Satya Ranjan vs State Of Rajasthan ...
2023 Latest Caselaw 4360 Raj

[2023/RJJD/014449] (1 of 6) [CW-6350/2023]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6350/2023

Satya Ranjan S/o Late Shri D.b. Pathak, Aged About 31 Years, Resident Of C-203, Victoria Haven Apartments, Krishna Reddy Layout, Domlur, Bangaluru State Karnataka, Pin 560071 (India).

----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. Yashpal Khileree

For Respondent(s) : Mr. Manish Vyas, AAG assisted by Mr. Kailash Choudhary.

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

10/05/2023

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.

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

for the post of Assistant Professor (Economics) for one post out of

47 which was kept reserved to Specially Abled Person-(H.I.

category) in the advertisement dated 18.12.2020.

3. The petitioner submitted her application form as a PH candidate

along with requisite statutory certificates in support of his being a

person with hard of hearing/ hearing impaired.

4. The Rajasthan Public Service Commission finding the petitioner

to be meritorious and eligible, called his 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, (Hard of hearing) 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 including the petitioner, whose

name was mentioned at serial No.46.

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.

8. Mr. Khileree, learned counsel for the petitioner argued that the

respondents' stand that the petitioner who belongs to Karnataka,

is not entitled for benefit of reservation as a person with disability

being a horizontal reservation is ex- facie illegal and untenable.

9. 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

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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.

10. 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 candidate

belonging to State other than State of Rajasthan to claim benefit

of reservation under the Rules of 2018.

11. 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.

12. Heard learned counsel for the parties and perused the material

available on record.

13. 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:

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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 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 section 34.

(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."

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14. 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.

15. 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.

16. 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.

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

appointment solely on account of his being resident of Karnataka.

18. 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 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

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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.

19. As an upshot of the discussion foregoing, the present writ

petition is allowed.

20. 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.

21. The petitioner shall be entitled for notional benefits from the

date of issuance of select list, namely, 01.12.2022.

22. The stay petition also stands disposed of.

(VINIT KUMAR MATHUR),J 85-AnilSingh/-

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