The Rajasthan Public Service ... vs Babli Gurjar D/O Shri Ramsingh ...
2021 Latest Caselaw 6204 Raj/2

      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

(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

(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

(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

(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

(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

(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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