Rajasthan High Court

Mukesh Gharana S/O Shri Yadram ... vs The High Court Of Judicature For ... on 2 September, 2023

Bench: Manindra Mohan Shrivastava, Ashutosh Kumar

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                D.B. Civil Writ Petition No.13080/2023

1.       Mukesh Gharana S/o Shri Yadram Gharana, Aged About
         31 Years, R/o 139-B Ganesh Vihar Colony, Mukundpura
         Road, Bhankrota, Jaipur - 302026 (Rajasthan).
2.       Vikram Meena S/o Shri Hariya Ram Meena, Aged About
         25 Years, Resident Of Plot No. 31, Rajiv Nagar Vistar,
         Sumel Village, Jaipur - 302031 (Rajasthan).
                                                                      ----Petitioners
                                       Versus
1.       The High Court Of Judicature For Rajasthan, Jodhpur
         Through The Registrar General, Jodhpur/jaipur.
2.       The    Registrar        (Examination)          Rajasthan      High   Court,
         Jodhpur.
3.       State Of Rajasthan, Represented Through The Principal
         Secretary, Department Of Personnel, Government Of
         Rajasthan, Secretariat, Jaipur.
                                                                    ----Respondents

For Petitioner(s) : Mr. Ayush Singh, Advocate for Mr. Punit Singhvi, Advocate For Respondent(s) : Mr. A.K. Sharma, Senior Advocate assisted by Mr. V.K. Sharma, Advocate Mr. S.S. Raghav, Additional Advocate General

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Order

02/09/2023

This petition has been filed by the petitioners praying for

following reliefs:-

"(I) By an appropriate writ, order or directions in the nature thereof, the sub Clause (2) of Clause 14 of order dated 05.12.2002 (Rajasthan High Court Staff Service Rules, 2002) being arbitrary and against the spirit of

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Constitution of India of providing equal opportunities in public employment, may be declared as ultra-virus, illegal and unconstitutional.

(II) by an appropriate writ, order or direction in the nature thereof the respondents may be directed to make suitable amendment to the sub Clause (2) of the Clause 14 of order dated 05.12.2002 (Rajasthan High Court Staff Service Rules, 2002) by providing additional relaxation in the total margin of mistakes may be allowed to candidates belongs to Schedule Caste and Schedule Tribe category. The action of the Respondents of not protecting the interest of the reserved category candidates who are not able to get selected on the post of personal assistant due to the present rule which is antithetical to the mandate of Article 16 of providing equal opportunities in public employment, as such, the said rule being against the Constitutional provision may be quashed and set-aside.

(III) By an appropriate writ, order or directions in the nature thereof, the Clause No.13 of the Advertisement dated 13.07.2003 which provides for the Scheme of Examination wherein required Speed of Dictation has been set to 90 words per minute with margin of 5% mistakes for all the candidates including SC/ST also, may kindly be declared as ultra vires, illegal and unconstitutional.

(IV) By an appropriate writ, order or directions in the nature thereof, the respondents may be declared to issue category wise cut of marks of categories of SC and ST while declaring results of Junior Personnel Assistant (English) in pursuance of advertisement dated 23.07.2023.

(V) By an appropriate writ, order or directions in the nature thereof, the respondents may be directed to provide proper reservations and equal opportunities to SC and ST candidates in recruitment of Junior Personal Assistant (English) by providing relaxation in the margin of permissible mistakes.

(VI) Copy of the Writ Petition may kindly be awarded in favour of humble petitioners."

Learned counsel for the petitioners would submit that though

minimum standard laid down for qualifying examination for the

post of Junior Personal Assistant requires speed of 90 words per

minute, there is no provision for relaxing standard for candidates

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belonging to SC/ST category. He would submit that in the past

when suitable candidates were not available, the respondents had

relaxed the minimum standard of 90 words per minute to 80

words per minute. He would submit that after issuance of

advertisement in the present case, amendment has been carried

out in the Rules governing recruitment to the post of Junior

Personal Assistant in the High Court and again no relaxation has

been provided. He has placed reliance upon the decision of the

Supreme Court in the cases of Ram Bhagat Singh and Another

Versus State of Haryana and Another; (1997) 11 SCC 417

and Neil Aurelio Nunes (OBC Reservation) and Others

Versus Union of India and Others; (2022) 4 SCC 1.

On the other hand, learned Senior Counsel appearing for the

respondents would submit that there is no provision for relaxation

under the Rules. He would submit that Supreme Court in the case

of Jarnail Singh and Others Versus Lachhmi Narain Gupta

and Others; (2022) 10 SCC 595 held that the provision with

regard to relaxation are essentially framed under Article 16(4) and

Article 335 of the Constitution of India which are enabling in

nature.

At present, we find that validity of the provisions contained

in sub-clause (2) of Clause 14 of notification dated 05.12.2002

(Rajasthan High Court Staff Service Rules, 2002) is challenged on

the ground that it is arbitrary as it denies equal opportunities in

public employment for the reason that there is no provision for

relaxing criteria for reserved category candidates nor does there

exist any provision for relaxation.

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Reliance has been placed on the decision of the Supreme

Court in the case of Ram Bhagat Singh and Another Versus

State of Haryana and Another (supra).

In the aforesaid case, it has been observed in concluding

paragraphs as under:-

"6. In that view of the matter, in our opinion, in the interest of justice and our constitutional mandates and in the light of the efficiency of the services and with a view to create a sense of justice, it is necessary for the Government concerned to consider this question as to what should be the minimum percentage of marks necessary for the administration. We direct that the Government will make a conscious decision objectively before the next selections for the post in Haryana Judicial Service take place, and determine a minimum percentage of marks consistent with efficiency and the need for ensuring equality of opportunity to scheduled castes and scheduled tribes.

7. It was also contended by Sri Venkataramani that some of the candidates belonging to the scheduled castes and scheduled tribes have become over aged , therefore, the Government should also consider whether further relaxation in age in favour of scheduled castes and scheduled tribes can be made; and if so, to what extent without hampering efficiency of the administration. This should also be considered before the next selections for appointment to the post are made."

In the case of Jarnail Singh and Others Versus Lachhmi

Narain Gupta and Others, it has been categorically held that

provisions with regard to reservation are enabling in nature. It has

held as under:-

"1) Yardstick for arriving at quantifiable data

12. Articles 16(4) and 16(4-A) are enabling provisions.

It was held in M. Nagaraj (supra) that the discretion of

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the State to provide reservation is subject to the existence of backwardness and inadequacy of representation in public employment. It was further held that backwardness has to be based on objective factors whereas inadequacy has to factually exist. There is no fixed yardstick to identify equality, justice and efficiency which are variable factors and it depends on the facts and circumstances of each case. This Court was of the further opinion that the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured on the basis of data. In case of a challenge made to reservations provided by the State Government, it is incumbent on the State Government to satisfy the Court that the decision is supported by quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Article 335 of the Constitution of India.

13. The exercise of identifying and measuring concepts of efficiency, backwardness and inadequacy of representation on the basis of data depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.

14. The learned Attorney General argued before this Court in Jarnail Singh (supra) that this Court did not indicate any test for determining adequacy of representation in service in M. Nagaraj (supra). He submitted that it is important to decide the yardstick applicable for arriving at quantifiable data showing inadequacy of representation of SCs and STs to avoid

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multiple litigation. This Court refused to lay down any criteria for determining the adequacy of representation, as the States were given liberty to determine the factors relevant for deciding adequate representation, depending upon the promotional posts in question.

15. It is well-established that it is neither legal nor proper for the Courts to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within their domain under the Constitution. In Asif Hameed v. State of Jammu & Kashmir, this Court observed as under:

19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive,..."

In the case of Neil Aurelio Nunes (OBC Reservation) and

Others Versus Union of India and Others (supra), wherein

the Hon'ble Supreme Court has held that the special provisions

can ameliorate structural inequalities and provide an equitable

setting to level up the weaker sections so that real or factual

equality can be ensured and does not remain illusory. The other

decision of the Supreme Court in the case of V. Lavanya and

Others Versus State of Tamil Nadu and Others; (2017) 1

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SCC 322, validity of provisions with regard to relaxation was

upheld.

The provisions with regard to reservation and whether in any