Rajasthan High Court - Jodhpur
Pravindra Singh vs Rajasthan High Court, Jodhpur on 28 October, 2021
Bench: Akil Kureshi, Sandeep Mehta
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Civil Writ Petition No. 10274/2021
Khushi Ram Gurjar S/o Sh. Shyoji Lal Gurjar, Aged About 35
Years, Village Nayagaon Post Kakod Tehsil Uniyara, Tonk (Raj.).
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General.
2. Registrar (Exam.), Rajasthan High Court, Jodhpur.
----Respondents
Connected With
(2) D.B. Civil Writ Petition No. 4991/2021
Pradhuman Singh S/o Shri Surendra Singh, Aged About 24
Years, R/o Rathi Kuve Ke Pass, Deshnok, Bikaner, District
Bikaner, Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General, Rajasthan High Court, Jodhpur, Rajasthan.
2. The Registrar (Examination), Rajasthan High Court,
Jodhpur, Rajasthan.
----Respondents
Connected With
(3) D.B. Civil Writ Petition No. 5087/2021
Mukesh Kumar Choudhary S/o Bhanwar Lal Choudhary, Aged
About 27 Years, Vpo Chosla, Tehsil Nawa, District Nagaur,
Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Through The Registrar General.
2. Registrar (Exams), Rajasthan High Court Jodhpur.
----Respondents
Connected With
(4) D.B. Civil Writ Petition No. 5326/2021
Shrawan Singh S/o Pukhraj, Aged About 31 Years, R/o Guda
Vishnoiyan, District Jodhpur.
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General, Rajasthan High Court, Jodhpur, Rajasthan.
2. The Registrar (Examination) , Rajasthan High Court,
Jodhpur, Rajasthan.
----Respondents
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Connected With
(5) D.B. Civil Writ Petition No. 5393/2021
1. Kishan Lal S/o Shri Rama Ram, Aged About 26 Years,
R/o Meghwalon Ka Vas, Vpo - Chamunderi, Ranawatan,
Bali, District Pali (Raj.)
2. Chain Singh S/o Shri Tanwar Singh, Aged About 28
Years, R/o Village - Kanwal, Post - Ambapa, Tehsil
Didwana, District Nagaur (Rajasthan).
3. Mahendra Singh S/o Birbal Singh, Aged About 31
Years, R/o 38-Joshi Colony, Rajamal Ka Talab, Jaipur
(Rajasthan)
4. Sandeep Choudhary S/o Shri Maga Ram, Aged About
28 Years, R/o Thoriyo Ki Dhani, Raimal Wara, Tehsil
Osian, District Jodhpur (Raj.)
----Petitioners
Versus
1. Rajasthan High Court,jodhpur, Through Its Registrar
General.
2. Registrar (Exam), Rajasthan High Court, Jodhpur.
----Respondents
Connected With
(6) D.B. Civil Writ Petition No. 6369/2021
Rakesh Kumar S/o Rajendra Singh, Aged About 42 Years, By
Caste Jat, Resident Of Barwali, Tehsil Nohar District
Hanumangarh.
----Petitioner
Versus
Rajasthan High Court, Jodhpur Through Registrar
(Examination).
----Respondent
Connected With
(7) D.B. Civil Writ Petition No. 6644/2021
Ajit Singh S/o Ugam Singh, Aged About 33 Years, Vpo Bnkli,
Pali, District Pali (Raj).
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General.
2. Registrar (Exam), Rajasthan High Court, Jodhpur.
----Respondents
Connected With
(8) D.B. Civil Writ Petition No. 7151/2021
Rakesh Kumar S/o Shri Mahender Swami, Aged About 25
Years, R/o Ward No. 12 , 19 Ssw, Kishanpura Dikhnada,
Village Hanumangarh Town, Tehsil And District Hanumangarh,
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Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General, Rajasthan High Court, Jodhpur , Rajasthan.
2. The Registrar (Examination), Rajasthan High Court,
Jodhpur, Rajasthan.
----Respondents
Connected With
(9) D.B. Civil Writ Petition No. 7155/2021
Ram Ji Lal Verma S/o Shri Hanuman Prasad, Aged About 38
Years, R/o Ward No. 8, Vpo Pakka Sarna, Village Pakka
Sarna, Tehsil And District Hanumangarh, Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General, Rajasthan High Court, Jodhpur, Rajasthan.
2. The Registrar (Examination), Rajasthan High Court,
Jodhpur, Rajasthan
----Respondents
Connected With
(10) D.B. Civil Writ Petition No. 7197/2021
Pravindra Singh S/o Rampat, Aged About 35 Years, R/o
Village Thothi, Post - Gadli, District Jhunjhunu (Rajasthan)
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General.
2. Registrar (Exam), Rajasthan High Court, Jodhpur.
----Respondents
Connected With
(11) D.B. Civil Writ Petition No. 7749/2021
Damodar Singh S/o Sh. Hari Singh, Aged About 41 Years, R/o
2/1427, Kudi Bhagtasni Housing Board, Jodhpur (Raj.).
----Petitioner
Versus
1. Rajasthan High Court Jodhpur, Through Its Registrar
General.
2. Registrar (Exam), Rajasthan High Court, Jodhpur.
----Respondents
Connected With
(12) D.B. Civil Writ Petition No. 7807/2021
Jaidev Vishnoi S/o Sh. Bhanwar Lal, Aged About 29 Years,
Plot No. 18, Vidhya Nagar, Opposite Kali Tanki, Behind Rto,
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Jodhpur (Raj.).
----Petitioner
Versus
1. The High Court Of Judicature, For Rajasthan At
Jodhpur Through Its Registrar.
2. The Registrar (Examination), Rajasthan High Court,
Jodhpur.
----Respondents
Connected With
(13) D.B. Civil Writ Petition No. 7861/2021
Azad Khan Pathan S/o Hafiz Khan Pathan, Aged About 39
Years, Near Gopaldwara, Talab Road, Mandal, District
Bhilwara (Rajasthan).
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General, Rajasthan High Court, Jodhpur.
2. The Registrar (Exams), Rajasthan High Court, Jodhpur.
----Respondents
Connected With
(14) D.B. Civil Writ Petition No. 4853/2021
1. Rajendra S/o Shri Ramniwas, Aged about 34 years, R/o
Village Basni Khariya, Post Palri, Tehsil Pipar City, District
Jodhpur, Rajsthan.
2. Prema Ram S/o Shri Bhalla Ram, aged about 39 years,
R/o Saran Nagar, Ajmer Road, Near Vishnu Steel Furniture,
Jodhpur, Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General.
2. Registrar (Exam.), Rajasthan High Court, Jodhpur.
----Respondents
Connected With
(15) D.B. Civil Writ Petition No. 6362/2021
Ravi Prakash S/o Shri Rajendra Prakash, aged about 23 years,
B/c Nai, R/o village and Post Palli Pratham Via Lohawat, District
Jodhpur (Rajasthan)
----Petitioner
Versus
1. Rajasthan High Court, Through Its Registrar General.
2. The Registrar (Examination), Rajasthan High Court
Jodhpur.
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----Respondents
Connected With
(16) D.B. Civil Writ Petition No. 6060/2021
Subhash S/o Shri Jot Ram, aged about 33 years, R/o ward No.4,
Village Pakka Sarna, Tehsil and District Hanumangarh,
Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General, Rajasthan High Court, Jodhpur, Rajasthan.
2. The Registrar (Examination), Rajasthan High Court,
Jodhpur, Rajasthan.
----Respondents
Connected With
(17) D.B. Civil Writ Petition No. 5099/2021
Rajendra Kumar Jangid S/o Shri Bheru Ram, aged about 35
years, R/o VPO Ramsari, Tehsil Degana, District Nagaur,
Rajasthan.
----Petitioner
Versus
1. Rajasthan High Court, Jodhpur, Through Its Registrar
General, Rajasthan High Court, Jodhpur, Rajasthan.
2. The Registrar (Examination), Rajasthan High Court,
Jodhpur, Rajasthan.
----Respondents
For Petitioners : Mr. Jaidev Singh Bhati
Mr. Nikhil Jain
Mr. Ganga Ram
Mr. Vijay Bishnoi
Mr. Mahaveer Bishnoi
Mr. Kailash Jangid
Mr. Mahendra Singh Godara
Mr. M.L. Deora
Mr. Inderjeet Yadav
For Respondents : Dr. Sachin Acharya with
Mr. Manvendra Singh and Chayan
Bothra
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE SANDEEP MEHTA
JUDGMENT
Judgment reserved on : 20th and 21st October, 2021
Judgment pronounced on : 28th October, 2021
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BY THE COURT : (PER HON'BLE MEHTA,J.)
These writ petitions involve common questions of facts and
law and are thus, being decided together by this judgment.
Brief facts relevant and essential for disposal of these writ
petitions are that the Rajasthan High Court issued an
advertisement dated 22nd July, 2020 for direct recruitment on the
posts of Chauffeur in Rajasthan High Court and Driver in
Rajasthan State Judicial Academy, Rajasthan State Legal Services
Authority and District Courts. The advertisement prescribed
following minimum academic, physical and technical qualifications:
i. Candidate must have passed Senior Secondary from Board
of Secondary Education Rajasthan or any other Board
recognized by the Government, and;
ii. Candidate must hold valid license to drive light motor vehicle
and transport vehicle, and;
iii. Candidate must have 3 year's experience (up to the last date
of submission of application i.e. 31.08.2020) in driving the
said vehicles after obtaining a valid driving license for driving
light motor vehicles and transport vehicles, and;
iv. The eyesight of the candidate must be 6/6 with glasses or
without glasses, and;
v. Candidate must have knowledge of road side repair and
proficiency in driving.
The last date for submission of the application forms was 31 st
August, 2020.
The scheme and syllabus of examination as prescribed in
Clause 12 of the advertisement is germane for deciding the
controversy at hand and thus, the translated version thereof is
reproduced hereinbelow for the sake of ready reference:
"The examination of the candidates shall be conducted in the
following stages :-
Stage (1) Screening Test
If, number of applications received are more than 10 times
of the total vacancies, in respect of advertised vacancies,
an objective type written test may be conducted to shortlist
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the candidates. The Objective type written test will be
conducted only for short listing the candidates and the
marks obtained in the said examination will not be
considered while preparing the final merit list.
(i) The Written Test will be of total 100 marks, duration
thereof will be 2 hours consisting of multiple choice
questions from the following subjects :-
(a) Traffic instructions written in Hindi and English
language, sign boards related to traffic and the
knowledge regarding reading of road instructions.
(b) Related to technical knowledge of vehicle and
roadside repair.
(c) Related to knowledge of traffic rules.
(d) Related to knowledge of traffic signs.
(ii) Out of the above subjects, there would be questions
of 20 marks from first subject, 20 marks from second
subject, 30 marks from third subject and 30 marks
from fourth subject.
(iii) There will be a total of 100 questions (each of 1
mark) in the Written Test.
(iv) There will be no negative marking for wrong answer.
(v) The Written Test shall be conducted through OMR
Answer Sheet.
(vi) Candidates up to the extent of 10 times (category-
wise) of the total number of vacancies shall be
declared qualified for the Job Test and Personal
Interview on the basis of marks obtained in the
Written Test. Such candidates, who obtain equal
marks on the last cut-off (category-wise), shall also
be declared qualified for the Job Test and Personal
Interview.
(vii) In order to qualify for the JOB Test and Personal
Interview, the candidates of SC/ST category shall
have to obtain 40 marks in the Written Test and
candidates of all other category shall have to obtain
45 marks.
(viii) Model answer key to the question paper of Written
Test shall be published on the official website i.e.
http://www.hcraj.nic.in of this Court forthwith after
holding of the Written Test. The objections from
candidates against the model answer key shall be
sent within such time limit and such manner
prescribed by Rajasthan High Court. Any objection
received after the stipulated time period shall not be
considered. The objections received accordingly, shall
be considered by a competent Committee and if
needed, after modifying the answer key, the Final
Answer Key may be published and along with this, the
result of the Written Test may also be declared."
[Emphasis supplied]
The written examination was held on 23.1.2021 and the
model answer-key thereof was uploaded on the web-portal of
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Rajasthan High Court on 24.1.2021. After making an assessment
of the objective type OMR sheets of all the candidates, who
appeared in the written examination, the respondents declared the
category-wise cut off marks as below:
Category Cut-Off
Marks
For the sake of convenience, the category-wise bifurcation of
73 posts and the number of candidates declared qualified for job
test and personal interview is as below:
Sr. Category No.of Cut Off No.of Candidates declared
No. Posts qualified for job test and
interview
The petitioners who belong to the OBC-NCL (non creamy
layer)/EWS categories, have raised a grievance that since the cut
off marks for their respective category are much higher than the
cut off declared for the General Category, they have been deprived
from the benefit of reservation to which they are entitled as per
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the recruitment rules, terms and conditions of the advertisement
and various judgments rendered by the Hon'ble Supreme Court.
The respondents in their reply have asserted that a large
number of applications were received and thus, the screening test
exercise was undertaken to shortlist the number of applications
because it would neither be feasible nor viable to invite all the
applicants for the job test and personal interview. The benefit of
reservation would unquestionably be available to all the
candidates, who have been declared qualified for the job test and
personal interview after clearing the screening test. The
apprehension of the petitioners that there has been a denial of
reservation is refuted on the ground that candidates 10 times the
number of the available posts in each category, have been invited
for the job test and personal interview and thus, there is ample
opportunity for the candidates so invited to avail the benefit of
reservation when the final assessment is made after job test and
personal interview.
Learned counsel for the petitioners contend that the
procedure adopted by the respondents in ignoring the writ
petitioners applicants, who belong to the reserved category i.e.
OBC(NCL)/EWS, despite securing higher marks than the cut off
declared for the General Category, and not inviting them for job
test and personal interview flouts the settled norms of reservation
policy. In support of their contentions, learned counsel for the
petitioners have placed reliance on the Supreme Court Judgment
in the case of "State of Punjab Vs. Manjit Singh" reported in
AIR 2003 SC 4580. Reliance was also placed on a Single Bench
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Judgment of this Court in the case of "Bhawani Singh Kaviya
and Ors. Vs. State of Rajasthan and Anr." reported in 2008(4)
RLW (Raj.) 3818. It was also contended that an identical
controversy came up before Division Bench of this Court in a
bunch of appeals led by D.B.Civil Special Appeal (Writ)
No.635/2016 "State of Raj. and Anr. Vs. Hanuman Jat and
Ors." which was decided by order dated 13.5.2016 affirming the
decision of the recruiting authority to shortlist the candidates
(Patwaries) without applying reservation. The said order of this
Court was challenged in appeal before the Hon'ble Supreme Court
in Civil Appeal No.6084-6093/2016, wherein it has been directed
that all such candidates, who are entitled to reservation and
secured more than the cut off declared for the General Category
would be entitled to be considered for further steps for selection.
On these grounds, learned counsel for the petitioners craved
indulgence of this Court to accept the writ petitions and direct
inclusion of the petitioners in the next step of selection i.e. job
test and personal interview.
Per contra, learned counsel for the respondents have placed
reliance on the following judgments in support of their
contentions, supporting the impugned action of the recruiting
authority:
• Chattar Singh and Ors. Vs. State of Rajasthan and
others reported in AIR 1997 SC 303
• Rajasthan Public Service Commission and others Vs.
Megha Sharma and others reported in 2020(3) RLW
(Raj.) 2203
• Dharamveer Tholia and others Vs. State of Rajasthan
and others reported in 2000(3) WLC 399
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Learned counsel for the respondents vehemently and
fervently contended that the exercise of shortlisting has been
undertaken as per the selection rules and that there was a specific
condition in the recruitment notification that the authority would
be entitled to screen the candidates category-wise. It was urged
that despite the screening test resulting into a situation where the
cut off for the reserved categories be it OBC-NCL, EWS or SC, has
been fixed higher than the cut off for the General Category, the
possibility of the candidates declared qualified for job test and
personal interview in these categories securing selection against
the General Category seats by virtue of vertical reservation cannot
be ruled out because as many as 137 candidates of the OBC-NCL
category (10 seats), 31 candidates of EWS (03 seats), 98
candidates of SC category (09 seats) and 69 candidates of ST
category (06 seats) and 10 candidates of MBC-NCL (01 seats)
have been declared qualified for further steps of selection. It was
further contended by the counsel for the respondents that the
petitioners herein applied for the selection process fully conscious
of the condition No.12.6 of the advertisement (supra) wherein it
was clearly stipulated that candidates upto 10 times (category-
wise) shall be declared qualified for the job test and personal
interview on the basis of the marks obtained in the written test.
Thus, it was clearly conveyed by the recruiting authority in the
advertisement that the screening test would entail the shortlisting
of candidates on the basis of the cut off for the respective
category and that 10 times the number of candidates who secured
marks equal to the cut off for his/her category would be admitted
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to the next step of selection. The petitioners did not challenge this
condition of the advertisement before participating in the selection
process and thus, at this belated stage, they are estopped from
raising objection against this condition which otherwise also is
compliant to the rules of selection. On these submissions, learned
counsel for the respondents sought dismissal of the writ petitions.
We have given our thoughtful consideration to the arguments
advanced at the bar and have gone through the material available
on record and have carefully perused the judgments cited at the
bar.
Rule 25 of the Rajasthan Subordinate Courts (Driver and
Class IV Employees) Service Rules, 2017 (hereinafter will be
referred to as 'the Rules of 2017') which provides for selection to
the post of Driver reads as below:
"25. Selection to the Post of Driver.-(i)
Recruitment to the post of Driver shall be made by
Direct recruitment after holding a job test and
personal interview from amongst the eligible
candidates.
Provided, that the Recruiting Authority,
may, if deemed appropriate, for the purpose of
short listing of the candidates, hold a Screening
Test.
(ii) Merit list for selection to the post of Driver shall
be prepared by the Recruiting Authority on the basis of
marks obtained by the candidate in the Job Test and
interview.
(iii) Scheme and syllabus of the Test conducted under
this Rule, shall be such as may be prescribed by the
Recruiting Authority, from time to time."
[Emphasis supplied]
A bare perusal of aforequoted Rule 25 reveals that the
recruiting authority may undertake a screening test if the number
of applications received is excessively high. There also was a clear
indication in Clause 12 of the recruitment notification dated
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22.7.2020 that a screening test would be held in case, the number
of applications received was 10 times the number of vacancies
advertised. The screening examination would be by way of
multiple choice question paper and the marks received therein,
would not be counted for preparation of the final merit list. Clause
12(1)(vi) of the advertisement (reproduced supra) specifically
provided that on the basis of the marks secured in the written
test, upto the limit of 10 times, candidates would be invited for
the job test and personal interview and that the cut off would be
declared category-wise. Precisely, in compliance of Rule 15 of the
Rules of 1999 and the Clause 12(1)(vi) of the recruitment
notification, the respondents declared the cut off marks for various
categories i.e. General, General (Women), Scheduled Caste,
Scheduled Caste (Women), Scheduled Tribe, Other Backward
Class-NCL, Other Backward Class-NCL (Women), More Backward
Class-NCL and Economically Weaker Sections and in furtherance
thereof, 10 times the number of candidates have been invited
from each category as per the cut off so declared.
The issue regarding preparation of the result of the screening
test by adopting the category-wise cut-off method is also
prescribed in Rule 15 of the Rajasthan State and Subordinate
Service (Direct Recruitment by Combined Competitive
Examination) Rules, 1999, validity whereof was examined by a
Division Bench of this Court in the case of Dharamveer Tholia
and others Vs. State of Rajasthan and others reported in
2000(3) WLC 399. Rule 15 of the Rules of 1999 is analogous to
Rule 25 of the Rules of 2017 and the ratio of the said judgment
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would thus be squarely applicable to the controversy at hand. The
Division Bench turned down the challenge laid by the petitioners
therein in almost identical situation. Reliance was placed by the
Bench on the Supreme Court Judgment in the case of Chattar
Singh and others Vs. State of Rajasthan and others reported
in AIR 1997 SC 303 wherein the effect of Rule 13 of the
Rajasthan State and Subordinate Services (Direct Recruitment by
Combined Competitive Examinations) Rules, 1962 was examined
and the Hon'ble Supreme Court went on to hold as below:
"18. The State had evolved the principle of reservation to
an office of the State or post as an affirmative action to
accord socio-economic justice guaranteed in the
Preamble of the Constitution; the fundamental rights and
the directive principles which are the trinity of the
Constitution to remove social education and economic
backwardness as a constitutional policy to accord equality
of opportunity, social status or dignity of person as is
enjoined in Articles 14, 15, 16, 21, 38, 39, 39A, 46 etc.
Article 335 enjoins the State to take the claims of Dalits
and Tribes into consideration for appointment to an
office/post in the services of the State consistently with
efficiency of administration. Though OBCs are socially and
educationally not forward, they do not suffer the same
social handicaps inflicted upon Scheduled Castes and
Scheduled Tribes. Articles 15(2) and 17 furnish historical
and social dissatisfaction inflicted on them. The object of
reservation for the Scheduled Castes and Scheduled
Tribes is to bring them into the mainstream of national
life, while the objective in respect of the backward
classes is to remove their social and educational
handicaps. Therefore, they are always treated dissimilar
and they do not form an integrated class with Dalits and
Tribes for the purpose of Article 16(4) or 15(4).
Obviously, therefore, proviso to Rule 13 confines the 5%
further cut off marks in the preliminary examination from
the lowest range fixed for general candidates. So, it is
confined only to the Scheduled Castes and Scheduled
Tribes who could not secure total aggregate marks on par
with the general candidates. The Rule expressly confines
the benefit of the proviso to Scheduled Castes and
Scheduled Tribes. By process of interpretation, OBCs.
cannot be declared alike the Scheduled Castes and
Scheduled Tribes. Therefore, the contention that the
doctrine of fusing "any backward class of citizen" in
Article 16(4), further classification of Scheduled Castes
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and Scheduled Tribes and OBCs. as distinct classes for
the purpose of reservation and omission to extend the
same benefits to OBCs violates Article 14 is devoid of
substance. If the logic of equality, as propounded by
minority Judge is given acceptance, logically they are also
entitled to reservation of seats in the House, of the
People or in the Legislative Assemblies of States, though
confined to Scheduled Tribes and Scheduled Castes, by
operation of Article 334(a) of the Constitution with a non
obstante clause engrafted therein. The founding fathers
of the Constitution, having been alive to the
dissimilarities of the socio-economic and educational
conditions of the Scheduled Castes and Scheduled Tribes
and other segments of the society have given them
separate treatment in the Constitution. The Constitution
has not expressly provided such benefits to the OBCs
except by way of specific orders and public notifications
by the appropriate Government. It would, therefore, be
illogical and unrealistic to think that omission to provide
same benefits to OBCs, as was provided to Scheduled
Castes and Scheduled Tribes, was void under Article
16(1) and 14 of the Constitution.
19. Accordingly we are of the view that the OBCs. are not
entitled to 5% cut off marks in the preliminary
examination as provided under proviso to Rule 13.
20. As regards the preparation of separate list of General,
OBCs, SCs STs and physically handicapped, in view of the
fact that the latest amendment has been made explicit
what was implicit in Rule 13, we are of the view that
separate lists are required to be published by the Service
Commission in respect of the candidates in the respective
categories so as to make up number of candidates 15
times the notified or anticipated posts/vacancies so as to
enable them to appear in the main examination. It is true
that the amendment is prospective in operation.
However, it does not detract from the efficiency of Rule
13 originally made. In view of the above, the Public
Service Commission is directed to call all those
candidates that constitute 15 times the posts/vacancies
notified or anticipated in terms of the above declaration
of law so as to enable them to appear in the main
examination."
Similar controversy was examined by another Division Bench
of this Court in the case of Rajasthan Public Service
Commission and others Vs. Megha Sharma and others
reported in 2020(3) RLW (Raj.) 2203 wherein, it was
categorically held that migration is not to be applied while short-
listing the candidates for interview/main exam after subjecting
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them to screening test and it has to be applied at the time of final
selection i.e. preparing the final merit list only. The observations
made by the Division Bench at para 12 of the said judgment are
relevant to the controversy at hand and are thus reproduced
hereinbelow for the sake of ready reference:-
"12. The upshot of the aforesaid judgments of the Hon'ble
Apex Court and division benches of this Court is that
migration is not to be applied while shortlisting the
candidates for interview/main exam after subjecting them
to screening test and it has to be applied at the time of
final selection i.e. preparing the final merit list only. Since,
there was no category wise interview, the judgment dated
8.5.2019 qua its findings recorded in paragraph 2 at
internal page 8, suffers from the error apparent on its
face. Therefore, the review petitions are allowed, the
judgment dated 8.5.2019 is recalled and set aside to the
extent directions contained therein requiring the RPSC to
subject all the candidates declared successful in the
screening process together for interview, prepare a
combined merit list and thereafter work out the revise
merit list giving due weightage to the rule of migration.
Resultantly, the special appeals are allowed in terms that
the select list dated 18.5.2019 is held to be valid."
Likewise, in D.B. Special Appeal (Writ) No.1448/2016
"Garima Sharma Vs. State of Rajasthan and others" decided
on 8.5.2018, the Division Bench of this Court while relying on the
judgment in the case of Dharamveer Tholia (supra) held as below:
"We appreciate the aforesaid issue. The answer of
the question was given by this Court in the case of
Dharmveer Tholia (supra). The principal of vertical
reservation for migration of meritorious reserve caste
candidates to open category would not be applicable for
short-listing. The list should only of general caste
candidates. In fact, framers of the Constitution never
visualized that reservation would be arranged vertically
or horizontally. The theory aforesaid has been developed
by the Court while adjudicating the issue. So far as the
present matter is concerned, the judgment of the Apex
Court in the case of Anil Kumar Gupta Vs. State of UP, (1995) 5
SCC 173 also supports the case. If vertical reservation is
applied at the stage of short-listing also then virtually it
would amount to grant of reservation at every stage of
selection, though, is meant to apply at the final stage of
recruitment and while giving appointment.
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A reference of the judgment of Division Bench of
this Court in bunch of special appeals led by State of
Rajasthan & Anr. Vs. Hanuman Jat & Ors., D.B. Civil Special Appeal
(W) No.635/2016 decided vide order dated 13th May, 2016
would also be relevant. The controversy therein was not
only in pursuance of the Rules of 1999 but on the same
issue. Therein, the RPSC had arranged the list for
admitting the candidates for Main Examination strictly
fifteen times to each category. Therein, migration of the
candidates from one category to another was not made.
The aforesaid was challenged by reserve caste
candidates alleging that on account of denial of
migration of candidates from reserve caste category to
open category, their rights have been affected. The plea
taken therein was not accepted. Relevant paras of the
judgment in the case of Hanuman Jat & Ors. (supra) are
also quoted hereunder for ready reference and otherwise
it supports the case of the petitioner-appellants :
"The preliminary examination was held on
13.2.2016, in which 6,45,071 candidates appeared and
result was declared on 17.3.2015 and a list of candidates
15 times the number of vacancies category-wise to be
admitted to the main examination scheduled to be held
on 7.5.2016 was prepared and published. The list of
candidates 15 times the number of vacancies category-
wise to be admitted to the main examination prepared
by the Board is not the subject matter of challenge in
the batch of writ petitions. However, since the cut-off
marks fixed in the preliminary examination for short
listing the candidates for general category being lower in
comparison to the cut off marks for SC/ST/OBC
categories, a complaint has been lodged by the members
of the reserved categories SC/ST/OBC and their
grievance is that since the last candidate in general
category secured lower marks, atleast those candidates
of SC/ST/OBC categories, who have secured higher
marks or 104.51 marks (i.e. cut off marks fixed in the
general category) should be made entitled to be
admitted to the main examination, even if they exceed
15 times the number of vacancies in their own reserved
categories and denial from participation and admission
to the main examination will be violative of Article 16(4)
of the Constitution.
It may be relevant to note that against the
advertised vacancies, if multiplied by 15 times, the
candidates to be admitted to the Main Examination
approximately come to 67,000 candidates for which
arranges are to be made but what is being contended by
the petitioners is accepted even on hypothetical figures,
it may be more than One Lac Fifty Thousand of
candidates to be admitted to the Main Examination and
that may be 30 times of the number of vacancies
although the requirement is 15 times of the vacancies
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category-wise frustrates the purpose of shortlisting the
candidates for being admitted to the Main Examination.
The same very question arose for consideration
before the coordinate Division Bench of this Court in the
case of Dharamveer Tholia (supra), in which the question
of interpretation was of Rule 15 of the Rajasthan State
and Subordinate Services (Direct Recruitment by
Combined Competitive Examinations) Rules, 1999, which
envisages the scheme of examination providing that the
competitive examination shall be conducted in two
stages i.e. Preliminary Examination and Main
Examination followed by interview and the number of
candidates to be admitted to the main examination will
be 15 times the total approximate number of vacancies
(categorywise). Rule 15 of the Rules of 1999 is quoted
below:-
"15. Scheme of Examination, Personality and Viva-
voce Test: The Competitive Examination shall be
conducted by the Commission in two stage i.e.
Preliminary Examination and Main Examination as per
the scheme specified in Schedule-III. The marks
obtained in the Preliminary Examination by the
candidates, are declared qualified for admission to the
Main Examination will not be counted for determining
their final order of merit. The number of candidates to be
admitted to the Main Examination will be 15 times the
total approximate number of vacancies (category wise)
to be filled in the year in the various services and posts
but in the said range all those candidates who secure the
same percentage of marks as may be fixed by the
Commission for any lower range will be admitted to the
Main Examination. Candidates who obtain such minimum
qualifying marks in the Main Examination as may be
fixed by the Commission in their discretion shall be
summoned by them for an interview. The Commission
shall award marks to each candidate interviewed by
them, having regard to their character, personality,
address, physique and knowledge of Rajasthani Culture.
However, for selection to the Rajasthan Police Service
candidates having "C" Certificate of N.C.C. will be given
preference. The marks so awarded shall be added to the
marks obtained in the Main Examination by each such
candidate. Provided that the commission, on intimation
being received from the Government before declaration
of the result of the Preliminary Examination, may
increase or decrease the number of vacancies
advertised."
There were facts and circumstances where the cut
off marks for the candidates of OBC category was higher
than the general category and question was that if cut
off marks for general category is lower than the category
of OBC, such OBC candidates, who have secured marks
upto the cut off marks fixed for general category, are
entitled to be admitted to the main examination and the
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Division Bench examined this question and framed the
following 7 questions of law in the batch of writ
petitions:-
"(i) Whether it is permissible for the R.P.S.C. to
draw a list in terms of Rule 15 by excluding reserved
category from general category notwithstanding the fact
that reserve category persons on their merit standing
find placement in general category?
(ii) Whether it is permissible for the R.P.S.C. to
have a higher cut off standard for the OBC as compare
to the general category?
(iii) Whether it is constitutionally permissible for
the R.P.S.C. to operate Rule 15 in a manner that
disadvantaged sections, reserved category (OBC) is
made to suffer handicaps on account of reservation as
compare to general category?
(iv) Whether Rule 15 as interpreted by R.P.S.C. is
unconstitutional has offended Articles 14, 15(4) and
16(4) of the Constitution of India?
(v) Whether Rule 15 as interpreted by R.P.S.C. is
contrary to law Laid down by apex court?
(vi) Whether general category can be codified as
non-reserved category and excluded in all situations
meritorious reserved category candidates and can find
place in general category on their own merit standing?
(vii) Whether the massive affirmative action in
favour of general category (non-reserved category) is
permissible under Articles 15 and 16 of the Constitution
of India?"
After examining the judgment of the Apex Court in
the case of Chatter Singh (supra), the Division Bench of
this Court in Dharamveer Tholia (supra) finally observed
as follows:
"49. Rule 15 of the Rules of 1999 provides the
procedure to prepare the list of candidates for appearing
in the main examination, therefore, the result of the
preliminary examination cannot be considered to be a
final result. In regard to the submission made by the
Senior Counsel for the petitioner about the reservation
policy provided under Article 16 (4) of the Constitution
as well as the judgments cited are not in dispute but the
same in our view, will not be of any help or assistance to
the petitioners at this stage of short listing. The
judgment of the Hon'ble Supreme Court relied on by the
petitioner in Sabharwal's case (supra) pertains to the
promotion policy and also of the vacancies based on
roster system which in our opinion, will be applicable
only at the time of preparing the final select list. As per
Rule 15, the RPSC shall permit the candidates 15 times
the total approximate number of vacancies in each
category in the main examination and this Rule has been
upheld by the Supreme Court in Chattar Singh's case
(supra). The reservation policy is meant for recruitment
only and there is no other reservation policy for short
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listing in examination. As such, the actions of the RPSC
are within the mandate of Article 16(4) of the
Constitution of India as well as the Rules of 1999. If the
contention of the learned Counsel for the petitioners is
accepted, the thousands of meritorious candidates who
have been selected as per the preliminary examination
will be affected and their interest will be jeopardized.
50. It is seen from the additional affidavit filed by
the Service Commission that the Commission has
declared the result of the preliminary examination on
27th May, 2000- and the list of successful candidates
coming with the range of 15 times the number of
vacancies set apart for that category was also published
and the list of candidates who were not able to come
within that range was also published. It is useful to
reproduce the details furnished in Paragraphs 3, 4, 5 and
6 of the additional affidavit:
3. That in general category, there are in all 252
vacancies meant for male candidates and 105 vacancies
are meant for female candidates. Thus, combined
vacancies in general category comes to 357 and the
Commission has admitted 5412 candidates for the main
examination in terms of Rule 15 of the Rules.
4. That similarly, the combined vacancies reserved
in OBC category are 140 and the Commission has
admitted 2109 candidates for the main examination,
which constitute 15 times the number of vacancies/posts
reserved in the OBC category.
5. That similarly, there are 102 combined vacancies
reserved in the SC category for male and female both
and the Commission has admitted 1538 candidates for
the main examination, which also constitute 15 times
the number of vacancies reserved in that category.
6. That in ST category, 78 combined vacancies
meant for both male and female have been reserved and
the Commission has admitted 1190 candidates for the
main examination, which constitutes 15 times the
number of vacancies reserved in that category.
51. As held by the Supreme Court, the list of
candidates belonging to one category cannot be shifted
to another category on the basis of their merit as the list
of successful candidates in the preliminary examination
is meant only for short-listing the candidates for the
main examination and it does not constitute merit of the
candidates which is done at the time of preparation of
final merit Under Rule 17 of the Rules. If the contention
of the petitioners is accepted that instead of preparing
separate list for each category, a list should be prepared
on the basis of over-all merit attained by the candidates
appearing in the preliminary examination, it would result
in exclusion of 1498 candidates from the general
category and in their place 1051 candidates from OBC
category will be shifted to the general category; 137
candidates from SC category will also be shifted to the
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general category and similarly, 175 from the ST category
shall have to be shifted to the general category. In
addition to that, in general category, the female
candidates who have secured higher cut-off marks fixed
for the general category (male) shall also be shifted to
the general category (male) in the number of 157. It is
also seen from Para 9 that if the revision is to take place
in accordance with the interpretation put forward by the
petitioners, the cut-off marks in each category shall have
to be revised in the following manner: CUT OFF MARKS
Revised: Male Female 1. General 216 139 2. SCs. 158 90
3. STs. 166 72 4. OBCs 185 132 Existing: 1. General 203
144 2. SCs 163 91 3. STs 174 72 4. OBCs 204 136.
52. We are of the opinion that such an exercise is
not warranted in view of the Supreme Court decision in
Chattar Singh's case (supra)."
The Division Bench of this Court is clear in its view
that the list of candidates 15 times the number of
vacancies category-wise belonging to one category
cannot be shifted to another category on the basis of
their merit as the list of successful candidates in the
preliminary examination is meant only for short-listing
the candidates for the main examination and that does
not constitute the merit of the candidates, which is done
at the time of preparation of final merits of the
candidates.
It cannot be disputed that the purpose of holding
Screening Test is to ensure the basic standard of
eligibility of the candidates and even at the stage of
admission to the main examination, the rule of
reservation of posts cannot be applied. Reservation for
applicants is also not permissible under Article 16(4) of
the Constitution.
"In our considered view, the reservation is applied
at the time of recruitment and not at the time of
preliminary examination for short listing the number of
candidates and it is the duty of the recruiting authority
to ensure fair and competitive examination. There is a
distinction between the holding of preliminary
examination and the main examination. The preliminary
examination is held to short list the candidates and
marks obtained in such examination are not added while
determining the final merit of the candidates and thus,
reservation of applicants is not applied at the stage of
preliminary examination, as settled by the Apex Court in
the case of Chattar Singh (supra) and also by the
coordinate Division Bench of this Court in the case of
Dharamveer Tholia (supra). We are clear in our view that
the rule of reservation is not applied at the time of short
listing the candidates and Article 16(4) for reservation is
not applied in every stage of selection process as being
envisaged in the facts and circumstances of the case and
we are in full agreement with the view expressed by the
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Division Bench of this Court in the case of Dharamveer
Tholia (supra).
The issue is always cropped in as & when the
reserved category qualify with the better marks in
comparison to general category and despite the
members of the reserved category are within 15 times,
the candidates in excess from reserved category, if are
permitted to admit in the Main Examination, the very
purpose of shortlisting the number of candidates shall be
frustrated and interpretation for shortlisting the
candidates remain dependent on the procedure
prescribed or as per the Rules, if so provided but we find
that whenever the cut-off of general category is lower
than the cut-off of reserved category, this question is
always being raised. But, in our considered view, the
legal proposition of shortlisting and publishing the list of
candidates to be admitted to the Main Examination will
remain dependent on the settled proposition of law and
not on the facts of each case as and when came for
scrutiny.
In our view, after the judgment of the Division
Bench of this Court in the case of Dharamveer Tholia
(supra) examining the issuance of list of candidates 15
times the number of vacancies category-wise as per Rule
15, relying upon the decision of the Apex Court in the
case of Chattar Singh (supra) and upholding the list
relating to General, SC, ST, OBC categories to be in
consonance with law and in conformity with the mandate
of the Constitution, the issue is now no more res integra
and open for consideration, unless we differ from the
view expressed by the coordinate Division Bench of this
Court.
Although in one of the judgments of the Single
Bench in Bhawani Singh Kaviya (supra), while examining
the selfsame controversy, the Single Bench of this Court
has distinguished the judgment of the Division Bench in
Dharamveer Tholia (supra) on the premise that the
Division Bench has not examined the question and what
does general category means, but, with due respect, we
may say that the Division Bench in Dharamveer Tholia
(supra) has examined the very question in its judgment
which is reported in RLW 2000(3) Raj.1809 = 2000(3)
WLC 399 and we have also noticed the questions which
were framed and answered by the Division Bench and in
our considered view, the judgment of the Single Bench
of this Court Bhawani Singh Kaviya (supra) in the light of
the DB judgment in Dharamveer Tholia (supra), cannot
be approved by us." The case aforesaid was decided
when cut off marks of the OBC category went higher
than the open/general category. It was questioned as to
how the cut off marks of the open category can be lower
than reserve category and, accordingly, the prayer was
made to allow the candidates of reserve category to
appear in Main Examination by taking cut off marks of
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open category. The Court, after referring the question
framed by the Single Bench, applied the judgment in the
case of Chattar Singh & Ors. Vs. State of Rajasthan & Ors., 1996
(11) SCC 742. The judgment in the case of Chattar Singh &
Ors. (supra) was even relied in the case of Dharmveer
Tholia (supra) and para Nos.49 to 52 of the judgment in
the case of Dharmveer Tholia (supra) have already been
quoted in the preceding paras to answer the question."
Considering the view expounded by Division Benches of this
Court in the above cases while placing reliance on the judgment of
Hon'ble the Supreme Court in the case of Chattar Singh (supra),
it is clear that the concept of vertical reservation and migration to
the higher category cannot be applied in a shortlisting exercise
which is provided under Rule 25 of the Rajasthan Subordinate
Courts (Driver and Class IV Employees) Service Rules, 2017. The
contention of the learned counsel for the petitioner that a similar
view taken by the Division Bench of this Court in a bunch of
appeals led by D.B.Civil Special Appeal (Writ) No.635/2016
"State of Raj. and another. Vs. Hanuman Jat and others"
has been stayed by Hon'ble the Apex Court, is not quite accurate.
The order passed by the Supreme Court shows that the judgment
of the High Court is not stayed, instead following interim formula
was provided:-
"It is submitted that in view of the fact that by
the interim orders, recruitment for the purpose of
filling up the posts of Patwaris is held up, the State is
greatly handicapped in its administration.
For the interim measure, the State as well as the
appellants agree that the ends of justice would be met
for the time being by permitting all the candidates
who secure equal to or more than 104.51 marks in
the preliminary examination (irrespective of the
category to which candidates belong) be permitted to
appear in the final examination without prejudice to
the rights of the parties and the various question of
law arising in the appeals. The respondents are
permitted to complete the process of selection of
Patwaris in accordance with law."
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In addition thereto, we may observe that the recruitment
notification made a specific stipulation in Clause 12(1)(vi) that a
screening test would be held for shortlisting the candidates and
that the list of the candidate declared successful for participating
in the final list of recruitment i.e. job test and personal interview
would be prepared "category-wise". This recruitment condition of
the advertisement was not challenged by any of the petitioners
before applying and participating in the recruitment process. Thus,
they cannot be allowed to do so at this belated stage when the
result of screening test is already been declared. The consequence
of a candidate not challenging a so-called offending clause of the
recruitment notification before participating in the selection
process was considered by Hon'ble the Supreme Court in the case
of Madan Lal and others Vs. State of Jammu and Kashmir
and others reported in AIR 1995 SC 1088 and it was held as
below:
"9. Before dealing with this contention, we must keep in
view the salient fact that the petitioners as well as the
contesting successful candidates being concerned
respondents herein, were all found eligible in the light of
marks obtained in the written test, to be eligible to be
called for oral interview. Upto this stage there is no
dispute between the parties. The petitioners also
appeared at the oral interview candidates by the
concerned Members of the Commission who interviewed
the petitioners as well as the concerned contesting
respondents. Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only
because they did not find themselves to have emerged
successful as a result of their combined performance
both at written test and oral interview, that they have
filed this petition.
It is now well settled that if a candidate takes a
calculated chance and appears at the interview then,
only because the result of the interview is not palatable
to him, he cannot turn round and subsequently contend
that the process of interview was unfair
or Selection Committee was not properly constituted.
(25 of 26)
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In the case of Om Prakash Shukla v. Akhilesh
Kumar Shukla and Ors. MANU/SC/0478/1986 :
[1986]1SCR855 , it has been clearly laid down by a
Bench of three learned Judges of this Court that when
the petitioner appeared at the examination without
protest and when he found that he would not succeed in
examination he filed a petition challenging the said
examination, the High Court should not have granted
any relief to such a petitioner.
10. Therefore, the result of the interview test on
merits cannot be successfully challenged by a candidate
who takes a chance to get selected at the said interview
and who ultimately finds himself to be unsuccessful."
In the case of State of Punjab and others Vs. Manjit
Singh (supra) relied upon by learned counsel for the petitioners,
the Hon'ble Supreme Court held that for the purpose of
shortlisting, it would not at all be necessary to provide cut off
marks. However, on a careful consideration of the said judgment,
it becomes clear that in the said case no rule analogous to Rule 15
of the Rules of 1999 or Rule 25(ii) of the Rajasthan Subordinate
Courts (Driver and Class IV Employees) Service Rules, 2017, was
under consideration and thus, the said judgment is clearly
distinguishable.
Hence, the petitioners are not entitled to challenge the action
of the respondents in preparing the category-wise list of successful
candidates who have been declared qualified for participating in
the final phase of recruitment i.e. job test and personal interview.
In addition, we may observe that from the record of the
respondents, as many as 453 candidates of the General Category
have been summoned for the job test and personal interview
against 44 available seats. None of these candidates have been
impleaded as party respondents by the petitioners in these writ
petitions and thus, in case, the relief sought for is extended to the
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petitioners, the same may result into ouster of many of these
candidates, who were necessary parties but have not been joined
as such in this petition.
As a consequence of the above discussion, we find no
illegality, infirmity or arbitrariness in the impugned action of the
respondent warranting interference therein in the extraordinary
writ jurisdiction conferred upon this Court by virtue of Article 226
of the Constitution of India.
Hence, the writ petitions are rejected as being devoid of
merit.
No order as to costs.
(SANDEEP MEHTA),J. (AKIL KURESHI),C.J.
/tarun goyal/
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