Rajasthan High Court - Jodhpur

Gopal Krishna Rathod And Anr vs The State Of Rajasthan And Anr ... on 24 November, 2023

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 14113/2017

1.       Gopal Krishan Rathod S/o Nathji Rathod, R/o Village And
         Post      Bansia,    Via        Chinch,     Tehsil         Bagidora,    District
         Banswara Raj.
2.       Hiralal Nai S/o Babulal Nai, R/o Village And Post Ninor,
         Tehsil Arnod, District Pratapgarh.
                                                                        ----Petitioners
                                          Versus
1.       The State Of Rajasthan Through The Secretary, Rural
         Development              And          Panchayati       Raj       Department,
         Government Secretariat, Jaipur, Rajasthan.
2.       The Director, Primary Education, Rajasthan Bikaner.
                                                                      ----Respondents


For Petitioner(s)             :        -----
For Respondent(s)             :        Mr. Pankaj Sharma, AAG



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

24/11/2023

1. Mr. Pankaj Sharma, learned Additional Advocate General

appearing on behalf of the respondents submits that the

controversy involved in the present writ petition is no more res-

integra and it is covered by the decision rendered by a coordinate

Bench of this Hon'ble Court in Samarath Mal Kumhar & Ors.

Vs. State of Rajasthan & Ors. ; S.B. Civil Writ Petition

No.12859/2018 on 20.09.2022. The operative portion of the

order reads as under:

"I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

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The advertisement dated 31.07.2018 (Annex.-5 in SBCW No. 12859/2018), has been issued by the State under the Act of 1994, the Rules of 1996 and the Rajasthan Scheduled Areas Subordinate, Ministerial and Class-IV Service (Recruitment and Other Service Conditions) Rules, 2014 ('the Rules of 2014'), for TSP Area. The advertisement, at the outset in Clause 4 of the advertisement, indicated that as no posts for OBC/MBC category have been reserved in TSP Area, the candidates belonging to the said category, would not be entitled for relaxation in the upper age limit/educational qualification and they can only apply as General category candidates.

The requisite qualifications in terms of the notification dated 23.08.2010 and 29.07.2011 were indicated, inter alia, requiring at least 50% marks at the graduation level. Under Clause 9.4, it was inter alia indicated that 5% relaxation would be available to candidates belonging to SC/ST/PH category candidates in the educational qualifications. In Clause 11.2 relating to reservation, it was reiterated that as in TSP Area of the State, no posts are reserved for OBC and MBC and, therefore, the candidates can only apply as General category candidates. The recruitment was based on marks obtained by the candidates at REET/RTET and at graduation, based on which, merit was to be prepared.

The petitioners, who belong to the OBC category, in terms of the advertisement and the stipulations made therein, filed online applications with indication of their category as 'General', whereafter, the present petitions have been filed seeking to question the non- grant of relaxation to the petitioners in terms of the notification issued by NCTE dated 29.07.2011.

The relevant Clause of the notification dated 27.09.2011, inter alia, reads as under:-

"(ii) Reservation Policy:

Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories, such as SC/ST/OBC/PH."

A perusal of the above stipulation would reveal that relaxation upto 5% in the qualifying marks have been directed to be allowed to the candidates belonging to reserved categories, such as SC/ST/OBC/PH.

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It would be relevant at this stage to notice that the Rules of 2014, which deals with the recruitment and other service conditions for the Scheduled Area, under Rule 8 provides for reservation of vacancies for SC/ST, Rule 9 provides for reservation of vacancies for Women, Rule 10 provides for reservation of vacancies for Outstanding Sportspersons and Rule 11 provides for reservation of vacancies for Ex-serviceman. The Rules don't envisage any reservation for candidates belonging to OBC category.

Further, the notification dated 04.07.2016 (Annex.-14) issued by the State under Article 244(1) of the Constitution of India, inter alia, provides as under:-

"fofufnZ"V vuqlwfpr {ks=ksa esa] jkT; lsokvksa dks NksM+dj vU; lHkh jktdh; lsokvks ds inksa ij lh/kh HkrhZ }kjk Hkjh tkus okyh fjfDr;ka dh 45 izfr'kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tutkfr;ksa ,oa 5 izfr'kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tkfr;ksa ds vH;fFkZ;ksa ls Hkjh tk;saxhA vuqlwfpr {ks= dh "ks'k 50 izfr'kr fjfDr;ksa ij fdlh tkfr ;k oxZ ds vuqlwfpr {ks= ds vH;FkhZ dk ;ksX;rk ds vk/kkj ij ohj;rk Øe esa fu;ekuqlkj p;u fd;k tk;sxk] pkgs og vuqlwfpr tkfr ;k vuqlwfpr tutkfr ;k vU; fdlh oxZ ls lacaf/kr gksA"

A perusal of the above stipulation in the notification dated 04.07.2016 reveals that 45% vacancies have been reserved for Scheduled Tribes of Scheduled Area, 5% for Scheduled Castes of Scheduled Area and for the rest 50% of the vacancies of the Scheduled Area, it has been provided that candidates belonging to any caste or class of Scheduled Area based on merit, would be selected even if they belong to ST or SC or any other class. As such, apparently while the entire vacancies for the Scheduled Area, have been confined to candidates belonging to Scheduled Areas, the reservation therein has been provided only to candidates belonging to ST and SC categories and rest of the reservations under the Rules of 2014 are horizontal reservations.

The language of the notification dated 29.07.2011 quoted hereinbefore providing for reservation policy and relaxation therein to the extent of 5% is very specific, wherein the relaxation in the qualifying marks has been allowed to the candidates belonging to

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reserved categories, which have been illustrated by indicating SC/ST/OBC/PH.

The emphasis in the notification, which applies to recruitments throughout the country, essentially is not with regard to providing the relaxation to the four categories indicated therein, in fact the emphasis is on providing relaxation to candidates belonging to the 'reserved categories' i.e. wherever under the applicable Service Rules, reservation has been provided for the recruitment of Teachers, only those who have been provided reservation in the recruitment, they would be entitled to relaxation in the qualifying marks. By the said notification, the relaxation de hors the reserved category has not been conferred on the said four categories i.e. SC/ST/OBC/PH. For seeking relaxation under the notification the candidate has to fall in the 'reserved category'.

The above aspect came up for consideration before Division Bench in Bharti Upadhayay v. State of Raj. & Ors.: DBSAW No.1122/2017, decided on 10.08.2018, wherein it was laid down as under:-

"For proper adjudication of the case, we need to refer to the Notification dated 29.07.2011 with respect to the reservation policy. The same reads as under:-

"(ii) Reservation Policy :

Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to the reserved categories such as SC/ST/OBC/PH."

A perusal of the above shows that 5% relaxation is granted to the reserved categories. The language of the provisions for relaxation as reproduced above provides relaxation to the candidates belonging to the reserved categories such as S.C/S.T./O.B.C./P.H. The words 'such as' indicate that what follows thereafter are only illustrative and not exhaustive, as held by the Hon'ble Supreme Court in the case of Royal Hatcheries Pvt. Ltd. Vs. State of Andhra Pradesh and another etc. reported in AIR 1994 Supreme Court 666. Thus, the categories S.C./S.T./ O.B.C./P.H. are illustrative and mentioned for 'example' only. Whereas, relaxation requires to be given to the candidates "belonging to the reserved categories" and 'widow category' is a reserved category. The reservation policy as per the Notification dated 29.07.2011 allows relaxation upto

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5% in the qualifying marks to the reserved categories. Admittedly, the widow category is also a reserved category and therefore, cannot be left out of such categories."

(emphasis supplied)

In that view of the matter, apparently as the notification is confined to 'reserved categories', for seeking the relaxation under the notification, there has to be a reservation for the category seeking relaxation else they would not be entitled to any relaxation on the strength of their belonging to a category, which otherwise enjoys reservations under other recruitments.

Though plea has been raised that the action of the respondents is creating an anomalous situation, wherein the same candidate is entitled to get relaxation in Non-TSP Area and is being deprived of the relaxation in the TSP Area, the plea is unsustainable. The reason is obvious, inasmuch as, in Non-TSP Area, reservation is provided to OBC category candidates and, therefore, once the reservation is provided, in terms of the notification dated 29.07.2011, which provides for relaxation to 'reserved categories', the candidates belonging to OBC, are also entitled to relaxation.

The emphasis laid on the fact that as the petitioners have been granted relaxation while acquiring B.Ed. and if they are not granted relaxation in the extent recruitment, their qualification would be rendered redundant, cannot by itself be a reason to claim relaxation, inasmuch as, the very fact that a minimum eligibility condition has been indicated for recruitment, merely because on account of such condition, the candidates, who have acquired qualification based on relaxed norms are rendered ineligible, cannot be a reason to seek relaxation, inasmuch as, the recruitment norms are not dependent on the norms meant for acquiring qualification.

The submission made that as the Scheduled Area is a Class in itself and 100% vacancies are to be filled up by candidates belonging to Scheduled Area, it should be deemed that the candidates belonging to OBC category being a part of 50% vacancies meant for residents of Schedules Area, the same by itself is a reservation, cannot be countenanced. Besides the fact,

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confining the 50% vacancies for candidates belonging to Scheduled Area can't by itself be termed as reservation, if benefit of relaxation was to be provided in terms of notification dated 29.07.2011 by treating the same as reservation, all the residents of the area would be entitled to such relaxation.

The submissions made on part of the respondents based on the law that those belonging to reserved category, based on relaxation, can't seek migration to the General category, apparently would have no application to the present circumstances, inasmuch as, when admittedly, no reservation is available for candidates belonging to OBC category, consequently, as they are not part of reserved category and, therefore, not entitled to relaxation, there doesn't arise any question of their migrating to General category.

In view of the above, the judgment in the case of Vikas Sankhala (supra), which has been cited on the aspect of migration, would have no application.

Attempt has been on part of the petitioners, to claim that 50% vacancies, which are to be filled up by candidates of the Scheduled Area cannot be termed as meant for 'General category' essentially to get out of the submissions made on part of the respondents regarding bar in migration for those having enjoyed the relaxation, which plea also apparently has no basis, inasmuch as, the General category essentially means, which is open to all, irrespective of the caste/class and only on account of the fact that in the present recruitment, the same has been confined to candidates belonging to Scheduled Area, cannot change the character of the said posts from General category to Reserved category.

Qua the binding nature of the notification of 2011, for which, reliance has been placed on judgment in the case of Ram Sharan Maurya (supra), there is no dispute on the said aspect. The judgments in the case of Shiv Kumar Pathak (supra) and National Federation of the Blind (supra) in the circumstances of the case, have no application to the facts of the present cases.

In view of the above discussion, as the notification dated 29.07.2011, is confined to reserved categories and, there is no reservation provided to

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candidates belonging to OBC category in the present recruitment, the said notification, has no application in the case of the petitioners and they have rightly been denied relaxation in the qualification.

Consequently, there is no substance in the writ petitions, the same are, therefore, dismissed."

2. Accordingly, this writ petition is dismissed in the light of the

decision rendered vide order dated 20.09.2022 passed in

Samarath Mal Kumhar's case (supra). All pending applications

stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

36-Zeeshan