NARESH KUMAR SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioners' grievance in the present matter is regarding extension of vertical reservation to the female though they are entitled for horizontal reservation. On account of application of vertical reservation, excess appointment has been given to the female towards reservation. Learned counsel for petitioners submits that respondent - Rajasthan Public Service Commission (for short 'the RPSC') had issued an advertisement on 30.10.2006 calling for applications for two different posts in different districts. All the petitioners are eligible and therefore made applications for their appointment on the post of Teacher Grade -III. They were allowed to appear in the selection and thereupon respondent - RPSC declared the result. Petitioners were surprised to notice that while preparing merit list of general category known as 'other category', female candidates find place in the merit list on account of their merit were not counted towards reservation meant for them. Aforesaid action of the respondents was as if they are providing social reservation to the female, which is otherwise meant for SC, ST & OBC category candidates. Social reservation to the SC, ST & OBC category candidates is vertical in nature thereby candidates find place in the merit of general category/other category are not to be counted towards reservation, but same analogy cannot been adopted for female candidates as they are entitled for horizontal reservation. The principle of horizontal reservation is to count even those candidates who find place in the general list on account of their merit and if there exists shortfall, then to make up the reserved seat meant for them, appointment only to the extent of shortfall have to be given from the female candidates left out in order of merit. The issue of horizontal reservation came up for consideration before Hon'ble Apex Court in the case of Anil Kumar Gupta & Ors. vs. State of U.P. & Ors. reported in : (1995) 5 SCC 173. Therein, issue was clarified giving out as to how horizontal reservation is to be applied. Contrary to judgment aforesaid, respondents have given reservation to female candidates and thereby around 686 female candidates have been given appointment in excess. This is on account of wrong application of reservation policy for them. Resultantly, petitioners were deprived to get appointment despite their merit position. Aforesaid issue was later on clarified by Hon'ble Apex Court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission & Ors. reported in : (2007) 8 SCC 785 and has taken same view as was taken earlier in the case of Anil Kumar Gupta (supra). Looking to aforesaid, action of respondents is held to be illegal and a direction be given for appointment to the petitioners. Even recently, Hon'ble Apex Court has decided a matter in regard to reservation for female candidates in the case of Jitendra Kumar Singh & Anr. vs. State of Uttar Pradesh & Ors. reported in : (2010) 3 SCC 119. Therein judgment in the case of Rajesh Kumar Daria has been reiterated.

(2.) Per contra, learned Additional Advocate General, Mr. S.N. Kumawat for respondents has supported the action of respondents. It is submitted that judgment in the case of Rajesh Kumar Daria (supra) was pronounced on 18.7.2007 whereas selection and declaration of result is prior to aforesaid judgment, Respondents accordingly allowed benefit of reservation to female candidates with the formula as is applicable to vertical reservation. In fact, respondent - RPSC was not inclined to apply vertical reservation to female, however, they were compelled to do so in view of the Division Bench's judgment in the case of Hari Om Aswathi & Ors. vs. Rajasthan Public Service Commission & Ors. reported in, 2000 (3) WLC (Raj.) 551. Therein, respondent - RPSC was commanded with direction not to count those female towards reservation, who fall in the merit of general candidates/other category candidates and accordingly, respondents were left with no option but not to count those female who could find place in the merit list of general category candidates on account of their own merit. On pronouncement of the judgment in the case of Rajesh Kumar Daria (supra), respondents have stopped applying formula evolved and direction given in the case of Hari Om Awasthi (supra). In the aforesaid background, their action is wholly justified more so when the Division Bench of this Court in the case of Ramzan Ali & Anr. vs. State of Rajasthan & Ors. - D.B. Civil Writ Petition No. 8637/2007 decided on 29.2.2008, allowed the same formula for providing reservation to female as was applied prior to judgment in the case of Rajesh Kumar Daria (supra). Hence, this Court may dismissed the writ petitions filed by petitioners after holding application of the judgment of Rajesh Kumar Daria (supra) to be prospective in nature.

(3.) I have considered the rival submissions of the parties and scanned the matter carefully.