Manish Chauhan vs State Of Rajasthan
2023 Latest Caselaw 252 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16676/2022

Manish Chauhan S/o Shri Shyam Singh Chauhan, Aged About 36 Years, Resident Of Village Post Ganiyawar, Tehsil Chakarnagar, District Etawah (Up), Presently Residing At 52-B, Ashok Nagar, Mahamandir, Jodhpur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Higher Education Department, Government Of Rajasthan, Secretariat, Jaipur.

2. Commissioner, College Education, Rajasthan, Jaipur.

3. Joint Director (Hrd), College Education, Rajasthan, Jaipur.

4. Rajasthan Public Service Commission, Through Its Secretary, Ajmer.

----Respondents

For Petitioner(s) : Mr. Yash Pal Khileree For Respondent(s) : Mr. Manish Vyas, AAG with Mr. Kailash Choudhary

JUSTICE DINESH MEHTA

Order

09/01/2023

1. The petitioner has preferred the present writ petition being

aggrieved with the action of the respondents, particularly,

respondent No.2-Commissioner of College Education, who has

refused to give appointment to the petitioner, though after finding

him meritorious and eligible, the Rajasthan Public Service

Commission had recommended his name.

2. The facts narrated in a nutshell are that the petitioner had

vied for the post of Assistant Professor (Mathematics) for one post

out of 34 which was kept reserved to Specially Abled Person-(H.I.

catergory) in the advertisement dated 18.12.2020.

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3. The petitioner submitted his application form as a PH

candidate along with requisite statutory certificates in support of

him being a person with hearing impairment.

4. The Rajasthan Public Service Commission finding the

petitioner to be meritorious and eligible, called him for document

verification and then, recommended his name for appointment.

5. It is asserted by the petitioner that the petitioner was the

only successful candidate in his category, (Hearing Impaired) and

pursuant to the recommendation made to the State Government,

the respondent No.3 called all the persons mentioned in the list

appended with the communication dated 08.09.2022, including

the petitioner, whose name was mentioned at serial No.33.

6. It is the contention of the petitioner that the petitioner

despite appearing in counseling was not provided posting though

other candidates have been provided posting/appointment orders.

7. Being aggrieved of such action of the respondents, the

petitioner has approached this Court. The matter was heard on

various occasions by this Court and vide proceedings dated

11.11.2022; 21.11.2022; 23.11.2022 and 06.12.2022, the Court

prima-facie found the petitioner's stand to be legit. Lately, on

15.12.2022, this Court has issued the following direction:

" 2. No rule or law has been brought to the notice of

the Court, which impeaches petitioner's eligibility,

simply because he happens to be specially abled person

(hearing impaired) from Uttar Pradesh.

3. The State's stand is clearly arbitrary and without any

reason and rhymes.

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4. The State is therefore, directed to issue appointment

order to the petitioner on or before 31.12.2022, if he is

otherwise eligible."

8. In furtherance of the directions so issued, the State

Government has passed a speaking order dated 05.01.2023

and rejected petitioner's candidature, inter alia, observing

that the petitioner hails from Uttar Pradesh and thus, not

entitled for reservation in the State of Rajasthan.

9. Copy of the speaking order dated 05.01.2023 submitted

by the learned Additional Advocate General is taken on

record.

10. Mr. Khileree, learned counsel for the petitioner argued

that the respondents' stand that the petitioner who belongs

to Uttar Pradesh, is not entitled for benefit of reservation as a

person with disability being a horizontal reservation is ex-

facie illegal and untenable.

11. It was argued that aspect as to whether a person

belongs to the State or other than the State of Rajasthan is

relevant only in cases of caste based reservation. So far as

other reservations which do not depend upon castes are

concerned, a candidate cannot be denied his right simply

because he is from outside the State of Rajasthan.

12. Learned counsel navigated the Court through the

relevant Rules (Rajasthan Rights of Persons With Disabilities

Rules, 2018) so also the terms of advertisement and argued

that there is nothing which restricts or denies the rights of a

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candidate belonging to State other than State of Rajasthan to

claim benefit of reservation under the Rules of 2018.

13. Mr. Manish Vyas, learned Additional Advocate General on

the other hand submitted that if the benefit of reservation

under the Rules of 2018 is accorded to the petitioner, it will

be against the interest of the person with disabilities of the

State of Rajasthan. He added that as the reservation of PH

category is also vertical reservation, the principles applicable

to caste based reservation, will equally apply to the PH

category reservation.

14. Heard learned counsel for the parties and perused the

material available on record.

15. Indisputably, the petitioner has claimed reservation under

the Rules of 2018. A perusal of the substantive provision

contained in Rule 5 of the Rules of 2018, which reads thus :-

"5.Reservation of Vacancies- (1) In every establishment 4% of the vacancies of direct recruitment in the cadre shall be reserved for persons or class of persons with benchmark disabilities according to the section 34 of the Act. In the posts identified for each disability by the Government of India under section 33 and such reservation shall be treated as horizontal reservation and the vacancies for persons with benchmark disabilities shall be maintained as a separate class:

Provided that where the nomenclature of any post in the State Government is different from the post in Government of Indian or nay post in the State Government does not exist in any department of the Government of India, the matter shall be referred to the Committee constituted under rule 6 fro identification of the equivalent post in the State

(5 of 7) [CW-16676/2022]

Government. The Committee shall identify the equivalent post on the basis of nature of job and responsibility of each post.

(2) Reservation in posts identified for one or more categories,-

(a) If a post is identified suitable only for one category of disability, reservation in that post shall be given to persons with that disability only;

(b) Reservation of 4% shall not be reduced in such cases and total reservation in the post will be given to persons suffering from the disability for which it has been identified;

(c) If in case the post is identical suitable for two categories of disabilities, reservation shall be distributed between persons with those categories equally, as far as possible.

(3) Maintenance of Rosters,-

(a) All establishments shall maintain a separate 100 point roster register for determining/effecting reservation for the persons with benchmark disabilities.

(b) The register shall have cycle of 100 points and each cycle of 100 points shall be divided into four blocks, comprising the following points;

1st Block- Point No.1 to point No.25 2nd Block- Point No.26 to point No.50 3rd Block- Point No.51 to point No.75 4th Block- Point No.76 to point No.100 The above block shall be earmarked and reserved for persons with benchmark disabilities- one point for each of the three categories of benchmark disabilities mentioned in clauses (a), (b) and (c) and one point for categories of benchmark disabilities mentioned in clauses (d) and (e) of sub-section(1) of section34.

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(c) All the vacancies shall be entered in the relevant roster register which shall be maintained by the head of the establishment.

(d) After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start."

16. A perusal of Rule 5 of the Rules of 2018 leaves no room for

ambiguity that the reservation for PH category is a horizontal

reservation and it has no nexus with the residence of a person.

17. The residence of a person is significant or relevant in the case of

caste based reservation, because the Constitutional Provision and

notification issued thereunder requires a person to be a resident of that

State in order to claim caste based reservation. It is the backdrop of the

Constitutional Provision so also in light of catena of decisions of Hon'ble

the Supreme Court and this Court, that a person residing out of the

State cannot claim caste based reservation in the State of Rajasthan.

However, in absence of any such stipulation in the Constitution or under

the Rules of 2018, the State cannot deny a candidate of a State other

than the State of Rajasthan to claim benefit of reservation under the

Rules of 2018.

18. Almost similar situation came up for consideration before a

coordinate Bench of this Court in the case of Amar Kumari vs. State of

Rajasthan & Ors. (S.B. Civil Writ Petition No. 7512/2022), where the

issue was in relation to a candidate belonging to EWS - Economically

Weaker Section and this Court has held that a female migrating to State

of Rajasthan is entitled for reservation for consideration of her

candidature under EWS category.

19. In the instant case also, the petitioner has been denied

appointment solely on account of him being resident of Uttar Pradesh.

20. According to this Court, the State's action is not only illegal and

contrary to Rules of 2018 but also against the federal structure of the

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State and violation of Article 16(2) of the Constitution of India. The

State's action amounts to denial of appointment on the basis of

residence of a person, which has been held to be illegal by Hon'ble the

Supreme Court in catena of decision including the judgment dated

17.07.2001 rendered in the case of Ganga Ram Moolchandani vs. State

of Rajasthan & ors. [Appeal (Civil) No. 6469 of 1998] (2001) 6 SCC 89.

21. As an upshot of the discussion foregoing, the present writ petition

is allowed; the impugned communication dated 05.01.2022 is

hereby quashed.

22. The respondent- State is directed to issue appointment order

to the petitioner within a period of four weeks from today, if he is

otherwise eligible.

23. The petitioner shall be entitled for notional benefits from

the date of issuance of select list, namely, 22.09.2022.

24. The stay petition also stands disposed of.

(DINESH MEHTA),J 101-pooja/-

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