Secretary vs Nilesh Kumar Jain S/O Shri ...
2021 Latest Caselaw 6685 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

         D.B. Special Appeal Writ No. 856/2020

1.    Secretary, Rajasthan Public Service Commission, Ajmer
2.    Chairman, Rajasthan Public Service Commission, Ajmer
                                                                   ----Appellants
                                  Versus
1.    Unnati Jain D/o Hari Prasad Gupta, R/o Plot No. 15,
      Shivaji Nagar, Housing Board, Dungarpur
2.    Sheetal Patel D/o Badrinath Patel, R/o Near Jain
      Temple, Vpo Kanba, Kanwa Dungarpur
3.    State     Of   Rajasthan,        Through         Principal      Secretary,
      Department         Of     Treasuries          And          Accounts   Dta,
      Secretariat Jaipur
                                                                 ----Respondents

Connected With D.B. Special Appeal Writ No. 398/2021 State Of Rajasthan, Through Principal Secretary, Department Of Treasuries And Accounts Dta, Secretariat, Jaipur

----Appellant Versus

1. Unnati Jain D/o Hari Prasad Gupta, R/o Plot No. 15, Shiavji Nagar, Housing Board, Dungarpur

2. Sheetal Patel D/o Badrinath Patel, R/o Near Jain Temple Vpo Kanba, Kanwa Dungarpur

3. Secretary, Rajasthan Public Service Commission, Ajmer

4. Chairman, Rajasthan Public Service Commission Ajmer

----Respondents D.B. Special Appeal Writ No. 868/2020

1. Secretary, Rajasthan Public Service Commission, Ajmer.

2. Chairman, Rajasthan Public Service Commission, Ajmer.

                                                                  ----Appellants





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                                 Versus

1. Nilesh Kumar Jain S/o Shri Bhagwati Lal Jain, R/o 116, Opp. New Sabji Mandi, Near Swastik Education Center, Patrakar Colony, Dugarpur.

2. Mayuri Bhavsar D/o Bharat Chandra Bhavsar, R/o Bankora Tehsil Aaspur Distt. Dugarpur.

3. Monika Patidar D/o Harish Chandra Patidar, R/o Jogpur Tehsil Galiyakot, Distt. Dungarpur.

4. Parveen Patidar S/o Shri Shivram Patidar, Gowari Tehsil Sagwara, Distt. Dungarpur.

5. Mintal Chouhan S/o Shri Jaswant Singh Chouhan, R/o Opp. No. 6 School Gokuldham Surya Nikunj, Tehsil Dugarpur.

6. Harshvardhan Singh Rajawat S/o Himmat Singh Rajawat, R/o Near Police Line Gate, Panchayat Samiti Quarter No. 33, Tilak Nagar, Dugarpur.

7. Khushveer Singh Chouhan S/o Shri Narendra Singh Chouhan, R/o 437, Pragati Nagar, Dungarpur.

8. Yugal Pahad S/o Shri Kailash Chandra Pahad, R/o 2/10 Shivji Nagar, Dungarpur.

9. Priyanka Patidar D/o Shri Vitthal Patidar, R/o Mpo Chokhala, Tehsil Bagidora, Distt. Banswara.

10. Hemant Patidar S/o Shri Jetendra Patidar, R/o Vpo Chokhala, Tehsil Bagidora, Distt. Dungarpur.

11. Kunal Kamra S/o Shri Dhenesh Punjabi, R/o Flat No. 107, Gokulshree Complex, Wadiya Colony, Ratitalal, Banswara.

12. Yakeen Jain S/o Manmal Jain, R/o Vpo Arthuna, Tehsil Gadi, Distt. Banswara.

13. State Of Rajasthan, Through Principal Secretary, Department Of Treasuries And Accounts Dta, Secretariat Jaipur.

                                                           ----Respondents
                          Connected With


          D.B. Special Appeal Writ No. 341/2021
State     Of   Rajasthan,         Through          Principal     Secretary,



                                        (3 of 20)                    [SAW-856/2020]

Department Of Treasuries And Accounts Dta, Secretariat, Jaipur.

----Appellant Versus

1. Nilesh Kumar Jain S/o Shri Bhagwati Lal Jain, R/o 116, Opp. New Sabji Mandi, Near Swastik Education Center, Patrakar Colony Dungarpur.

2. Mayuri Bhavsar D/o Bharat Chandra Bhavsar, R/o Bankora, Tehsil Aaspur District Dungarpur.

3. Monika Patidar D/o Harish Chandra Patidar, R/o Jogpur Tehsil Galiyakot District Dungarpur.

4. Pareveen Patidar S/o Shri Shivram Patidar, Gowari Tehsil Sagwara District Dungarpur.

5. Mintal Chouhan S/o Shri Jaswant Singh Chouhan, R/o Opp. No. 6 School Gokuldham Surya Nikunj, Tehsil Dungarpur.

6. Harshvardhan Singh Rajawat S/o Himmat Singh Rajawat, R/o Near Police Line Gate, Panchayat Samiti Quarter No. 33, Tilak Nagar Dungarpur.

7. Khushveer Singh Chouhan S/o Shri Narendra Singh Chouhan, R/o 437, Pragati Nagar Dungarpur.

8. Yugal Pahad S/o Shri Kailash Chandra Pahad, R/o 2/10, Shivji Nagar, Dungarpur.

9. Priyanka Patidar D/o Shri Vitthal Patidar, R/o Mpo Chokhala, Tehsil Bagidora District Dungarpur.

10. Himmat Patidar S/o Shri Jetendra Patidar, R/o Vpo Chokhala Tehsil Bagidora District Dungarpur.

11. Kunal Kamra S/o Shri Dhenesh Punjabi, R/o Flat No. 107, Gokulshree Complex, Wadiya Colony, Ratitalal, Banswara Rajasthan.

12. Yakeen Jain S/o Manmal Jain, R/o Vpo Arthuna, Tehsil Gadi District Banswara.

13. Secretary, Rajasthan Public Service Commission Ajmer.

14. Chairman, Rajasthan Public Service Commission Ajmer.

                                                              ----Respondents





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 For Appellant(s)              :    Mr. Mirza Faisal Baig
                                    Dr. Ganesh Parihar, AAG with
                                    Mr. Ashish Yadav
 For Respondent(s)             :    Mr.   Vigyan Shah through VC
                                    Mr.   Harendra Neel
                                    Mr.   Akshit Gupta
                                    Mr.   Raghunandan Sharma

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA

Judgment

20/11/2021 DB Civil Misc. Appln. No.551/2020 in DBSAW No.856/2020 DB Civil Misc. Appln. No.173/2021 in DBSAW No.398/2021 DB Civil Misc. Appln. No.552/2020 in DBSAW No.868/2020 DB Civil Misc. Appln. No.192/2021 in DBSAW No.341/2021

These applications are filed by the appellants State

Government as well as Rajasthan Public Service Commission

(for short 'the RPSC') seeking condonation of delay caused in

filing the respective appeals. For the reasons stated in these

applications and those made out before us during course of the

arguments, delay is condoned. The applications are disposed

of.

D.B. Civil Special Appeal (Writ) Nos.856/2020, 398/2021, 868/2020, 341/2021:-

These appeals arise out of the common judgment of the

learned Single Judge dated 20.12.2019 passed in Civil Writ

Petition No.12691/2017(in case of Nilesh Kumar Jain and Ors.

Vs. State of Rajasthan and Anr.), Civil Writ Petition

No.12688/2017(in the case of Unnati Jain and Anr. Vs. State of

Rajasthan and Ors.) and Civil Writ Petition No.13422/2017(in

the case of Naveen Kumar Khandal and Ors. Vs. State of

Rajasthan and Ors.).

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Brief facts are as under:-

Part 10 of the Constitution of India pertains to Scheduled

and Tribal Areas. Article 244 contained in the said Part pertains

to Administration of Scheduled Areas and Tribal Areas. Clause

(1) of Article 244 provides that the provisions of the Fifth

Schedule shall apply to the administration and control of the

Scheduled Areas and Scheduled Tribes in any State other than

the States of Assam, Meghalaya, Tripura and Mizoram. For

these States as per Clause (2) of Article 244 special provisions

are contained in Sixth Schedule. Schedule V as referred to in

clause (1) of Article 244 contains the provisions as to the

administration and control of Scheduled Areas and Scheduled

Tribes. Part B of Schedule V pertains to administration and

control of Scheduled Areas and Scheduled Tribes. Clause 4

contained in Part B pertains to establishment of Scheduled

Tribes Advisory Council. Clause 5 pertains to law applicable to

Scheduled Areas. Sub-clause (1) thereof gives special powers

to the Governor by publication of notification to provide that

any particular Act of Parliament or of the Legislature of the

State shall not apply to a Scheduled Area or any part thereof.

Sub-clause (2) of Clause 5 authorizes the Governor to make

regulations for the peace and good government of any area in

a State which is for the time being a Scheduled Area.

In exercise of powers under proviso to Article 309 of the

Constitution the State Government had framed the Rules called

The Rajasthan Scheduled Areas Subordinate, Minsterial and

Class-IV Service (Recruitment and other Service Conditions)

Rules, 2014 (hereinafter to be referred as 'the said Rules').

Sub-rule (3) of Rule 1 of the said Rules provides that the Rules

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shall apply to entire establishments of the Subordinate,

Ministerial and Class-IV services of various departments

created in the Scheduled Areas within the State for

appointments to posts in connection with the affairs of the

State. Part-III of the Rules pertains to recruitment. Rule 6

contained in Part-III pertains to method of recruitment. Sub-

rule (1) of Rule 6 envisages recruitment to various posts in the

Scheduled Areas by direct recruitment or promotion as

provided under the Rules. Sub-rule (3) of Rule 6 pertains to

existing employees of the Government belonging to Scheduled

Areas and provides that such persons shall have one time

option for their absorption by exercising option within one

month from the date of receipt of the communication from the

appointing authority. The person so absorbed would not have

the right to be transferred and/or deputed outside this closed

cadre. Rules 8 to 11 of the said Rules provide for reservation in

favour of different categories in the vacancies in the Scheduled

Areas. Rule 13 requires the appointing authority to determine

the actual number of vacancies occurring during the year.

Part-IV of the said Rules pertains to procedure for direct

recruitment. Perusal of the Rules contained in this part would

show that such recruitment would be for the vacancies arising

for direct recruitment within the Scheduled Area. Part-V lays

down the procedure for recruitment by promotion. Here again

the Rules envisages such promotion to be made within the

cadre of the employees of the Scheduled Area.

Part-VI of the said Rules pertains to appointment,

probation and confirmation. Rule 31 contained in the said Part

pertains to appointment to the service and referes to selection

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of the candidates under Rule 25 and promotion under Rule 29

of the Rules and provides that the persons so appointed shall

be transferable from one place to the other within the

Scheduled Areas and further provides that a person so

appointed cannot be transferred outside this closed cadre in

any capacity which also includes deputation and reverse

deputation.

Perusal of these Rules leaves no manner of doubt that for

the purpose of recruitment, transfer and promotion the specific

cadres in the Scheduled Area are treated separately from the

rest of the employees of the State Government in similar

cadres. In other words the recruitment and promotion to the

vacancies in specified cadres in Scheduled Area would be an

independent exercise. Their transfer liabilities are confined to

Scheduled Area. For greater emphasis Rule 31 provides that a

person so appointed cannot be transferred outside this closed

cadre in any capacity which would also include deputation and

reverse deputation.

The RPSC at the request of the State Government

initiated the process of recruitment to the vacancies in the

cadres of Junior Accountant and Tehsil Revenue Accountant for

specified number of vacancies both in Scheduled Areas and

Non-Scheduled Areas by issuing an advertisement on

18.09.2013. The corrigendum was issued on 31.10.2014 as per

which 3207 posts of Non-Scheduled Areas and 290 posts of

Scheduled Areas were notified. The petitioners Nilesh Kumar

Jain and others and Unnati Jain and another (of Civil Writ

Petition No.12691/2017 and 12688/2017 respectively) belong

to Scheduled Areas and had applied for Scheduled Area posts

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in response to such advertisement. Petitioners Naveen Kumar

Khandal and others (of Civil Writ Petition No.13422/2017)

belong to Non-Scheduled areas and had applied for the

vacancies for such regions. This recruitment process ran into

multiple controversies and hurdles with which we are not

directly concerned.

Eventually the RPSC recommended selected candidates

for appointment to the State Government in the year 2017.

The appointment orders were issued on or around 30.06.2017.

All the petitioners of all three petitions before the learned

Single Judge were selected and offered appointments. The

controversy arose since the petitioners Nilesh Kumar Jain and

others and Unnati Jain and another were adjusted against Non-

Scheduled Area vacancies and posted outside the Scheduled

Areas, whereas the petitioners Naveen Kumar Khandal and

others were posted within the Scheduled Areas. All these three

groups of petitioners approached the High Court. The case of

Nilesh Kumar Jain and others and Unnati Jain and another was

that they could not have been posted against the vacancies of

Non-Scheduled Area. They ought to have been selected and

appointed on the vacancies notified for Scheduled Area and

accordingly they should have been so posted within such areas.

The case of Naveen Kumar Khandal and others was that they

belong to the Non-Scheduled Area and they could not have

been posted within the Scheduled Area.

The State and the RPSC appeared and took a stand that

the petitioners were selected against the general posts and

cannot claim posting only against the vacancies for Scheduled

Area as a matter of right. It was pointed out that these

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candidates of Scheduled Area had scored sufficient marks to be

selected against open area vacancies. In order to

accommodate maximum number of candidates from Scheduled

Area these more meritorious candidates were adjusted against

the posts of Non-Scheduled Area.

The learned Single Judge by the impugned judgment did

not approve the measures taken by the State Government and

RPSC in this regard. After referring to Rule 31 of the said Rules

the learned Judge opined that the action of the authorities in

shifting the Scheduled Area candidates to Non-Scheduled Area

is illegal and contrary to the spirit of the Rules. Eventually the

writ petitions were disposed of with the following directions:-

"10. The State Government and the RPSC are therefore be required to correct the list accordingly and henceforth not to intermingle the candidates of TSP with non-TSP candidates as the selections for the post of Junior Accountant under the advertisement governing this case, are over and appointments have already been made. Any candidate whose candidature would be affected on account of the re-framing of the list would not be ousted and an appointment shall remain saved as it is not his/her fault. These directions would therefore be for future selections alone.

11. Keeping in view the mandate of Rule 31 of the Rules of 2014,it is now directed that the State Government shall post the petitioners who are from TSP area only in accordance of Rule 31 in the TSP area and the petitioners will continue to have their status of being of TSP category.

12. These writ petitions accordingly stand allowed. The exercise for posting the petitioners in TSP area shall be conducted within a period of 3 months. This judgment passed shall be treated as judgment in rem and shall apply to all the candidates of TSP category who have been posted in non-TSP area. The natural corollary would be that all those candidates who have been posted in TSP area but belong to non-TSP category shall be shifted out of TSP.

13. All pending applications shall stand disposed of.

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14. A copy of this order be placed in each connected petition."

As per this judgment and the operative portion of the

judgment, the directions for adjustment of candidates of

Scheduled Areas and Non-Scheduled Areas who were posted in

Scheduled Areas would apply in rem and would cover all

similarly situated candidates whether they had approached the

High Court or not.

This judgment has given rise to four appeals. Appeal

Nos.341/2021 and 398/2021 are filed by the State Government

to challenge the judgment of the learned Single Judge in case

of Nilesh Kumar Jain and others and Unnati Jain and another.

Appeal No.856/2020 and 868/2020 are filed by the RPSC to

challenge the same judgment in relation to the same petitions.

There is no challenge to the judgment of learned Single Judge

insofar as it relates to Writ Petition No.13422/2017 filed by

Naveen Kumar Khandal and others who happened to be Non-

Scheduled Area candidates posted in the Scheduled Area.

Appearing for the appellants learned counsel raised following

contentions:-

(1) The principle adopted by the authorities was just and

proper. Since petitioners Nilesh Kumar Jain and others and

Unnati Jain and another were found to be meritorious, they

were first adjusted against the vacancies of Non-Scheduled

Area. This enabled the State Government to accommodate

larger number of candidates of Scheduled Area who but for this

devise could not have been appointed.

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(2) This policy is neither illegal nor arbitrary nor opposed to

any other Rule. The learned Single Judge should not have

disturbed the methodology adopted by the authorities.

(3) It was argued that the judgment of the learned Single

Judge would adversely affect large number of persons who

were not joined as respondents. For non-joinder of necessary

parties the petitions should have been dismissed.

(4) It was lastly contended that applying the ratio to all

selected candidates in the cadre whether they have approached

the High Court or not would create an administrative chaos.

On the other hand learned counsel Mr. Vigyan Shah

appearing for the original-petitioners opposed these appeals

raising following contentions:-

(1) The selection and posting in the Scheduled Area

presents certain obvious advantages. The petitioners

who were found to be more meritorious candidates

cannot be deprived of such benefits under the guise that

they were adjusted against Non-Scheduled Area

vacancies. The decision of the Supreme Court in the

case of R.K. Sabharwal and Ors. Vs. State of Punjab

and Ors., (1995) 2 SCC 745 could not be applied in

such a scenario. In this context he relied on the decision

in the case of Union of India Vs. Ramesh Ram and

Ors. (2010) 7 SCC 234. He also relied on a Division

Bench judgment of this Court in the case of State of

Rajasthan Vs. Poonam Sharma (DBSAW

No.815/2019) decided on 29.08.2019.

(2) All the petitioners clearly indicated their reference for

being accommodated within the Scheduled Area. If at all

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less meritorious candidates should have been sent out

but not the petitioners.

(3) The outcome of this decision did not result into adverse

consequences against any of the selected candidates

learned Single Judge has not provided for terminating

services of anyone.

Having heard learned counsel for the respective parties

and having perused the documents on record we find that the

said Rules envisage a separate and what is referred to a closed

cadre for specified class of employees of the State Government

within the Scheduled Area. The recruitment and promotions are

separately governed within such cadres. Existing employees of

the State Government belonging to these areas were given one

time option. Option once exercised would prevent them from

claiming posting or even deputation outside the Scheduled

Area. To the new recruits as per Rule 31 the transfer liabilities

would be within the Scheduled Area. This would mean that

they would not be posted even on deputation outside the

Scheduled Area. For promotion also they would be competing

with the candidates in the feeder cadre within the Scheduled

Area. We have also noticed that the reservation is applied

separately within this closed cadre. The advertisement which

the State Government issued also specified vacancies

separately for Scheduled Area and Non-Schedule Area. The

application form which a candidate had to fill up also required a

declaration that he/she belongs to a scheduled category or not.

In such background the question is, could the petitioners

be adjusted against the vacancies of Non-Scheduled Area only

on the ground that they were found to be more meritorious

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and they should therefore be adjusted against such vacancies.

In case of R.K. Sabharwal (supra) a Constitution Bench of

the Supreme Court had held that number of reserved category

candidates appointed or promoted in non-reserved post as a

result of competition cannot be taken into account to work out

against the prescribed percentage of reservation. The reserved

points indicated in the roster have still to be filled exclusively

from reserved category candidates. This judgment thus laid

down the principle that a candidate though may belong to a

reserved category, if he is found meritorious so as to merit

selection without the aid of reservation, such appointment

would not go to reduce the number of reserved vacancies and

such vacancies will be filled up through reserved category

candidates. In our opinion this principle cannot be applied in

the present scenario. Firstly the two streams of selection

namely the vacancies notified for Scheduled Area and those for

Non-Scheduled Area were separate and distinct. Secondly and

more importantly even if the State administration thought that

these petitioners were meritorious and could merit selection

without the protective shield of Scheduled Area limited

competition, the choice whether to be adjusted against

scheduled vacancies or non-scheduled vacancies could not

have been thrust upon them. As persons belonging to

Scheduled Area and as candidates who were found meritorious

warranting selection and appointment, the State administration

had to respect their choice of being accommodated against

Scheduled Area vacancies. Appointment in the Scheduled Area

carries certain obvious advantages such as limited transfer

liability and competition for promotion within the closed cadre.

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The meritorious selected candidates of Scheduled Area cannot

be deprived of such advantages in the guise that they merit

appointment in Non-Scheduled Area. We have noticed that

even existing employees of the State Government were given

option to be absorbed in Scheduled Area cadres.

Learned counsel for the original-petitioners was justified

in relying on the decision in the case of Ramesh Ram

(supra). This was a Constitution Bench judgment in which the

reserved category candidates who were found more

meritorious, were left at a disadvantageous position in

selection of All India Services. In this background after

referring to the decision in the case of R.K. Sabharwal

(supra) it was observed that this principle would not imply

that if a candidate himself wishes to avail a vacancy in

reserved category he shall be prohibited from doing so.

As rightly pointed out by the counsel for the original-

petitioner a Division Bench of this Court in the case of Poonam

Sharma (supra) had occasion to deal with somewhat similar

situation. It was a case in which meritorious reserved category

candidates were treated as general category candidates and

this resulted into denial of the benefit of reserved seat in

concerned subject while the question of allocation of the

division of choice arose. The Division Bench referring to and

relying upon the decision in case of Ramesh Ram (supra)

held and observed as under:-

"13. The issue of giving weightage and- as far as possible- giving effect to the preference of a candidate who secures a high ranking in the merit list, while allocating a cadre (much in the same manner as the allocation of the preferred division, as in this case), was a subject matter of a Constitution Bench ruling of the Supreme Court in Union of India

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Vs. Ramesh Ram & Ors., (2010) 7 SCC 234. In that decision, the Court resolved the conflict between different judgments. The question was whether a merited reserved category candidate (MRC), pushed up into the general category merit list and treated as an open merit candidate, can be placed at a disadvantageous position vis-a-vis a reserved category candidate in regard to allocation of cadre, especially when the less merited candidate is granted the cadre of his/her choice. The Supreme Court observed as follows:-

"32. There is an obvious distinction between qualifying through an entrance test for securing admission in a medical college and qualifying in the UPSC examinations since the latter examination is conducted for filling up vacancies in the various civil services. In the former case, all the successful candidates receive the same benefit of securing ad- mission in an educational institution. However, in the latter case there are variations in the benefits that accrue to successful candidates because they are also competing amongst themselves to secure the service of their choice. For example, most candidates opt for at least one of the first three services [i.e. Indian Administrative Service (IAS), Indian Foreign Service (IFS) and Indian Police Service (IPS)] when they are asked for preferences. A majority of the candidates prefer IAS as the first option. In this respect, a Re- served Category candidate who has qualified as part of the general list should not be disadvantaged by being assigned to a lower service against the vacancies in the General Category especially because if he had availed the benefit of his Reserved Category status, he would have got a service of a higher preference. With the obvious intention of preventing such an anomaly, Rule 16 (2) provides that an MRC candidate is at liberty to choose between the general quota or the respective Reserved Category quota.

***********

36. We must also take note of the fact that when MRC candidates get adjusted against the Reserved Category, the same creates corresponding vacancies in the General Merit List (since MRC candidates are on both lists). These vacancies are of course

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filled up by general candidates. Likewise, when MRC candidates are subsequently adjusted against the General Category [i.e.

without availing the benefit of Rule 16 (2)], the same will result in vacancies in the Re- served Category which must in turn be filled up by Wait Listed Reserved Candidates.

Moreover, the operation of Rule 16 does not result in the ouster of any of the candidates recommended in the first list. Many of the wait-listed candi- dates are accommodated in the second stage, and the relatively lower ranked wait-listed candidates are excluded. It is pertinent to note that these excluded candidates never had any absolute right to recruitment or even any expectation that they would be recruited. Their chances depend on how MRC candidates are adjusted.

37. In the impugned judgment, the High Court had reasoned that allocation to a particular post cannot be distinguished from allocation to a service for the purpose of reservation. However, the High Court had not considered the fact that in the CSE examination, the candidates are not competing for similar posts in one service but are instead competing for posts in different services that correspond to varying preferences.

38. Furthermore, the impugned judgment did not appreciate the possibility that when an SC/ST/OBC candidate qualifies on merit (i.e. without any relaxation/concession) there can be a situation where a lower ranked OBC candidate gets allotted to a better service in comparison to a higher ranked SC/ST/OBC candidate sim- ply because the higher ranked OBC candidate performed well enough to qualify in the General Category. Such a situation is anomalous. As we have already discussed, the High Court's reliance on the decision of this Court in Union of India v Satya Prakash (supra.), is not tenable since it dealt with the effect of Rule 16 (2) as it existed prior to the amendment notified on 4.12.2004.

***********

72. We sum up our answers-:

(i) MRC candidates who avail the benefit of Rule 16 (2) and adjusted in the reserved category should be counted as part of the

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reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the General Pool will be offered to General category candidates.

(ii).....

(iii)....

(iv) The reserved category candidates "belonging to OBC, SC/ ST categories" who are selected on merit and placed in the list of General/Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of the Constitution."

14. In the light of the ruling in Ramesh Ram (supra), it is no longer open to the State to contend that allocation of cadre or division, according to the preference sought from candidates, at the initial stage of the recruitment process, is a pure administrative matter. What is in issue is the fairness of the process of allocation."

So far as the broad principles adopted by the learned

Single Judge are concerned we are therefore in agreement with

the same. However before closing two issues need to be dealt

with. First is that with respect to non-joinder of candidates

likely to be affected by outcome of the petitions. In this context

counsel for the appellants had relied on the decisions of the

Supreme Court in the cases Nair Service Society Vs. T.

Beermasthan and Ors., (2009) 5 SCC 545 and Prabodh

Verma and Others Vs. State of Uttar Pradesh and Others

AIR 1985 SC 167. However, are not inclined to disturb the

decision of the learned Single Judge on this ground. Our

reasons are as follows:-

(1) Though strenuously argued before us by Mr. Vigyan Shah

counsel for the original-petitioner there is no getting away from

the fact that the outcome of this petition may as a

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consequence eject some of the Scheduled Area candidates

outside the Non-Scheduled Area. If the original-petitioners

argue that being absorbed in the Scheduled Area vacancies

presents certain obvious advantages, this would necessarily

mean that these candidates would be placed at somewhat

disadvantageous positions. However this ground of non-joinder

is raised by the Government orally before us for the first time

without either raising in writ petition or apparently orally before

the learned Single Judge or without pleading in the appeals

before us. Further, the original-petitioners would not be in a

position to identify those Scheduled Area candidates who would

have to be sent out if the petitions were to be allowed. This

would depend on the relative merit of the candidates in the

said group. More importantly this litigation is going on since

quite some time and is in public domain. The petitions were

filed in the year 2017 and decided towards the end of the year

2019. These appeals are also pending before the Division

Bench since nearly two years by now. At no stage these rival

candidates have made any attempt to join themselves in the

litigation. Not only before the learned Single Judge but even

after the learned Single Judge allowed the petitions, none of

these candidates have made any attempt to intervene. If they

were perturbed by the outcome of the decision at the hands of

the learned Single Judge, they should have exercised their own

options. Within the cadre it is impossible to believe that the

decision of the learned Single Judge and the pendency of the

appeals filed by the State authorities is not known to all

concerned. At this belated stage therefore we are not inclined

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to reverse the decision of the learned Single Judge only on this

ground.

There is one area arising out of the impugned judgment

of the learned Single Judge which requires modification. We

have noted that the learned Single Judge has effectively given

following three directions:-

(i) That the petitioners would be absorbed in Scheduled Area

vacancies.

(ii) As a result sufficient number of candidates in the Scheduled

Area would be posted in Non-Scheduled Area.

(iii) Those petitioners who belong to Non-Scheduled Area and

posted in Scheduled Area would be transferred out.

These directions we do not intend to disturb. However the

problem arises when the learned Single Judge has held that

these directions shall be seen as having been issued in rem and

would apply to all similarly situated candidates whether they

had approached the High Court or not. For variety of reasons

this could not and should not have been done. Firstly this will

lead to a major administrative overhaul. Secondly there may

be certain advantages in serving in Non-Scheduled Area such

as greater exposure and better career progression prospects. It

is for the candidate concerned to weigh his or her option and

the option to be absorbed within the Scheduled Area alone in

the present set of facts could not have been thrust upon such

candidates.

For such reasons while disposing all these appeals and

upholding the principles applied by the learned Single Judge, it

is provided that directions would be confined to the petitioners

before the Court alone. This would include the directions in

(20 of 20) [SAW-856/2020]

case of Naveen Kumar Khandal and others though the State

administration has not filed appeals against the judgment. The

State Government may not be objecting to the directions

issued by the learned Single Judge in favour of those

petitioners, nevertheless extending such directions to the non-

petitioners in the present case is not approved.

With these modification and clarification all the appeals

are disposed of. The judgment of the learned Single Judge is

modified to this extent.

                                   (REKHA BORANA),J                                            (AKIL KURESHI),CJ

                                   KAMLESH KUMAR/N.GANDHI/64-65, 66-67









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