Rajasthan High Court - Jodhpur

Ashok Ram vs The State Of Rajasthan on 30 June, 2022

Bench: Sandeep Mehta, Vinod Kumar Bharwani

                                          (1 of 21)                    [SAW-264/2021]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                   D.B. Spl. Appl. Writ No. 264/2021

1.     Ashok Ram S/o Shri Babulal, Aged About 28 Years, R/o
       Village Feench, Tehsil Luni, District Jodhpur, Rajasthan
       (Raj.).
2.     Hanumana Ram S/o Shri Modu Ram, Aged About 27
       Years, R/o Sodu Choti, Tehsil Bidasar, District Churu
       (Raj.).
3.     Kamal Yadav S/o Shri Shish Ram Yadav, Aged About 32
       Years, R/o F-74, Gandhi Nagar, Jaipur.
4.     Keshav Kumar Sharma S/o Shri Kailash Chandra Sharma,
       Aged About 27 Years, R/o Village And Post Duhar
       Chaughan, Tehsil Thana Gaji, District Alwar.
5.     Lalu Ram S/o Shri Ram Karan, Aged About 34 Years, R/o
       Village And Post Bikamsara, Tehsil Sardarshahar, District
       Churu.
6.     Dharmesh Kachhwal S/o Shri Gidharam Kachhwal, Aged
       About 25 Years, R/o Village Pabusar, District Churu.
                                                                   ----Appellants
                                    Versus
1.     The State Of Rajasthan, Through Its Principal Secretary,
       Department        Of     Personnel,         Government          Secretariat,
       Jaipur, Rajasthan.
2.     The   Principal        Secretary,       Department         Of    Education,
       Government Secretariat, Jaipur, Rajasthan.
3.     The Director, Secondary Education, Bikaner, Rajasthan.
4.     Rajasthan Public Service Commission, Ghooghra Ghati,
       Ajmer (Raj), Through Its Secretary, Ajmer.
                                                                 ----Respondents


For Appellant(s)          :     Mr. R.N. Mathur, Senior Advocate,
                                assisted by Mr. Lokesh Mathur
For Respondent(s)         :     Mr. Sunil Beniwal, AAG
                                Mr. Mahesh Thanvi



          HON'BLE MR. JUSTICE SANDEEP MEHTA
     HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI



                     (Downloaded on 01/07/2022 at 08:41:44 PM)
                                         (2 of 21)                  [SAW-264/2021]

                                   Order

Order pronounced on : 30/06/2022

Order Reserved on : 21/03/2022

BY THE COURT : PER HON'BLE MEHTA, J.

The instant intra court appeal calls into question the

judgment dated 17.02.2021 passed by the learned Single Bench

of this court, whereby S.B. Civil Writ Petition No.680/2021 (Ashok

Ram & Ors. Vs. State of Rajasthan & Ors.) preferred by the

appellants herein was dismissed.

The moot controversy involved in this appeal is whether

the respondents were justified in applying the Most Backward

Category (for short, 'MBC') and Economically Backward Section

(for short, 'EWS') reservation to the ongoing recruitment process

initiated by the Rajasthan Public Service Commission (for short,

'RPSC') vide advertisement dated 13.04.2018 for making selection

to the posts of Lecturer (School Education). At inception, the

advertisement provided reservation only to the candidates of SC,

ST, OBC, SBC and PH categories. The mode of Selection was

through competitive examination and the last date for submitting

the application forms was 16.06.2018. While the recruitment

process was still in progress, an order dated 23.06.2019 came to

be issued by the State Government clarifying that 5% reservation

for MBC and 10% reservation for EWS had been introduced by

Notifications dated 13.02.2019 and 19.02.2019 respectively and

thus, it was considered expedient to apply these reservations to

such recruitment processes, where examinations had not been

held at any stage. It was also stipulated in the same order that

(3 of 21) [SAW-264/2021]

advertised posts shall be re-categorized and the recruiting agency

in question shall issue an amended notification and further

procedure to be adopted was also indicated. As a consequence of

the order dated 23.06.2019, the RPSC issued a corrigendum dated

19.09.2019 providing enhanced reservation for MBC category and

reservation for EWS category by carving out the required number

of posts from the unreserved category. Being aggrieved of the

order dated 23.06.2019 and the corrigendum dated 19.09.2019,

the appellants-petitioners, who are candidates of unreserved

category, filed the Writ Petition No.680/2021 before learned Single

Bench claiming that by advertisement dated 13.04.2018, total

5000 posts of Lecturer (School Education) in 20 subjects had been

advertised, of which 2541 posts were meant for unreserved/open

category candidates. However, on account of the corrigendum

dated 19.09.2019 providing for enhanced reservation, the posts

earmarked for unreserved category had been reduced to 2050 by

reserving 491 posts for MBC and EWS categories.

On behalf of the writ petitioners-appellants, two

submissions were mainly advanced before the learned single

Bench. Firstly that the order dated 23.06.2019 could not have

been applied in the ongoing recruitment process, which had been

initiated on 13.04.2018, i.e. well before issuance of the

Notifications dated 13.02.2019 and 19.02.2019 and secondly that

in any event, the posts earmarked for the unreserved candidates

could not have been reduced.

The learned Single Bench, considered the pleadings of

the parties, the material placed on record and the submissions

(4 of 21) [SAW-264/2021]

advance at bar and held that the issue at hand stood adjudicated

by this court vide judgment dated 06.12.2019 rendered in the

case of Surendra Singh Rathore Vs. State of Rajasthan [S.B.

Civil Writ Petition No.13208/2019] and cognate matters as

affirmed by the learned Division Bench vide judgment dated

20.07.2020 rendered in the case of Bhagvat Singh & Ors. Vs.

State of Rajasthan & Ors. [D.B. Civil Special Appeal (Writ)

No.176/2020]. After appreciating the submissions advanced at

bar, the learned Single Bench, turned down the prayer made by

the petitioners herein and dismissed the writ petition by final

order/judgment dated 17.02.2021, which is assailed in this intra

court appeal.

Mr. R.N. Mathur, learned Senior Advocate, assisted by

Mr. Lokesh Mathur, learned counsel representing the appellants-

petitioners, vehemently and fervently contended that the

impugned judgment is bad in the eyes of law. The notifications

dated 13.02.2019 and 19.02.2019 could not have been given

retrospective effect. These two Notifications make a hostile

discrimination amongst two classes because despite the claim of

the respondents that these two Notifications have retrospective

effect, the same have not been applied to selection processes,

where examinations had already been conducted and only few

selection processes like the present one are impacted by the

aforesaid Notifications. It was the fervent contention of the

learned counsel for the petitioners that even if the two

Notifications referred to supra were to be applied in any pending

or future selection process, then the respondents should have

(5 of 21) [SAW-264/2021]

created additional posts for the EWS and MBC category candidates

and the vacancies/posts earmarked for the General category

candidates could not have been reduced. Reliance was placed

upon the Supreme Court judgment in B.L. Gupta & Anr. Vs.

MCD [(1998) 9 SCC 223] to buttress the contention that the

vacancies which had arisen before the rules were amended would

be governed by unamended rules only. Reliance was also placed

on the Supreme Court judgment in the case of A.A. Calton Vs.

Director of Education & Ors. [AIR 1983 SC 1143] in support

of the contention that the process of selection, which commenced

from the date of calling for applications for the posts upto the date

of making selection is integrated one. Certain rights are created

in favour of the candidates at every stage, which cannot be taken

away by retrospective application of subsequent statutes. An

argument was also advanced that the learned Single Bench

committed grave illegality while placing reliance on the judgment

in the case of Kamla Godara & Ors. Vs. State of Rajasthan &

Ors. [AIR 2000 Rajasthan 130] because the said judgment

dealt with reservation in Pre-Medical Test and Pre-Veterinary Test.

The rules applicable to those selections do not contain any

statutory provision for determination of vacancies and therefore,

the issue of retrospectivity was not involved in the said matter.

Mr. Mathur further contended that in other recruitment

procedures, in similar situations, the respondents have increased

the number of posts for General category candidates so as to

compensate for reduction, which came around as a result of

providing EWS and MBC reservation retrospectively. During the

course of arguments, Mr. Mathur was requested to indicate the

(6 of 21) [SAW-264/2021]

particular selection process, wherein the number of posts have

been increased in the above manner. He frankly conceded that

there was no material with the appellants to fortify this

contention. On the basis of these submissions, Mr. Mathur

implored the court to accept the appeal, set aside the impugned

judgment of the learned Single Bench and direct the respondents

not to reduce the number of unreserved/open category seats in

the ongoing recruitment process or in the alternative, increase the

number of posts for the open category candidates so as to

compensate the loss caused due to enhanced MBC and EWS

reservation.

E converso, learned AAG Mr. Sunil Beniwal, and Mr.

Mahesh Thanvi, learned counsel representing the respondent

RPSC, vehemently and fervently opposed the submissions

advanced by the appellants' counsel. They urged that the validity

of the notifications dated 13.02.2019 and 19.02.2019 has already

been examined and affirmed by the Division Bench of this court in

the case of Bhagvat Singh (supra). They further urged that

none of the aspirants, who applied for the post in pursuance of the

recruitment notification has an established right to be appointed

against such post. EWS and MBC reservations were introduced by

the State Government as a mandatory consequence of the

amendment in the Constitution (One Hundred and Third

Amendment) Act, 2019, which came into force with effect from

12.01.2019. By virtue of the said amendment in the Constitution,

these reservations had to be provided in the ongoing recruitment

procedures also. The State Government undertook a rational

(7 of 21) [SAW-264/2021]

exercise of ensuring that the ongoing recruitment procedures are

not disturbed/delayed and thus, a specific stipulation was made in

the Notification dated 23.06.2019 that in such recruitment

procedures, wherein examination has been held or result has been

issued, 4% additional posts for MBC category candidates shall be

created. This decision was taken to ensure that the rights of the

candidates, in the cases wherein examination has been conducted

and/or result has been declared, are not prejudiced. However, in

such recruitment processes, including the one at hand, wherein

examinations had not been held, 5% reservation to MBC category

and 10% reservation to EWS category candidates has to be

provided by re-categorizing the posts. The recruitment process

was initiated for the vacancies, which had finally been determined

for the year in question and thus, the number of posts cannot be

increased. Mr. Beniwal and Mr. Thanvi fervently contended that

the view taken by the learned Single Bench, while turning down

the prayer of the petitioners by the impugned judgment dated

17.02.2021 is absolutely just and rational and the same does not

warrant any interference. In support of his contentions, Mr.

Beniwal relied upon the Supreme Court judgment in the case of

Anupal Singh & Ors. Vs. State of U.P. & Ors. [AIR 2019 SC

5652] and implored the court to dismiss the appeal and affirm

the impugned judgment.

We have given our thoughtful consideration to the

submissions advanced by the learned counsel representing the

parties and have gone through the material available on record.

The first and foremost submission of learned Senior Advocate Mr.

(8 of 21) [SAW-264/2021]

Mathur was that even if the EWS and MBC reservations had to be

applied to the present recruitment process, then also, number of

unreserved category posts could not have been reduced and ought

to have been compensated by increasing the number of posts. In

support of this contention, Mr. Mathur argued that same procedure

has been adopted by the State Government in other recruitment

procedures. However, upon a pertinent query being made, Mr.

Mathur could not fortify this submission by citing instance of any

recruitment process, wherein, as a result of introduction of EWS

reservation and increase in MBC reservation, the number of

General category seats have been increased.

Law is well-settled that the vacancies have to be

determined year wise and once the final determination of

vacancies has been done, the same cannot be changed otherwise

than in exceptional circumstances. Thus, the argument of Mr.

Mathur that a direction deserves to be given to the respondents to

increase the number of unreserved category posts is not tenable.

This argument of Mr. Mathur runs contrary to the averments

made in the memo of appeal, wherein at ground No.(B), the

appellants-writ petitioners have pleaded as below :-

"(B) That the rules of 1970 provides for determination of vacancies as per rule 9. Once, the determination is made, publication is done for inviting applications from eligible candidates to the posts earmarked for each category. Thus, a right accrues to every candidate to be considered to vacancy already determined under Rule 9."

The second limb of argument of Senior Counsel Mr.

Mathur was that since the recruitment process in the case at hand

(9 of 21) [SAW-264/2021]

had commenced before the Constitution (One Hundred Third)

Amendment was enacted and the Notifications dated 13.02.2019

and 19.02.2019 were issued by the State Government, EWS and

MBC reservation cannot be applied retrospectively to the present

selection process. This controversy is no longer res integra. The

notification dated 23.06.2019 was questioned in a bunch of Writ

Petitions led by S.B. Civil Writ Petition No.13208/2019

[Surendra Singh Rathore Vs. State of Rajasthan], wherein

the writ petitioners, who were candidates belonging to EWS

category and were seeking the benefit of reservation in the said

category in the ongoing recruitment process, challenged the said

notification to the extent, it provided such reservation only in the

recruitment processes, wherein examinations had not been held.

The petitioners therein were aggrieved of the alleged

discrimination inter se between them and the MBC category

candidates, to whom benefit of additional reservation had been

provided even in pending recruitment processes. The learned

Single Bench, rejected the writ petition and the appeals preferred

against the said order have been dismissed by the Division Bench

of this court in the case of Bhagvat Singh (supra). Though

there are slight factual distinctions in the said case and the

present controversy, but the fact remains that validity of the

order/notification dated 23.06.2019 has been affirmed by the

Division Bench of this court. There cannot be any dispute on the

issue that mere submission of application form does not give any

right to a candidate to be selected against the advertised post.

The applicants would be required to undergo competitive

examination evaluation whereof would lead to select list based on

(10 of 21) [SAW-264/2021]

merit being issued. Manifestly, thus, merely because the

application forms of the petitioner-appellants had been received

before issuance of the Notifications dated 13.02.2019 and

19.02.2019, the appellants-petitioners cannot claim to be

prejudiced on account of the reduction of the unreserved/open

category seats by effect of application of EWS/MBC reservation.

Suffice it to say that the appellants did not challenge the validity

of the Notifications dated 13.02.2019 and 19.02.2019 and the

only prayer made before the learned Single Bench was to strike

down clause (iii) of the order dated 23.06.2019.

The Notification dated 13.02.2019 provided for 5%

reservation to MBC category candidates in the educational

institutions and in service. Prior to issuance of this notification,

the reservation for MBC was 1%. Clause 2 of the notification

stipulates that it shall come into force at once.

The notification dated 19.02.2019 provided for 10%

reservation to EWS category.

Both the notifications are reproduced hereinbelow for

the sake of ready reference :-

"LAW (LEGISLATIVE DRAFTING) DEPARTMENT (GROUP P.II) Jaipur, February 13, 2019 No. F.2(12) Vidhi/2/2019. In pursuance of clause 93) of Article 348 of the Constitution of India, the Governor is pleased to authorize the publication in the Rajasthan Gazette of the following translation in the English Language of Rajasthan Pichhada Varg (Rajya ki Shaikshik Sansthaon Mein Seeton Aur Rajya Ke Adheen Sevaon Mein Niyuktiyon Aur Padon ka Aarakshan)

(11 of 21) [SAW-264/2021]

(Sanshodhan) Adhiniyam, 2019 (2019 ka Adhiniyam Sankhyank 2) :-

(Authorised English Translation) THE RAJASTHAN BACKWARD CLASSES (RESERVATION OF SEATS IN EDUCATIONAL INSTITUTIONS IN THE STATE AND OF APPOINTMENTS AND POSTS IN SERVICES UNDER THE STATE) (AMENDMENT) ACT, 2019 (ACT NO. 2 OF 2019 (Received the assent of the Governor on the 13th day of February, 2019) An Act Further to amend the Rajasthan backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State), Act 2017 Be it enacted by the Rajasthan State Legislature in the Seventieth Year of the Republic of India as follows :-

1. Short title and commencement - (1) This Act may be called the Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) (Amendment ) Act, 2019.

2. It shall come into force at once.

(Emphasis supplied)

"2. Amendment of section 3, Rajasthan Act No. 38 of 2017.- For the existing sub-section (1) of section 3 of the Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2017 (Act No. 38 of 2017), hereinafter in this Act

(12 of 21) [SAW-264/2021]

referred to as the principal Act, the following shall be substituted, namely:-

"(1) The reservation in respect of the annual permitted strength for admission into such educational institutions and courses in the State, as may be prescribed, for the More Backward Classes shall be five percent.".

3. Amendment of section 4, Rajasthan Act No. 38 of 2017.- For the existing sub-section (1) of section 4 of the principal Act, the following shall be substituted, namely :-

"(1) The reservation of appointments and posts in the, services under the State for the More Backward Classes shall be five percent."

"GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL (A-Gr. II) No. F 7(1) DOP/A-II/2019 Jaipur, dated :

19.02.2019 NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Various service Rules as mentioned in the Schedule appended hereto, namely:-

1. Short title and commencement (1) These rules may be called the Rajasthan Various service (Amendment) Rules, 2019.

(2) They shall come into force with immediate effect.

(13 of 21) [SAW-264/2021]

"2. Amendment.-(l) After the existing rule mentioned in column number 3 against each of the service rules as mentioned in column number 2 of the Schedule given below, the following new rule as mentioned in column number 4 shall be added, namely:

"Reservation of vacancies for Economically Weaker Sections:- Reservation of vacancies for Economically Weaker Sections shall be 10% in direct recruitment in addition to the existing reservation. In the event of non- availability of eligible and suitable candidate amongst Economically Weaker Sections in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure.

Explanation: For the purpose of this rule 'Economically Weaker Sections' shall be the persons who are bonafide resident of Rajasthan and not covered under the existing scheme of reservations for the Scheduled Castes, the Scheduled Tribes, the Backward Classes, the More Backward Classes and whose family has gross annual income below rupees 8.00 lakh. Family for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. The income shall include income from all sources i.e. salary, agriculture, business, profession etc. and it will be income for the financial year prior to the year of application. Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as, 'Economically Weaker Sections', irrespective of the family income:-

(i) 5 acres of Agricultural Land and above;

(ii) Residential flat of 1000 sq. ft. and above;

(iii) Residential plot of 100 sq. yards and above in notified municipalities; or

(14 of 21) [SAW-264/2021]

(iv) Residential plot of 200 sq. yards and above in areas other than the notified municipalities.".

(2) In the existing rule as mentioned in the column number 5 against each of the service rules as mentioned in the column number 2 o f the Schedule given below, for the existing expression "woman candidates belonging to general category and Economically backward classes", the expression "woman candidates belonging to General Category, Economically Backward Classes and Economically Weaker Sections shall be substituted."

(Emphasis supplied)

The order dated 23.06.2019 was issued by the

Government of Rajasthan, whereby it was directed that the MBC

reservation of 5% would be provided in all pending recruitments

as on date of notification, but EWS category reservation would be

extended to only those pending recruitments, where no

examination had been held. The relevant part of the Notification

dated 23.06.2019 is reproduced hereinbelow for the sake of ready

reference:-

(i) अति पिछड़ा वर्ग कके ललिए िहलिके दकेय 01 प्रतिशि आरक्षण ि तथा स सभा

सभति्गययों म इस शकेणा कके आवकेदक हेदक हो होनके कके कारण स सभा प्री प्रकभी प्रक्रियारक्रियाधा होन सभति्गययों म

अधरक्रियाधसिच होना दद होनानांक 13.02.19 कके िहि वि्गमा होन म प्री प्रकभी प्रक्रियारक्रियाधा होन स सभा

सभति्गययों म 05 प्रतिशि आरक्षण ददया या जाएरा।

(ii) प्री प्रकभी प्रक्रियारक्रियाधा होन सभति्गययों म में जया ज होन सभति्गययों म िरयों में परीक्षा आयेदक हो में जया जि हेदक हो चकयोजित हो चुकी हि

अ तथवा िरयों में परीक्षा िररणाम या जारयों में परी हेदक हो चका हि उ होन स सभा सभति्गययों म अधरक्रियाधसच ि होना

दद होनानांक 13.02.19 कके िहि अति पिछड़ा वर्ग कके अभयध तथ्गययों केदक हो 05

प्रतिशि आरक्षण का लिा सभ दके होनके सके अअनय ी प्रककसा सभा शकेणा कके अभयध तथ्गययों केदक हो

साटयों का होनकसा होन होन हेदक हो इसकके ललिए ऐसा सभति्गयायाँ में जया ज होनमके िरयों में परीक्षा आयेदक हो में जया जि

(15 of 21) [SAW-264/2021]

हेदक हो चकयोजित हो चुकी हि अ तथवा िरयों में परीक्षा िररणाम या जारयों में परी हेदक हो चका ह, म अति पिछड़ा वर्ग

कके ललिए 04 प्रतिशि अतिररकि िद स में जद या जि या जायरके। पवविति पव सभार सके

अतिररकि िद स में जद या जि करा होनके कयोजित हो चुकी काय्गवाहयों में परी समसनांधरक्रियाधि पव सभार दवारा अि होनके

सिर िर कयोजित हो चुकी या जाएरा ि तथा ऐसके अतिररकि िदयों कयोजित हो चुकी सनांंखया सके राया जस तथा होन

लिेदक होक सकेवा आयेदक होर/राया जस तथा होन कम्गचारयों में परी चय होन सेदक होर्ग / सभिर्ती एया जसा केदक हो अवरि

करवाया या जायकेरा।

(iii) में जया ज होन सभति्गययों म अ सभा िक ी प्रककसा सभा सिर कयोजित हो चुकी िरयों में परीक्षा आयेदक हो में जया जि होनहयों में परीनां

हई हि उ होन स सभा सभति्गययों म अधरक्रियाधसिच होना दद होनानांक 13.02.19 (अति पिछड़ा

वर्ग आरक्षण) एवनां अधरक्रियाधसिच होना दद होनानांक 19.02.19 (आध तथ्गक रूि सके कमया जेदक होर

वर्ग कके आरक्षण) प्रावरक्रियाधा होनयों कके िहि अति पिछड़ा अभयध तथ्गययों केदक हो 05

प्रतिशि ि तथा आध तथ्गक रूि कमया जेदक होर वर्ग अभयध तथ्गययों केदक हो 10 प्रतिशि आरक्षण

का लिा सभ ददया या जायकेरा।

In the case at hand, examination had not been held till

23.06.2019 and therefore as per clause (iii) of the Notification,

benefit of reservation had to be extended to both MBC and EWS

categories and accordingly, the posts were recategorized and the

corrigendum dated 19.09.2019 was issued. By Notification dated

23.06.2019, the State Government has taken a logical and

rational decision to ensure that the recruitment processes, which

have been finalized are not disturbed by recategorization of posts,

and thus, a direction has been issued for creation of 4% additional

posts for MBC category and the benefit of reservation to EWS

category has not been extended to such recruitments/selections.

However, reservation for both MBC and EWS was made applicable

in all recruitments and admission procedures, which had not been

finalized. The Notification dated 19.02.2019 was issued as a

consequence of the One Hundred and Third Constitution

Amendment. It cannot be disputed that the amendment in a

(16 of 21) [SAW-264/2021]

constitutional provision has to be given effect right from the date

of issuance thereof unless otherwise stipulated. The Notification

dated 19.02.2019, not being under challenge, the appellants-

petitioners cannot raise a grievance regarding the consequential

order dated 23.06.2019, whereby the Notifications dated

13.02.2019 and 19.02.2019 have been applied to all ongoing

recruitment processes. In the featured recruitment process, not a

single step other than collecting the application forms had been

crossed till 23.06.2019. The prayer of the petitioners to create

additional posts for the unreserved category is untenable because

determination of vacancies had already been done, well before

issuance of the recruitment notification and any alteration therein

would amount to violation of the rules.

The judgment in the case of Jagdish Prasad Vs.

State of Rajasthan & Ors. [AIR 2011 SC 3189] relied upon by

learned counsel for the appellants did not involve the controversy

of application of reservation in selection. In the said case,

criterion of promotion under the Rajasthan Transport Service

Rules,1979 was under consideration of the Hon'ble Supreme Court

and it was held that the respondents violated the rules. Hence the

said judgment is of no avail to the appellants as it is

distinguishable on facts.

Mr. Sunil Beniwal, learned AAG, relied upon the

judgment in the case of Anupal Singh (supra), wherein the

issue was as to whether the Government was justified in rectifying

the wrongful calculation in the number of vacancies in different

categories. The Hon'ble Supreme Court held that in order to

satisfy the percentage of reservation against various categories,

the distribution of vacancies could be revised without disturbing

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the eligibility criterion. Material observations made by Hon'ble

Supreme Court in the said case are reproduced hereinbelow :-

"42. The case in hand is distinguishable from those cases where the mode of selection was altered by fixing the cut-off marks after the selection process had completed/commenced; whereas in the present case only wrongful calculation in the number of vacancies in different categories had been corrected in order to satisfy the percentage of reservation against various categories as per the provisions of UP Reservation Act, 1994. Such correction cannot be said to changing the Rules or basis of selection. The eligibility criteria was not changed.

43. It is also pertinent to note that the proposition of law that Rules of game cannot be changed after the selection has been commenced itself has been referred for reconsideration by a larger Bench in Tej Prakash Pathak and Ors. v. Rajasthan High Court and Ors. MANU/SC/0263/2013 : (2013) 4 SCC 540. While referring the matter to a larger Bench, in Tej Prakash, the Supreme Court explained the ambit of the expression changing the Rules of the game as under:

"11. Those various cases deal with situations where the State sought to alter (1) the eligibility criteria of the candidates seeking employment, or (2) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut-off marks to be secured by the candidates either in the written examination or viva voce as was done in K. Manjusree v. State of A.P.

MANU/SC/0925/2008 : (2008) 3 SCC 512 or the

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present case or calling upon the candidates to undergo some test relevant to the nature of the employment (such as driving test as was in Maharashtra SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51).

15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the "rules of the game" insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore AIR 1965 SC 1293, etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the "rules of the game" stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."

44. As discussed earlier, the case in hand is clearly distinguishable from K. Manjusree (supra) and Hemani Malhotra (supra). The diploma holders were wrongly counted against the vacancies in OBC category; while they could not have been counted against OBC category and while doing so, a wrongful calculation had been arrived and the same has to be corrected by counting the diploma holders against the general category.

45. It is to be pointed out that instruction No. 7 in the advertisement dated 22.10.2013 stipulates that the number of vacancies may increase or decrease. Agriculture Service Rules, 1993 clearly stipulate that it

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is the prerogative of the government to determine the number of vacancies in accordance with the rules. As per Rule 15 of the Agriculture Service Rules, 1993, "the recruitment authority would determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other category candidates Under Rule 6." Rule 6 stipulates that "reservation for Scheduled Castes, Scheduled Tribes and other Backward Class candidates would be done according to the orders of the government prevalent at the time of appointment."

46. Rule 15(3) of the Agriculture Service Rules, 1993 provides for calling the successful candidates, keeping in mind the vacancy of the reserved categories required Under Rule 6 after the declaration of result of written examination and for the adequate representation of each category, three times of candidates qua vacancies are required to be invited for the interview. Thus, on the total advertised number of seats for open category i.e. 3616 x 3 = 10848 candidates were eligible Under Rule 15(3) of the Agriculture Service Rules, 1993 to be called for interview.

47. In the impugned judgment, the High Court has observed that by decreasing the number of seats of General category, number of candidates of General category were illegally deprived from appearing in the interview. The High Court has also observed that by increasing the number of seats of OBC category, more candidates have been called for interview, even though they were not eligible as per advertisement dated 22.10.2013 and thus, changing the number of vacancies for each category, has prejudiced the number of candidates who are to be called for interview. The relevant findings of the High Court is as under:

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"...Thus, on the total advertised number of seats for open category i.e. 3616 x 3 = 10848 candidates were eligible Under Rule 15(3) for interview test. However, by decreasing the number of seats vide letter dated 20.08.2014 i.e. 2515 x 3 = 7545 candidates were invited, thus, 10848-7545 = 3303 candidates were illegally deprived to appear in the interview test. However, in the Other Backward Class category, only 566 vacancies were advertised against which only 1698 candidates would be eligible to appear in the interview. However, by illegally increasing the number of vacancies to 2030, 6090 candidates had been invited for the interview. Thus, in the Other Backward Class category, 6090- 1698 = 4392 more candidates were called for the interview, even though they were not eligible as per advertisement dated 22.10.2013. Thus, by changing the number of vacancies for different categories amounts to violation of Rule 15(3) of Rules, 1993 during the pendency of the advertisement and thus, depriving of 3303 general category candidates, even to appear in the interview and allowing 4392 more candidates of OBC in the zone of consideration for the selection, amounts to changing the Rule of the game during the process of selection......"

48. By careful consideration, we are unable to countenance the above view taken by the High Court that the change in number of vacancies has illegally deprived 3303 candidates in General category from appearing in the interview and had benefitted the OBC category candidates. Be it noted that the writ petitions were filed by the candidates who appeared for

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interview and were unsuccessful. It is not known that what were the marks secured by the writ Petitioners/candidates in the written examination and what were their position in the merit list. The writ Petitioners who are unsuccessful candidates have not demonstrated as to how they were prejudicially affected by the change in number of vacancies against "General category" and "OBC category". The High Court was not right in making a generalised observation that decrease in the number of vacancies against "General category" has illegally deprived 3303 candidates from appearing in the interview."

The above judgment covers the controversy at hand on

all fours.

Consequently, we are of the firm opinion that the view

taken by the learned Single Bench while upholding validity of the

order dated 23.06.2019 and turning down the prayer of the

appellants writ-petitioners to quash the same and in the

alternative to direct the respondents to increase the number of

posts for the unreserved category so as to compensate the so

called loss caused by the implementation of the MBC and EWS

reservations, is absolutely justified. The impugned judgment

dated 17.02.2021 does not suffer from any infirmity, warranting

interference. Hence, the appeal fails and is dismissed as being