KAVITA CHOUDHARY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN the present writ petition, the petitioner applied for appointment on the post of Physical Teacher Grade III pursuant to the advertisement dated 28th July, 2003. He is a candidate belonging to Other Backward Classes (O. B. C. ). He secured 76. 76% marks as per the merit list prepared by the respondents. According to the petitioner benefit of reservation is provided to candidates belonging to reserved category in order to avoid their competition with general candidates. Only if they are not able to come in the merit against open and unreserved seats, they can be considered for appointment according to their merit placement in particular reserved category. The respondents by misapplying the law governing implementation of rule of reservation have appointed candidates with lesser merit than the petitioner in open category. As against the petitioner's merit of 76. 76%, the respondents have appointed one Ms. Durgesh Nandini in the general category having 76. 34% marks and another Ms. Upasna Parihar with only having 76. 43% marks. It has therefore been prayed that the respondents be directed to prepare merit list of the candidates for appointment on the post of Physical Teacher Grade-III by considering all the candidates including the candidates belonging to reserved categories against the unserved posts of Physical Teacher Grade III and if any of the reserved category candidates ranks higher in such merit list then his/her selection should be counted against the general/unreserved posts of Physical Teacher Grade III. The respondents should thereafter prepare separate merit list of different reserved categories. It has further been prayed that the respondents may be directed to consider and appoint the petitioner on the post of Physical Teacher Grade III as per her merit either as general category candidate or as an OBC category candidate on the basis of her merit and if necessary even by terminating services of the respondent No. 4.

(2.) THE respondents have contested the writ petition and filed reply thereto. In the reply, it has been contended that no candidate having lesser marks than the petitioner in OBC category has been appointed. So far as Ms. Durgesh Nandani and Ms. Upasana Parihar are concerned, both these candidates in their application forms applied against the quota of general category whereas the petitioner had applied against the reserved post of OBC category. According to the respondents, had the petitioner applied against the posts meant for general category, she too would have been considered for appointment against posts of general category. Last candidate who has been given appointment in OBC category has secured 79. 67% marks whereas the petitioner's merit was assessed at only 76. 76%.

(3.) THIS very view was later reiterated again by Hon'ble Supreme Court in Ritesh R. Sah vs. Dr. Y. L. Yamul reported in AIR 1996 SC 1378. In para No. 17 of the judgment, their Lordships held as under:- " In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will to work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved category candidate. "