Rajasthan High Court - Jodhpur

Suresh Kumar Vishnoi vs Rajasthan High Court ... on 12 September, 2024

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2024:RJ-JD:38139-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                D.B. Civil Writ Petition No. 14279/2024

Gokala Ram S/o Shri Keshara Ram, Aged About 44 Years, R/o
Kharia Tala, Bhadkha, Barmer, Rajasthan.
                                                                       ----Petitioner
                                       Versus
1.       The Rajasthan High Court Jodhpur, Through Its Registrar
         General, Rajasthan High Court Jodhpur.
2.       The   Registrar         (Examination),          Rajasthan     High    Court
         Jodhpur.
                                                                    ----Respondents
                                 Connected With
                D.B. Civil Writ Petition No. 13130/2024
Suresh Kumar Vishnoi S/o Shri Sohan Lal Vishnoi, Aged About
37 Years, Resident Of House No. 4, Shiv Vihar, Saran Nagar,
Jodhpur (Rajasthan).
                                                                       ----Petitioner
                                       Versus
1.       Rajasthan High Court, Jodhpur Through Its Registrar
         General.
2.       Registrar (Exam), Rajasthan High Court, Jodhpur.
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Dheerendra Singh Sodha,
                                   Mr. Jitendra Singh Rathore.
For Respondent(s)            :     Ms. Abhilasha Kumbhat,
                                   Mr. Pankaj Sharma.



      HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                       ORDER

12/09/2024

Per, Kuldeep Mathur, J.

1. Both these writ petitions having common controversy were

heard together and are being decided by this common judgment.

[2024:RJ-JD:38139-DB] (2 of 6) [CW-14279/2024]

2. Briefly stated facts of the present matter are that the

respondent- Rajasthan High Court, Jodhpur had issued an

advertisement dated 09th April 2024 inviting applications from

eligible candidates for the direct recruitment against 222 posts of

Civil Judge and Judicial Magistrate in the Rajasthan Judicial

Services. Pursuant to the aforesaid advertisement, the petitioners

who belong to Ex-Serviceman- OBC/NCL category applied for the

advertised posts.

3. The advertisement dated 09th April 2024 manifestly provides

that the selection for the advertised posts shall be made as per

the scheme of examination envisaged under the Rajasthan Judicial

Service Rules, 2010 (hereinafter referred to as 'the Rules of

2010'). The scheme of examination as provided under the Rules of

2010 clearly indicates that the Preliminary Examination shall be

conducted for the purpose of screening and preparing list

(category wise) of further eligible candidates being fifteen times

the number of vacancies in the respective categories. Thereupon,

at the second stage of the examination, viz., the written tests

followed by the interview shall be held. The Rules of 2010 as well

as the advertisement makes it quite clear that the marks obtained

by the candidates in the Preliminary Examination shall not be

counted/added up for the purpose of preparation of final

select/merit list.

4. The grievance of the petitioners is that they had secured

higher marks in comparison to the Ex-Serviceman- General

category candidates therefore the respondents ought to have

applied the migration formula and migrated the petitioners in the

[2024:RJ-JD:38139-DB] (3 of 6) [CW-14279/2024]

Ex-Serviceman- General category at the Preliminary Examination

stage.

5. Learned counsel for the petitioners submitted that the merit

list of Preliminary Examination published by the respondent

provides cut-off marks of various categories, viz. General, SC, ST

and OBC categories, etc. but no separate cut-off marks have been

published for the candidates belonging to the Ex-Serviceman

category. Learned counsel submitted that the acts & inaction of

the respondents in not identifying or recognizing the eligible

candidates falling under the Ex-Serviceman category by giving

separate cut-off, for the purpose of horizontal reservation

category-wise has resulted in hostile discrimination and is in

violation of the Constitutional mandate envisaged under Article 14

& Article 16 of the Constitution of India. Learned counsel further

submitted that the petitioners belong to the Ex-Serviceman- OBC/

NCL category and have obtained higher marks than the candidates

belonging to Ex-Serviceman- General category therefore the

petitioners are entitled to be placed in the merit list of Ex-

Serviceman- General category by applying the principle of

migration.

6. Per Contra, learned counsel appearing for the respondents

vehemently and fervently submitted that the petitioners who

consciously took part in the process of selection cannot be

permitted to question the advertisement or methodology adopted

by the respondents for making selection, on them having been

declared unsuccessful in the Preliminary Examination. Learned

counsel further submitted that a coordinate Division Bench of this

Court in the case of "Sunita Meena v. Rajasthan High Court &

[2024:RJ-JD:38139-DB] (4 of 6) [CW-14279/2024]

Anr.": D.B. Civil Writ Petition No.1244/2022 decided on 20th April

2022, after considering similar controversy related to Civil Judge

and Judicial Magistrate under the Rajasthan Judicial Service

examination - 2022 was pleased to hold that the purpose of the

first stage i.e. Preliminary Examination is mainly to shortlist

candidates category wise under the scheme of the rules with a

clear stipulation that the marks obtained in the Preliminary

Examination shall not be counted for the purpose of preparation of

final merit list. Therefore, at this stage of examination, rule of

migration will not apply but the same shall apply only at the time

of preparation of final merit list based on the marks obtained by

the candidates in the main/written examination and interview. It

was thus prayed that the present writ petitions may be dismissed.

7. Heard learned counsels for the parties at Bar and perused

the material available on record.

8. The Division Bench of this Court in the case of Sunita Meena

(Supra), while relying upon the decisions of this Court in various

other matters, held as under:

"32. Dealing with the similar challenge of claim of applicability of rule of migration in the matter of preparation of list of candidates for being admitted to main examination, relying upon the decision in the case of Chattar Singh (supra), Megha Sharma (supra), Dharamveer Tholia (supra) as also Garima Sharma (supra), the legal position has been re-affirmed in Kushi Ram Gurjar (supra) as below:

"Considering the view expounded by Division Benches of this Court in the above cases while placing reliance on the judgment of Hon'ble the Supreme Court in the case of Chattar Singh (supra), it is clear that the concept of vertical reservation and migration to the higher category cannot be applied in a shortlisting exercise which is provided under Rule 25 of the Rajasthan Subordinate Courts (Driver and Class IV Employees) Service Rules, 2017..........."

33. The Division Bench of this Court in the case of Khushi Ram Gurjar (supra) noticed that the judgment of this Court in the caseof Hanuman Jat (supra) has been challenged in the

[2024:RJ-JD:38139-DB] (5 of 6) [CW-14279/2024]

Supreme Court but the argument that the judgment of the High Court has been stayed by the Supreme Court was not accepted taking into consideration that an interim arrangement was made by the Supreme Court.

34. The decision of the Supreme Court in the case of Saurav Yadav (supra) has now settled the controversy with regard to principles applicable in the matter of vertical and horizontal migration while preparing merit list, that being a case specific to claim of OBC (female) securing higher marks than the last candidate appointed in general category of general (female). In the light of consistent view by this Court in series of decisions cited hereinabove, the rule of migration of reserved category candidate from his/her own category to general category to be placed in the merit list would be applicable while preparing final merit list and not when the exercise of shortlisting of candidates category wise is done at the stage of screening by way of Preliminary Examinations, as has been done in the present case. Issue whether the principle of migration would apply even at the stage of shortlisting the candidates for being admitted to main examination was neither raised nor decided in the case of Saurav Yadav (supra). Learned counsel for the petitioner could not bring to our notice any authoritative pronouncement of the Supreme Court in this regard. Therefore, we have no reason to take a different view than what has been taken in the cases of Dharamveer Tholia (supra), Hanuman Jat (supra), Megha Sharma (supra), Khushi Ram Gurjar (supra) and Garima Sharma (supra) which are the judgments rendered by taking into consideration the scheme of examination and governing rules of recruitment analogous to those applicable in the case in hand.

35. Resultantly, the petition being sans substratum is liable to be and is accordingly dismissed."

9. It is now a well settled position in law that rule of migration

under the Rules of 2010 will not have any applicability while

preparation of select list at the stage of screening through

Preliminary Examination. The rule of migration will only become

applicable at the time of preparation of final merit list based on

marks obtained by the candidates in written examination and

interview. We may also add here that the Rules of 2010 and the

advertisement dated 09th April 2024 both provide for preparation

of a select/merit list after Preliminary Examination category-wise.

The petitioners did not challenge the same before participating in

the Preliminary Examination. Hon'ble Supreme Court in the case

[2024:RJ-JD:38139-DB] (6 of 6) [CW-14279/2024]

of "Rekha Sharma v. The Rajasthan High Court, Jodhpur & Anr.":

Civil Appeal No.5051/2023 decided on 21 st August 2024 held that

the candidates after they having found that their names do not

appear in the list of successful candidates of Preliminary

Examination, could not have questioned the result on the ground

that the respondents had not declared the cut-off marks for their

categories.

10. In that view of the matter, we do not find any illegality,

perversity or infirmity in the action of the respondents in denying

migration to the petitioner in the Ex-Serviceman- General

category at the stage of Preliminary Examination itself. Both the

writ petitions are dismissed accordingly.

11. No order as to costs.

(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J

5-TarunGoyal/-