Prabhat Ranjan Sharma and Others vs RPSC and Others

Veerender Singh Siradhana, J.—In view of the urgency expressed by the learned counsel for the parties, the matter has been taken up for final adjudication at this stage with their consent.

Complaining of excess reservation accorded to the reserved category, in the process of recruitment initiated vide advertisement dated 5th December, 2011, the petitioners have instituted the instant writ application praying for the following relief(s):-

"(i) by an appropriate writ, order or direction, the action of the respondent RPSC in not clarifying the position in respect of the reservation under the advertisement dated 5th December, 2011 before examination and even before written examination for the purposes of recruitment on the post of Motor Vehicle Sub Inspector under the Rajasthan Transport Subordinate Service Rules, 1963 and further in issuing the corrigendum after written examination and even after declaration of the result notifying the post of reservation beyond prescribed quota may kindly be declared as illegal, arbitrary, unreasonable and malafide;

(ii) by an appropriate writ, order or direction, the respondents may kindly be directed to abide by the reservation and not to fill up the post beyond reservation from the reserve category consequently proceedings further afresh declaring the result of the written examination on the basis of the correct bifurcation of the post abiding Rule of Reservation in correct prospective and calling the candidates for interview on the said post and considering the candidatures of the petitioners for appointment on the post of Motor Vehicle Sub Inspector under the said advertisement dated 5th December, 2011.

(iii) Any other order which this Hon''ble Court considers expedient, just and proper in the facts and circumstances of the case may kindly be granted in favour of the petitioner; and

(iv) Cost of this writ petition may kindly be awarded in favour of the humble petitioner."

Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised herein needs to be first noticed. The Rajasthan Public Service Commission (for short, ''Commission''), issued an advertisement dated 5th December, 2011, inviting online applications from eligible candidates for appointment to 41 posts of Motor Vehicle Sub Inspector under the Rajasthan Transport Subordinate Service Rules, 1963 (hereinafter referred to as the ''Rules of 1963'', for short). It is pleaded case of the petitioners that category-wise break up of vacancies for General and Reserve Categories was not indicated in the advertisement, and the same was to be notified after ascertainment of the factual position from the administration. Being eligible, the petitioners participated in the recruitment process for which written examination was conducted on 27/28th February, 2012. A corrigendum was issued after the written examination on 11th April, 2012, indicating the category-wise break up of posts for General and Reserved Category Candidates indicating 3 posts for General Category out of 41 and rests for the Reserved Category of SC/ST/OBC. On 20th April, 2012, the Commission declared the result of the written examination indicating the petitioners to have ''qualified for interview''. Another corrigendum by the Commission followed on 27th April, 2012, indicating horizontal reservation for ex-serviceman to the extent of 4 posts out of total 41 posts. The grievance of the petitioners, is, that the respondents have accorded reservation more than the ceiling of 50%, violating the mandate of Article 14(4) of the Constitution. The action has also been assailed for being contrary to Rule 7 and 7A of the Rules of 1963.

Learned counsel for the petitioners, reiterating the pleaded facts and grounds of the writ application, asserted that reservation for the Reserved Category i.e. ST/SC/OBC, is permissible to the extent of 12%, 16% and 21%, respectively. For the break up of the posts for General Category and Reserved Category advertised, it is further urged that a bare perusal of break up of vacancies, indicating category-wise break up for Reserve and General Categories, would indicate that the State-respondents have extended reservation to the extent of 93%; which is violative of Article 14, 16 and 21 of the Constitution.

Referring to communication dated 7th December, 2011, according to the learned counsel, 11 vacancies ought to have been made available for General Category candidates out of 41 advertised. The Secretary of the respondent-Commission also addressed a communication dated 21st December, 2011, to the Transport Commissioner, Department of Transport, Rajasthan, stating that reservation beyond 50%, cannot be justified. Moreover, the vacancies, which became available on account of promotion have been wrongly included, and thus, the clarification is contrary to the materials available on record. The clarifications as detailed out by the respondents by way of additional affidavits, have been assailed for inherent contradictions in view of the admitted fact that in the advertisement, no backlog vacancies were indicated, and therefore, the explanations furnished, by application of ''replacement theory'', to fill up the vacant posts by the category to which the incumbent held the post belonged, and fell vacant on account of simultaneous and consecutive promotion; is an eyewash.

It is further contended that until and unless the total cadre position is reached vacancies arising during a particular year, shall not be so determined for each category, such that reservation of vacancies, including backlog vacancies, for SC/ST/OBC, does not exceed 50% of the total number of vacancies in that particular year; as contemplated by circular dated 16th September, 1998, issued to implement the verdict of the Hon''ble Supreme Court in the case of R.K. Sabharwal and others Vs. State of Punjab and others, AIR 1995 SC 1371 : (1995) 70 FLR 985 : (1995) 2 JT 351 : (1995) LabIC 1618 : (1995) 1 SCALE 685 : (1995) 2 SCC 745 : (1995) 2 SCR 35 : (1995) 3 SLJ 227 . The theory of ''replacement'', as contemplated under clause (2) of the circular dated 16th September, 1998, is not attracted.

In response to the notice of the writ application, the respondents have filed their counter-affidavits as well as additional affidavits detailing out the reasons in the backdrop of the litigation with reference to the advertisement issued on 1st October, 2001, and its ultimate adjudication by the Hon''ble Apex Court of the land vide judgment and order dated 25th August, 2011, inter-alia directing the Commission/State Government to complete the process of selection within a period of next four months, and till then, allowed the candidates to be continued in service, leading to issuance of advertisement dated 5th December, 2011 (Annexure-1), which is subject matter of the present writ application, notifying 41 posts of Motor Vehicle Sub Inspector to be filled up by direct recruitment.

Mr. S.K. Gupta, learned Additional Advocate General, for the State-respondents, made a statement at Bar that there has been no violation of the ceiling limit of 50% as declared by the Hon''ble Apex Court of the land. Further, out of total cadre strength of 264 posts of Motor Vehicle Sub Inspector, 198 posts are to be filled up by direct recruitment, and 25% by way of promotion, ratio being 75:25. Out of 198 posts, 41 posts are of OBC Category and 25 selected candidates were already in place, in addition to 7 other candidates, who were selected on their own merit, and were not counted against the OBC Quota. Out of 25 OBC candidates, 3 persons were appointed through direct recruitment on compassionate grounds under the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 and 2 persons were working under the orders of the Court.

It is further pleaded that a requisition for direct recruitment for appointment to 66 posts, was issued by the Commission on 26th July, 2008, wherein 56 posts were indicated for General Category, 1 for Scheduled Caste, Nil for Scheduled Tribe and 9 for OBC Category. Thus, upto the year 2011, 25 posts were already filled up and 9 posts were in the process of recruitment in view of advertisement dated 26th July, 2008. On account of delay in the recruitment process of the year 2008, 7 posts of Motor Vehicle Sub Inspector for direct recruitment, in OBC Category, fell vacant.

The Hon''ble Supreme Court while adjudicating upon on the litigation with reference to the Recruitment Process of 2001; quashed the appointment of 7 Motor Vehicle Sub Inspectors, selected by the direct recruitment, which included 1 post of OBC Category. Thus, in all 8 posts (7+1) of Motor Vehicle Sub Inspector in OBC Category became available for direct recruitment. As a consequence, in the recruitment process initiated in the year 2011, taking note of the total number of 41 vacancies reserved for OBC Category, 8 posts have been advertised, and thus, the action of the respondents cannot be faulted.

Mr. S.N. Kumawant, learned counsel appearing on behalf of the respondent-Commission, reiterating the stand of the State Government, further submits that Article 16(4B) of the Constitution has been inserted by way of amendment on 9th June, 2000, and therefore, averments made by the learned counsel for the petitioners referring to and relying upon the circular dated 16th September, 1998, are absolutely misconceived and misleading. Moreover, the action of the respondents is perfectly legal and valid as well as in consonance with the law declared by the Constitution Bench of the Hon''ble Supreme Court in the case of R.K. Sabharwal (supra), wherein it has been held that vacancy/vacancies occurring for direct recruitment, promotion etc., shall be filled up by appointing person(s) belonging to the category of which the promotee, retired person(s) belonged. Thus, after the cadre position is once filled up, the replacement rule will apply and the roster will stop. Learned counsel further submits that Article 16(4B) of the Constitution was inserted by the Constitution (Eighty-first Amendment) Act, 2000; with effect from 9th June, 2000, which contemplates that any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A), as a separate class of vacancies, shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. Thus, the claim of the petitioners in the writ application is absolutely misconceived and misleading. Moreover, the petitioners after having unsuccessfully participated in the recruitment process in pursuance to the advertisement dated 5th December, 2011, are precluded from assailing the recruitment process and/or the criteria stipulated therein.

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

Indisputably, the petitioners did participate in the recruitment process initiated vide advertisement dated 5th December, 2011 (Annexure-11). Though, there was no category-wise break up of 41 posts, for which online applications were invited from the eligible candidates, however, a specific stipulation thereunder indicated in no uncertain terms that the position of reservation would be notified after ascertainment of the correct position from the administration and as a consequence, corrigendum dated 11th April, 2012 (Annexure 4), was published detailing out category-wise break up of the vacancies to be filled up from General Category and Reserved Category Candidates, which indicated 3 vacancies for General Category. 14 vacancies were indicated for Scheduled Caste Category; 15 vacancies were indicated for Scheduled Tribe Category, 8 vacancies were indicated as Reserved for OBC Category, and 1 vacancy for TSP. By another corrigendum dated 27th April, 2012 (Annexure-8), horizontal reservation for ex-servicemen to the extent of 4 vacancies, was also indicated.

A bare glance of additional affidavit dated 10th April, 2013, filed on behalf of the Commission, would reveal that out of the total cadre strength of 264 of Motor Vehicle Sub Inspector; 198 posts are meant for direct recruitment, and out of which, 41 posts are reserved for OBC Category. Out of 41 posts for OBC Category, 25 candidates were already selected other than 7, who were selected in Open General Merit and were not counted against the OBC Quota. A composite list of 25 persons and 7, along with necessary details of the selection, has been placed on record as Annexure-AAA/1 and AAA/2, respectively.

In the year 2008, the recruitment process was initiated by the Commission vide notification dated 26th July, 2008, inviting applications from the eligible candidates for recruitment to 66 posts of Motor Vehicle Sub Inspectors, wherein 9 posts were reserved for OBC Category. The advertisement indicated 56 vacancies for General Category out of 66, which reflects that reservation was accorded with reference to the cadre strength. No post was reserved for Scheduled Tribe Category whereas the advertisement indicated 1 post reserved for Scheduled Caste Category.

At this juncture, it will be gainful to consider the text of Article 16(4B) of the Constitution, which reads thus:

"16(4B). Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."

A glance of text of Article 16(4B) of the Constitution, as inserted by Eighty-first Amendment with effect from 9th June, 2000, would reveal that the State is not prevented from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies, shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

From the facts, circumstances, and materials available on record, it is evident that the respondents have not accorded reservation to the Reserved Categories in excess of ceiling limit of 50%. The petitioners have failed to lay any factual foundation to sustain the inference as proposed for reservation accorded to the Reserved Categories in excess of ceiling limit of 50%, thereby violating the mandate of Article 14, 16 and 21 of the Constitution.

In the advertisement, there is no indication of backlog vacancies, but the vacancies were available on account of simultaneous/consecutive promotion. The process of recruitment initiated to fill up the total vacant posts by applying the theory of ''replacement'' according to the Category to which vacancy/post belongs, cannot be faulted in view of the mandate of Article 16(4B) of the Constitution as well as in view of clause (2) of circular dated 16th September, 1998, which reads thus:

"2. Once the total cadre position by this method is reached i.e. appointments of the candidates belonging to OBC/SC/ST have been made according to the prescribed percentages, namely, 21%, 16% and 12% respectively for OBC/SC/ST in the matter of Direct Recruitment and 16% and 12% for SC and ST respectively in the matter of Promotion have been made, thereafter, the vacancy/vacancies occurring by retirement, promotion etc. shall be filled up by appointing person(s) belonging to the category of which the promotee, retired person(s) was/were belonging, that is after the cadre position is once filled up the replacement rule will apply and the roster will stop."

For the reasons and discussions herein above, it is evident that the State-respondents have maintained the percentage of reservation prescribed for the respective Categories, and have not violated the ceiling limit of 50%, as is complained of by the petitioners.

The writ application filed by the petitioners, is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

In view of the final adjudication on the writ application, the stay application stands closed and the interim orders, granted by this Court, stand vacated.

However, in the facts and circumstances of the case, there shall be no order as to costs.