Gopal Kumar Lohar and Others ect. etc. vs State and Others

Munishwar Nath Bhandari, J.—These writ petitions involves common question of law on same facts thus are heard and decided by this common judgment.

By these writ petitions the petitioners have prayed that while filling up the post of Teacher Gr. III in tribal areas so notified, 30% of the posts should be filled from and amongst General candidates of the same district.

The contention of the petitioners are that vide advertisement dated 30.10.2006, Rajasthan Public Service Commission invited application for filling up of the posts of Teacher Gr. III. Pursuant to the advertisement aforesaid, all the petitioners submitted applications for consideration of their candidatures. The petitioners were thereafter allowed to appear in the selection but after declaration of the result, none of the petitioners was given appointment to the post of Teacher Gr. III though all of them belongs to the tribal areas. It is contended by the petitioners that Government of India has issued a Gazette Notification on 12.02.1981 notifying certain areas of State of Rajasthan to be Schedule areas pursuant to the Vth Schedule of the Constitution. After declaration of schedule areas, by virtue of the power conferred under Schedule V to the Constitution in reference to Article 244(1) of the Constitution, Governor of the State of Rajasthan also issued Notification dated 11.03.1998 to provide that in the schedule areas, the post falling in the pay scale No. 1 to 6 and in few cases even pay scale 7, the post to be filled by way of direct recruitment would then be reserved 45% for Schedule Tribes and 5% for Schedule Caste candidates of the tribal area and remaining 50% of the post would be filled from general category.

The grievance raised by the petitioners is that though petitioners are belonging to schedule areas, however, while filling up of the post of Teacher Gr. III reservations were only extended to 45% in favour of Schedule Tribes and 5% in favour of Schedule Caste candidates whereas earlier when the post of Patwari was filled by the State Government then pursuant to the orders issued at Annex. 7 and 8 (in Writ Petition No. 5260/2007) 30% of the posts were ordered to be filled from the candidates of the tribal area itself which otherwise a reservation provided to general category candidates of the same district. The petitioners have come up with a case that similar benefit should have been allowed to them also. The ground precisely taken above is pressed on the strength of Articles 14 and 16 of the Constitution of India so as to claim parity in the public employment without discrimination.

Learned Counsel for the respondent on the other hand submits that while issuing the Notification in the Year 1981 declaring certain areas to be schedule areas and thereupon issuing the Notification on 11.03.1998, the Governor provided 45% reservation in favour of Schedule Tribes and 5% in favour of Schedule Caste but no reservation has further been provided in favour of general category candidates of the same district, therefore, the claim of the petitioners is contrary to Notification dated 11.03.1998 itself and especially when the said Notification has even not been challenged. Clarifying the position regarding recruitment of the Patwari it is submitted that pursuant to Rule 273 of the Land Revenue (Land Record) Rules, 1957, benefit of 30% reservation was extended in favour of the candidates of the same district. It is contended that under Rule 273, on recruitment through competitive examination the admission is given to the School, 10% of the vacancies are otherwise kept reserved for appointment of Class IV employee and as per the second proviso out of total number of vacancies for direct recruitments in a district, 80% of the vacancies is to be filled from the resident of the same district and it is only that 20% vacancies are kept for general candidates. For ready reference Rule 273 is quoted hereunder:

Selection of candidates for admission to the school,- (1) Selection of candidates for admission to the School shall be made by a Competitive Examination to be conducted [by the Board] in the manner given hereinunder:

Provided that 10% of the total vacancies of the posts of the patwaries shall be reserved for appointment of Class IV employees of the Land Revenue (Land Records) Department who have passed the High School Examination and are substantive Class IV Servants and who qualify in the examination to be conducted by the Collector. If suitable hands are not available, the vacancies so reserved need not be carried forward but shall be filled from other selected candidates as usual:

Provided further that out of the total number of vacancies for direct recruitment in a district, 80% of the vacancies shall be filled from candidates who are residents of the district as indicated in the certificate of secondary school examination and 20% vacancies shall be filled from general candidates. A candidate shall be required to indicate clearly the district and vacancies for which he intends to apply. If a candidate intends to apply against 20% vacancies he shall indicate the same in his application. After examination, if the said 80% vacancies reserved for residents of the district are not filled, the same may be filled from amongst the successful candidates who have passed the examination against 20% vacancies. For the purpose of filling the 20% vacancies from general candidates, selection shall be made on the basis of merit of the successful candidates who have given option against 20% vacancies.

Referring to aforesaid Rule the respondents have given justification to provide 30% reservation to the candidates of same district inasmuch as for schedule areas they have kept 45% posts reserved for Schedule Tribes and 5% for Schedule Caste candidates in view of the Notification dated 11.03.1998 and thereby 50% of the vacancies (45 + 5) are being reserved for Schedule Tribes and Schedule Caste candidates of the same district and make up the quota of 80% for the candidates of same district as provided under Second proviso to Rule 273 remaining 30% seats were reserved for general category candidates of the same district hence it was submitted that action of the respondents is in consonance to there Rules while making recruitment to the post of Patwari and in absence of similar rules for appointment on the post of Teacher Gr. III petitioners claim should not be accepted as otherwise their exist no violation of Articles 14 and 16 of the Constitution of India in view of the fact that necessary appointment in the case of recruitment of Patwaris were made in consonance to the Rule applicable. It was further contended that the post of Patwari and even Teacher Gr. III is being filled with the mode prescribed under rules for such recruitment for last many years, therefore, long existing practice in regard to those recruitments should not otherwise been interferred.

The contention of the learned Counsel appearing for the RPSC is that the petitioners have challenged the action of the respondent at the stage when they were remained unsuccessful on declaration of the result and thereby is being a belated challenge, should not be entertained by this Court.

I have considered the rival submissions of the learned Counsel for the parties and gone through the record carefully. Perusal of Article 244(1) of the Constitution of India read with Schedule V shows that the administration of Schedule area and Schedule Tribes can be undertaken as per provisions in the Constitution referred to above. In reference to the powers conferred under the Schedule V appended to the Constitution, Government of India declared certain areas of State of Rajasthan to be tribal areas. The Governor of State thereafter issued Notification dated 11.03.1998 providing reservation in favour of Schedule Tribes and Schedule Caste candidates to the extent of 45% and 5% respectively. Those reservations were provided in favour of Schedule Tribes and Schedule Caste candidates of the same district but remaining 50% of the vacancies were kept open for open category without condition for filling up the same from the candidates of the same district (local candidates). Thus, so far as the position arising out of the Notification is concerned, the claim of the petitioner to provide 30% reservation for local general categories is not supported. Now comes to the issue as to whether petitioners are entitled to claim parity with that of the post of Patwari. The thirst of the argument of the learned Counsel for the petitioner is that the Notification provides various post in the pay scale No. 1 to 6 and with some exception a post in the pay scale No. 7. According to them the exception of other post in pay scale No. 7 is not on any rational criteria however, I could not find any substance in the said argument because the pay scale for the post of Teacher Gr. III is being considered to be covered by the Notification dated 11.03.1998 and necessary reservation in favour of Schedule Tribes and Schedule Caste candidates have also been provided. Therefore, now the only issue remains for consideration is as to whether petitioners are entitled for relief claimed i.e. to fill up 30% posts of Teacher Gr. III from and amongst general category candidates of the tribal districts/areas. The look at the Notification dated 11.03.1998 does not provide any such reservation as otherwise been claimed by the petitioner now the question comes as to whether based on parity claimed by the petitioners, benefit as was given to post of Patwari can be given to the petitioner. The aforesaid issue was looked in reference to Rule 273 of Land Revenue (Land Records) Rules, 1957. Since in the case of Patwaris, a Rule itself provides reservation in favour of local candidates or the candidates of the same district to the extent of 80% thus in view of the explanation given by the learned Counsel for the respondents, the action of the Government for providing 30% reservation for local candidates while filling up the post of Patwaris becomes in consonance to Rules as otherwise explained above inasmuch as while filling up the post of Patwari in tribal areas out of 80% post to be filled from the candidates of the same district 45% posts are filed from Schedule tribes and 5% from Schedule Caste and 30% from general category candidates thus providing 30% seats to the general candidates of same district is nothing but a compliance of Rule 273 of the Rules of 1957 and similar rule is not existing for filling up the post of Teacher Gr. III, therefore, the petitioner cannot claim parity.

In my opinion parity can be claimed only when all the things are same and similar but for the reason that post of Teacher Gr. III is filled by separate set of Rules then the post of Patwaris thus parity cannot be claimed for filling up two posts more so when the set of Rules provides different procedure for filling up of the post.

In view of the above, I do not find any substance in any of the ground raised by the learned Counsel for the petitioner thus the relief prayed in the writ petition cannot be granted more so when the respondents are filling up the post of Teacher Gr. III by one and same system in regard to the tribal areas for last many years.

All the writ petitions are thus dismissed with no order as to costs.