Devendra Singh And Ors vs State Of Rajasthan And Ors

These writ petitions have been filed by the petitioners aggrieved against the orders dated 09.03.2017 (Annex.6 & 7), whereby promotions have been accorded to the Patwaries on the post of Inspector (Land Records) in scheduled area and postings accorded respectively.

It is, inter-alia, indicated in the writ petition that the petitioners alongwith respondents No.3 to 24 were appointed / were working as Patwaries. The seniority list as on 01.04.2016 in the TSP area of Udaipur Division was published, wherein the petitioners have been shown senior to respondents No.4 to 23.

A Notification dated 04.07.2016 was issued by the State Government under Article 24 4(1) of the Constitution of India providing for reservation in promotion for the candidates belonging to SC & ST in the scheduled areas. Pursuant to the said notification dated 04.07.2016 (Annex.4), the roster points were determined vide Notification dated 11.08.2016 (Annex.5). Whereafter, the orders impugned dated 09.03.2017 (Annex.6 & 7) were passed, whereby the promotions were accorded to respondents No.4 to 23 and posting were given to the said respondents respectively.

Learned counsel for the petitioners made submissions that a bare look at the order of promotion dated 09.03.2017 (Annex.6) would indicate that all the vacant posts have been filled up by the candidates belonging to ST only.

Further submissions have been made that all the respondents No.4 to 23, are juniors to the petitioners as per the seniority list as on 01.04.2016 (Annex.2) and therefore, the respondents were not justified in promoting the respondents No.4 to 23.

Submissions have also been made that all the vacancies have been filled up by the candidates belonging to ST, which is not justified.

It is submitted that the provision of reservation as introduced by the Notification dated 04.07.2016 (Annex.4) could only be applied to the vacancies and not to the entire cadre strength and even the roster should have been applied to the vacant posts only and therefore, the order impugned according promotions only to the ST candidates deserves to be set-aside.

Another submissions have been made that as the provision for reservation has been introduced only by notification dated 04.07.2016, the same cannot be applied to the entire cadre strength and therefore, the orders impugned deserve to be quashed and set-aside.

Learned counsel appearing for the respondents submitted that for the purpose of implementing the provision of Notification dated 04.07.2016 (Annex.4) in its letter and spirit, the promotions have been accorded to the respondents No.4 to 23.

Detail submissions have been made in para 12 of the reply indicating the entire cadre strength of Inspector (Land Revenue) in Udaipur Division at 338 posts, in which as on the date there were 93 vacancies of ST and excess General category and SC category candidates were working as per the cadre strength and therefore, the respondents were justified in according appointments in accordance with the mandate of the Notification dated 04.07.2016.

Submissions have also been made that the promotions were required to be made as per the reservation provided on the cadre strength and the submission made regarding the application of reservation to the vacancy only, has no substance. Further submissions have been made that even if the reservation has been introduced by Notification dated 04.07.2016, the same has to be applied for the entire cadre strength and not to the vacancies and therefore, the petition deserves to be dismissed.

Reliance has been placed on judgment in R.K. Sabharwal & Ors. v. State of Punjab & Ors. : (1995)2SCC 745 and State of Rajasthan & Anr. v. Chandra Shekhar Dave & Ors. : D.B. Civil Special Appeal (W) No.506/2017, decided on 10.07.2017.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The facts are not in dispute wherein the respondents No.4 to 23 are admittedly junior to the petitioners as per the seniority list dated 01.04.2016 (Annex.2). However, as the reservation has been introduced by Notification dated 04.07.2016 providing for 45% reservation for ST and 5% reservation for SC in the scheduled areas, the respondents apparently by applying the said reservation on the cadre strength issued the orders of promotions i.e. 09.03.2017 (Annex.6) and accorded posting based on the said promotion order (Annex.7) to respondents No.4 to 23 as Inspector (Land Revenue).

The principle regarding application of reservation is well settled as indicated by the Constitution Bench of Hon'ble Supreme Court in the case of R.K. Sabharwal (supra), wherein it was, inter-alia, laid down as under :-

"7. The expressions "posts" and "vacancies", often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation."

(emphasis supplied)

In view of the determination made by the Constitution Bench, providing for working out the reservation in relation to the number of posts, based on cadre strength and that concept of vacancies has no relevance in operating the percentage of reservation, the submissions made by learned counsel for the petitioners cannot be accepted.

In so far as introduction of reservation by Notification dated 04.07.2016 and its applicability to the present circumstances and the submission that same was required to be applied to the vacant positions is concerned, the said issue is also no more res integra as Division Bench in Chandra Shekhar Dave (supra), inter-alia, while dealing with a slightly different issue, wherein the dispute pertaining to reservation on the post of Principals providing for 67% and 33% reservation for Lecturers and Head Masters respectively and the submissions made were that the same did not relate to the posts (cadre strength) but to the vacancies, came to the following conclusion :-

"14. A conjoint reading of Rule 6 and Rule 9 would require the two Rules to be harmoniously interpreted and the only harmonious interpretation would be and can be that where the method of recruitment prescribed is by promotion, but the Schedule fixes quota from two different reservoirs, while effecting promotion, quota from the two reservoirs has to be adhered to.

Rule 9 under the caption 'Determination of vacancies' lays emphasis on the word 'post' and the adherence to a quota. The Schedule as amended also does not contemplate the concept of a vacancy to be filled up. It contemplates a post to be filled up.

In the decision reported as 2017(1) SCC 457 Srikant Roy & ors. V/s State of Jharkhand & ors., in para 24 the Supreme Court has observed as under:-

"24. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in-service judicial officers by promotion through limited competitive examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no posts for direct recruits existed as on 30.4.2008, the challenge to the selection process to fill up the vacancy by promotion through limited competitive examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The writ petition filed by such aspiring candidates (WP(S) No.4159 of 2008), therefore, ought to have been dismissed by the High Court."

Notwithstanding the decision of the Supreme Court contemplating three methods of appointment; direct recruitment, promotion based on seniority-cum-merit and promotion through a limited departmental competitive examination, the ratio of law laid down therein that a cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in the given cadre and that the percentage of quota has to be worked out in relation to the number of posts which form the cadre and has no relevance to the vacancy that would occur, would apply in the instant case as well."

In view of the above legal position, the challenge laid by the petitioners to the grant of promotions to ST candidates only based on the reservation introduced by Notification dated 04.07.2016 (Annex.4) cannot be countenanced.

There is no substance in the writ petitions, the same are, therefore, dismissed.