State must, therefore, resort to protective discrimination for the purpose of making people, who are factually unequal, equal is specific area. It would, therefore, be necessary to take into account de facto inequality which exists in the society and to take affirmative action by giving preference and making reservation in promotions in favour of the SC/ST candidates or by "inflicting handicaps on those more advantageously placed'', in order to bring about equality. Such affirmative action, though apparently discriminatory, is calculated to produce equality on a broader basis by eliminating de facto inequality and placing the members of SC/ST on the footing of equality with non-tribal employees so as to enable them to enjoy equal opportunity and to unfold their full potentiality.

The Apex Court further observed that protective discrimination envisaged in Articles 14(4) and 16 (4- A) of the Constitution of India is the armour to establish the said equilibrium between equality in law and equality in result as a fact to the disadvantaged and the principle of reservation in promotion provides equality in results. The Apex Court Court further held that in adjusting the competing rights of the SC/ST on the one hand and the employees belonging to the general category on the other hand, the balance in required to be struck by applying the egalitarian protective discrimination in favour of the SC/ST to give effect to the constitutional goals, policy and objective.

(13). There is yet another aspect of the matter. Every citizen or group of people has right to a share in the governance of the State. The Scheduled Castes and Scheduled Tribes equally being citizens have a right to a share in the governance of the State and in the permanent democracy service conditions are assured under Articles 309 to 312-A subject to the provisions of Articles 310 to 312-A subject to the provisions of Articles 310, 33 and 34 of the Constitution of India. The right to seek equality of opportunity to an office or a post under the State is a guaranteed fundamental right to all citizens alike under Article 16(1), the specie of Article 14, the genus.

(14). So far as the petitioners are concerned, no person can claim appointment as a matter of right and the only right available to them is consideration of their case for appointment. In the instant case, by the Corrigendum Annex.2, all the vacancies have been reserved for the members of SC/ST to filled up the separate and distinct group and as such the ceiling limit of 50% would not apply in the instant case in view of mandatory provision of Article 16 (4B) of the Constitution of India.

(15). In view of the aforesaid, I find no merit in these writ petitions and accordingly they are dismissed. There shall be no order as to costs. Interim orders stand vacated and the stay petitions are dismissed."

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In view of the law laid down by this Court in the Sukh Ram 's

case (supra) and taking into consideration the overall above noted

facts and circumstances of the case, I do not find any merit in this

writ petition. The same is, therefore, dismissed.

(VIJAY BISHNOI),J

4-Babulal/-

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