JITENDRA SINGH RAWAT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE present writ petition has been filed by the petitioner Jitendra Singh Rawat with the prayer that the respondents be directed to give him appointment on the post of Instructor, Physical Education, according to his placement in the merit list and in the alternative, it has also been prayed that the respondents may be directed to fill in 6th vacancy at Roster Point No. 29 pertaining to the other backward Classes (in short OBC) for the purpose of appointment on the post of Instructor, Physical Education thereby appointing him on the said post.

(2.) THE case of the petitioner in nut shell is that the respondents by an advertisement invited applications from eligible candidates for appointment on the post of Instructor, Physical Education in District Rajsamand against the vacancies of the year 1989-99. Last date for submitting the applications forms was 15th Sept. , 1998 and on the same day, the respondents held the selection proceedings and prepared a merit list. This merit list was consisting of 20 persons in General Category and 20 persons in OBC category, besides the candidates belonging to Scheduled Castes and Scheduled Tribes categories. THE petitioner alleged that last person in the category of general candidates was having 89. 37% marks and the petitioner who was at S. No. 6 in the category of OBC was having 91. 22% marks and hence, the petitioner was entitled to be placed in General Category at S. No. 6. However, his name was not shown in General Category because the respondents prepared a separate list for OBC category. It has also been alleged that the respondent No. 3 issued various appointment orders for the period commencing from 10. 3. 1999 to 24. 3. 1999 and during this period, appointments were given to 30 male candidates and 5 female candidates. Last candidate among them had 90. 18% marks. Accordingly, the petitioner's right to consideration for appointment has been defeated inasmuch as the respondents have mis-applied the policy of reservation thereby violating the right to equality enshrined in Article 14 and 16 of the Constitution of India. It has also been alternatively argued that the respondents have filled in 30 vacancies. Six posts out of these 30 were required to be filled in from the candidates of OBC category as per their quota of reservation whereas the respondents have filled in only five vacancies.

(3.) THE Apex Court following the ratio of India Sawhney reiterated the same law in para No. 4 of its judgment in R. K. Sabharwal (supra) in the following terms:- " When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can complete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16 (4) of the Constitution of India permits the State government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise make the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. THE prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. THE fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. "