Sunil @APPELLANT@Hash State of Rajasthan & Ors

Consented by the counsel for the parties, the batch of writ applications has been taken up together, at this stage, for final disposal by this common

order, in view of the identicalness of questions of facts and law raised.

Shorn off unnecessary details, the essential skeletal material facts are: that the State-respondents vide advertisement dated 13th April, 2018, invited

applications from eligible candidates for appointment to the post of ‘Safai Karamchari’, withdrawing the earlier advertisement dated 25th May,

2012 and 31st May, 2012, to the extent of appointments not made, even after completion of selection process. However, the candidature of the

participating candidates of recruitment of 2012, was to be considered in the new selection process initiated vide advertisement dated 13th April, 2018,

allowing relaxation of age. The above noted writ applications have been instituted assailing the recruitment process initiated vide advertisement dated

13th April, 2018, on various grounds. In view of the pleadings of the parties; the controversy projected in the writ applications can, broadly, be

classified into five issues, which needs adjudication by this Court. The five issues that emerge for adjudication are:

(A) whether the procedure for direct recruitment on the basis ofLottery system, is valid and legal ?

(B) whether the vacancies year-marked for reserved categoryafter having been filled up, the candidates of reserved category could be considered

against Open/General category vacancies ?

(C) whether the left over vacancies of the selection process ofyear 2012, to the extent where appointments could not be made, could be withdrawn

and included in the selection process of year 2018 ?. and;

(D) whether the manual scavengers were/are not entitled for preference in the selection process ?.

In order to appreciate the controversy on the issues aforesaid; it will be profitable to take note of the singular factual matrix and circumstances of

the case at hand, wherein recruitment to the post of ‘Safai Karamchari’, could not be made for a long time since 1992.

(i) A Coordinate Bench of this Court, while adjudicating upon SBCWP No.1177/1992: Sushila Vs. State of Rajasthan & Ors. along with analogous

matters, decided on 21st October, 1992, in the backdrop of claim of the petitioners therein for regularization and challenge to termination of their

employment; while issuing the directions, made an order for selection on the basis of lottery system, relying upon earlier opinion of this court in the

case of Rajasthan Dainik Vetan Bhogi Anshkalin Safai Mazdoor Sangathan and Ors. Vs. State of Rajasthan and Ors.-(90): 1992 (2) RLR 516,

wherein it was observed that where no minimum qualification is required at all and all uneducated persons are eligible than the appointment in such a

case could only be properly made by lottery system.

(ii) On 13 January, 2003, a circular was issued for selection on the basis of lottery. Be that as it may, in SBCWP No. 12234/2009, a Co-ordinate

Bench of this Court stayed the appointment on the post of sweeper in favour of those who had worked for less than 240 days.

(iii) In the case of Shankar and Ors. Vs. State of Rajasthan and Ors.: SBCWP No. 10715/2009, the circular dated 13th January, 2003, providing

appointment by lottery system was depricated unless the statutory rules provided for such a procedure, and therefore, directed the respondents not to

continue the process under the aforesaid circular.

It was in the aforesaid background, the recruitment process was initiated afresh vide advertisement No. 1/2012 dated 25th May, 2012, and

advertisement No. 2/2012 dated 31st May, 2012; for recruitment on the post of 'Safai Karamcharies'. The vacancies initially advertised were

subsequently increased. On 3rd May, 2013, the State Respondents decided to fill up 20,000 posts from amongst open category and Scheduled Caste

candidates, in the first phase. On 23rd Januray, 2014, the Rajasthan Municipalities (Safai Employees Service) Rules, 2012, (for short, 'the Rules of

2012'), were amended by introduction of a provision for selection by way of lottery system.

The process of selection in the first phase from open category and Scheduled Caste candidates became subject of challenge in several writ

applications. Vide order dated 19th Januray, 2016, this Court declared the bifurcation of two categories for recruitment in the first phase, as illegal and

unconstitutional. The State-respondents were also restrained from providing any reservation of posts to 'Valmiki' and 'Hela' Socities, in the name of

preference. It was further declared that appointment by lottery system introduced vide amendment dated 23rd January, 2014, could not be applied

to recruitment process initiated vide advertisement dated 25th May, 2012, for ""rules of game cannot be changed in the midst"". Hence, selection made

through lottery system in the year 2012, was declared illegal.

A Division Bench of this Court in the case of Amit Gujarati and ors. Vs. State of Rajasthan and ors:DBCWP No.14059/2015, vide order dated 19th

May, 2016, oberved that the recruitment process initiated vide advertisement dated 25th May, 2012, applying amneded provision made on 23rd

January, 2014, was illegal, and therefore, directed the Municipal Corporation, Jaipur, to proceed with the recruitment process according to the Rules in

vogue on the date of advertisement, if the recruitment process was required to be proceeded further. However, on 19th December, 2017, a

Coordinate Bench of this Court in the case of Lalit Kumar & Ors. Vs. Principal Secretary to the Govt. and Ors.:SBCWP No.11914/2015, in the

backdrop of observations made by the Division Bench in the case of Amit Gujarati and ors. (supra), keeping in view the dearth of ""Safai

Karamcharies, all the Municipal Corporations were directed to proceed with appointment in terms of selection already made under the advertisement

dated 25th May, 2012, forthwith.

On the other hand, selections made in some of the municipalities were faulted for serious irregularities and in some cases such selections were

cancelled. In case of district Ajmer, wherein writ application(s) were instituted assailing the cancellation, were dismissed. However, in intra-court

appeals preferred, it surfaced that in some cases appointments were made on the basis of wrong/fake/forged experience certificates. However, for

that the entire selection process would not have been cancelled, hence, it was directed to complete the selection process within a period of two months

by proper scrutiny of the documents/certificates, separating the tainted from untainted. If sufficient number of eligible candidates were not available;

an advertisement was required to be issued afresh immediately. In the meanwhile, Rules of 2012, were amended on 11th April, 2011.

It the backdrop of factual matrix and background aforesaid; the State-respondents issued advertisement dated 13th April, 2018, for recruitment of

'Safai Karamchari' urgently withdrawing the unfilled vacancies for which the recruitment process was initiated vide advertisement dated 25th and 31st

May, 2012, and appointments could not be made even after conclusion of selection process. However, the applicants of recruitment process of 2012,

are to be considered in the selection process involved herein, without submission of application forms afresh, and with relaxation of age.

The recruitment process involved herein also became subject matter of challenge in DBCWP No. 13187/2018: Akhil Bhartiya Valmiki Samaj

Arakshan Samajik Shodh and Vikas Samiti Vs. The State of Rajasthan and Ors., assailing the legality and validity of the Notification dated 23rd

Januray, 2014, amending Rule 9 of the Rules, 2012, by induction of lottery system as one of the creterion for recruitment. The writ application has

been dismissed on 13th July, 2018, upholding the legality and validity of the Notification dated 23rd Januray, 2014.

In the face of adjudication by the Division Bench in the case of Akhil Bhartiya Valmiki Samaj Arakshan Samajik Shodh and Vikas Samiti

(supra), learned counsel for the petitioners gave up the plea of challenge to the recruitment process applying the criteria of lottery system. Thus, the

issue of lottery system, as a criterion applied in the recruitment process, stands resolved and needs no further consideration.

Mr. Ajat Shatru Mina, learned counsel appearing on behalf of the petitioner(s) in writ application No. 12077/2018, on the issue of inclusion of the

reserved category candidates in the open/General Category, who availed of the concession of relaxation in age; vehemently argued that such

candidates cannot be included in the open category for they having availed the concession/relaxation in age. Relying upon the circular dated 26th

July, 2017, issued by the Government of Rajasthan, Department of Personnel; learned counsel asserted that only the candiadate belonging to the

SC/ST/OBC, who have not availed of any of special concession(s), such as relaxation in age limit and qualified physical fitness etc., in theÂ

recruitment process, are only entitled to be selected in the unreserved/open category for having secured more marks than the last candidate of the

unreserved/open/General category. In order to reinforce his stand, learned counsel relied on opinion in the case of Gaurav Pradhan and Ors. Vs. State

of Rajasthan and Ors.; Civil Appeal No. 8351/2017, decided on 18th August, 2017.

Mr. Mukesh Kumar Agarwal, learned counsel appearing on behalf of the petitioners, in addition, urged that the relaxation of age clause, was not

included in the advertisement No. 1/2018 and 2/2018, and therefore, amendment in the terms and conditions by corrigendum dated 24th April, 2018,

would amount to ""change of rules of game in the midest"". Hence, the participating candidates, who are not within the maximum age limit of 35 years

as on 1st Januray, 2019, are not entitled for consideration of their candidature in the recruitment process involved herein.

Learned counsel for the petitioners insistingly argued that once a recruitment process was initiated and concluded vide advertisement dated 25th

and 31st May, 2012 and names of the candidates found place in the select list; denial of appointment to such candidates, is illegal, arbitrary and

violative of Article 14 and 16 of the Constitution of India. According to the learned counsel, the select list drawn as consequence of recruitment

process initiated and concluded pursuant to recruitment process of 25th and 31st May, 2012, cannot be withdrawn. Further, the Staterespondents

operated the same select list and accorded appointment to some of the successful candidates, whose names were included in the same select list.

Hence, denial of appointment to the petitioners, who too were included in the same select list, is in flagrant violation of Article 14 and 16 of the

Constitution of India.

With reference to the recruitment process in district Ajmer, wherein a list of 182 candidates, was drawn consequent upon their selection to the

post of 'Safai Karamchari' by way of interview and on the basis of experience, the State-respondents were required to complete the recruitment

process by scrutiny of the experience certificate separating the tainted and untained candidates. For some of the candidates indulged in fraud; the

eligible and untained candidates cannot be penalised. Hence, the respondents were required to complete the recruitment process of 2012 and the

same cannot be withdrawn. Reliance has also placed in the case of the Supreme Court in the case of Union of India and ors. Vs. Rajesh P.U.

Puthuvainikathu and anr.: AIR 2003 SC 4222, to reinforce the stand.

Per contra: Mr. Rajendra Prasad, learned Additional Advocate General appearing on behalf of the State-respondents, highlighting the factual

matrix and background of long drawn litigation that continued since the year 1992, resulting into delay and uncertainty, in the circumstances aforesaid,

the Staterespondents could not conclude the recruitment processes. Further, the recruitment processes became subject matter of litigation leading to

issuance of directions from time to time on the issue of lottery system and for other reasons as well. Referring to directions issued by a Coordinate

Bench of this Court in the case of Sushila Vs. State of Rajasthan & Ors. (supra), it is urged that the State-respondents were required to verify the

actual vacancies existing, against which, the daily-wagers and casual workers could be adjusted. Further, a Scheme was also required to be framed

for absorption in a fair and just manner, having regard to the length of service and other relevant conditions, including observations made by this Court.

Reference has also been made to an interim order dated 23rd September, 2009, by a Coordinate Bench of this Court in the case of Bablu & Ors.

Vs. Jaipur Municipal Corporation & Ors.: SBCWP No.12234/2009, wherein the process initiated for issuance of appointment orders on the post of

Sweeper, in favour of those, who had worked for less than 240 days; was stayed. Further, where no minimum qualification is required, at all, and all

uneducated persons are eligible than the appointment in such a case could only be properly made by lottery system, as has been observed by this

Court in the case of Rajasthan Dainik Vetan Bhogi Anshkalin Safai Mazdoor Sangathan and Ors. Vs. State of Rajasthan and Ors.-(90): 1992 (2)

RLR 516. Accordingly, when the recruitment process was initiated and concluded applying the criteria of lottery system in the year 2012; the same

was faulted for there was no provision to that effect under the Rules of 2012.

Mr. Rajendra Prasad, learned Additional Advocate General, further urged that a Division Bench of this Court while setting aside the letter/order

dated 11th July, 2014 and the opinion of the learned Single Judge dated 5th May, 2017; in the case of Mahendra Sangat and ors. Vs. State of Raj. And

ors.:DBSAW No.779/2017, decided on 13th March, 2018, directed the Municipal Corporation, Ajmer, to proceed further with the same selection

process by scrutiny of the forged/fake experience certificate, submitted by the participating candidates, thereby separating the tainted from untainted,

so as to effectively maintain cleanliness rather than to be dependent on the contractors. Thus, the Staterespondents have proceeded with recruitment

process from time to time, in accordance with law and directions issued by this Court on the writ applications instituted.

According to the learned Additional Advocate General, the recruitment process of 2012, has been rightly withdrawn to the extent of appointments

were not made, including the candidates who were included in the select list for the recruitment process declared as illegal by this Court in view of the

fact that there was no provision under the Rules of 2012, permitting the Staterespondents for recruitment by lottery system. Hence, the claim of the

petitioners on that count, cannot be sustained. And this issue is no more res-integra in view of the law declared by the Apex Court of the land in the

case of Babita Prasad and ors. Vs. State of Bihar and ors: 1993 Supp(3) SCC 268, The State of Haryana Vs. Subash Chander Marwaha and ors.:

(1974) 3 SCC 220 and Shankarsan Dash Vs. Union of India (UOI): (1991) 3 SCC 47, wherein the Supreme Court in no uncertain terms held that

some candidates selected in special circumstances, that cannot became a claim for every candidate even if some vacancies were available. Further,

appointed and non-appointed forms separate class and there is no duty imposed on the Government to appoint all persons.

Learned Additional Advocate General further added that the mere fact of availing of age relaxation would not defeat the requirement to such

category candidates being migrated to open category for the simple reason that the criteria for selection in the recruitment process involved herein is

on lottary basis and not on merits. Hence, the opinion of the Apex Court of the land as referred to and relied upon while assailing this action of the

Staterespondents, is absolutely misconcieved for the factual matrix of the case at hand is entirely different and distinguishable.

I have heard the learned counsel for the parties and with their assistance perused the material available on record so also gave my thoughtful

consideration to the rival submissions at Bar.

ISSUE :(A) whether the procedure for direct recruitment on the basis of Lottery system, is valid and legal ?

The issue as to legality and validity of appointment on the post of ""Safai Karamchari"" on the basis of lottery system, may not detain this Court for

long in view of the admitted fact that the controversy fell for consideration before the Division Bench in the case of Akhil Bhartiya Valmiki Samaj

Arakshan Samajik Shodh and Vikas Samiti (supra), and stands resolved in view of the judgment dated 13th July, 2018, observing thus:

Taking into consideration facts of this case, we do not find that method of selection by lottery is illegal. The judgment of the (11 of 12) [CW-

13187/2018] Karnataka High Court in the case of Shri B.P. Nagaraju Gowda (supra) does not apply to the facts of this case. Learned counsel for

petitioner has raised question about fairness in the system of lottery. It has been submitted that manipulations can be made even in lottery. We have

given our serious consideration on the aforesaid issue thus called for the record to find out as to how lottery has been drawn. The record shows that a

software was prepared by engaging an independent firm.

The aforesaid software was then sent for audit to find out as to whether it is full-proof or not. After getting audit report, further process was

undertaken by involving the Information and Technology Department, State of Rajasthan. Thus in the process of lottery, the Municipal Councils were

not directly involved, rather, they got the software prepared from an independent firm followed by an audit report and lastly, it involved an independent

Department of State of Rajasthan namely, Information and Technology. The petitioner has not brought on record any fact which may question the

independence of the system in drawing lottery thus the issue about fairness in drawing lottery system remains for the sake of it. Learned counsel for

petitioner has even made reference of the previous judgment of this court in the case of Sushila (supra), whereby, an order was passed for making

selection on the basis of lottery. The judgment aforesaid was given when fairness in selection by other modes was questioned. To overcome with the

difficulty and to have fairness in the selection, the direction to hold selection by evolving method of lottery was given. The respondents, thereafter,

adopted the said method for many years. It was stopped when a writ petition was filed to question the mode (12 of 12) [CW13187/2018] of selection

by lottery. This court caused interference for the reason that rules were not providing mode of selection by lottery. The respondents thus made an

amendment to continue old system, as was directed earlier by this court in the case of Sushila (supra). In view of the above, the judgment holding

recruitment through lottery to be illegal was in given facts and circumstances. At that time, the rule was not providing mode of recruitment by way of

lottery. In view of the discussion made above, we do not find any ground to cause interference in the amendment made by Notification impugned

herein. The writ petition is thus dismissed.

ISSUE:(B) whether the vacancies year-marked for reserved category after having been filled up, the candidates of reserved category could be

considered against Open/General category vacancies ?

Indisputably, reservation for the participating candidates has been devided thus:

(a) 16% for Schedule Caste

(b) 12% for Schedule Tribe Caste

(c) 21% for Other Backward Caste

(d) 01% for Special Backward Caste

(e) 50% for General Category

It is also not disputed that instructions on reservation issued, specifically contemplated that the seats reserved for SC/ST/OBC are required to be

filled up from the respective category. Consideration of reserved category candidates against the open/General category is resisted, referrering to

Notification dated 26th July, 2017, which contemplates counting of SC/ST/OBC candidates, against unreserved/open seats, only in the event the

candidate has not availed of any special concession such as agelimit, marks, payment of examination fee, etc. In support of the plea, reference is

made to the opinion of a Coordinate Bench of this Court in the case of Swaroop Kumar Acharya Vs. State:SBCWP No.7371/2014, decided on 9th

May, 2017, observing thus:

No explanation, rational or the object behind joining together both the categories is forthcoming. The very method of joining both the categories

together while drawing lottery and thus depriving the petitioners for appointment by putting them up in a disadvantageous position vis-a-vis the

Scheduled Caste category (SC) is unfair and in this manner is not only arbitrary but also discriminatory. The same is not supported by Rule, Order of

Regulation. It has caused prejudice to the petitioners. The selection of the petitioners which was certain in view of the candidates being less than the

number of posts was not only nullified but the petitioners were deprived of their rightful claim under the General category for which the posts were

kept separately to be filled from the said category. Adopting the procedure of filing up the posts by a lottery system is one thing and violating the

clause in the advertisement vide which a fixed number of posts were kept for each respective category in spite of the availability of the candidates in

the said category is another. While filling up the posts through lottery system, the respondents could not have reduced or increased the number of

posts to be filled under the respective category.

Reference has also been made to the opinion of the Apex Court of the land in the case of Indira Sawhney vs. Union of India: 1997 Suppp (3) SCC

217, wherein the Supreme Court, observed thus:

In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that

some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted

against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.

Selection must be made on the basis of merit alone, is another plea emphasized relying upon the opinion of the Supreme Court in the case of Dr.

Pradeep Kumar Jain Vs. Union of India: 1984 (3) SCC 654, referring to text, which reads thus:

But let us understand what we mean when we say that selection for admission to medical colleges must be based on merit. What is merit which must

govern the process of selection ?

It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite

capacity for hard work, but that is not enough ; it also calls for a sense of social commitment and dedication to the cause of the poor.

We agree with Krishna Iyer, J. when he says in Jagdish Saran's case (supra) : ""If potential for rural service or aptitude for rendering medical attention

among backward people is a criterion of merit-and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears-then, surely,

belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious

in the case of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in

freak cases."" Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the

head in assessing the social, value of a member of he medical profession. This is also an aspect which may, to the limited extent possible, be home in

mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a

factor which is extremely difficult to judge and not easily susceptible to evaluation.

Instructions issued by the Government can be binding only if they are not in violation of provisions of an Act or Rule, is another ground of

assailment, harping upon the opinion of the Supreme Court in the case of State of Uttar Pradesh Vs. Chandra Mohan Nigam and Union of India Vs.

Chandra Mohan Nigam: 1977 (4) SCC 345, wherein the Apex Court of the land, observed thus:

Instructions issued by the Government are binding on the Government it, it they do not violate the provisions of an Act or Rule and cannot be violated

to the prejudice of the Government servant. In that case, their Lordships of the Supreme Court held that the instructions wre really meant to fill up 'the

yawning gaps' in the provisions and these observations are equally applicable to the facts of the present case. As rule 28 is absolutely silent about the

determination of inter-se seniority of persons recruited by the new source intrdoduced by the proviso 2(1) of Rule 7, the State Government rightly

issued instructions, by the circular dated October 8, 1969, providing the method in which the seniority, amongst L.D. Cs. Recruited by the three

different modes, was to be determined. As a matter of act, the privisions of the circular are in conformity with and supplement the provisions of rule

28 and are not in derogation thereof"".

Citing the opinion of the Supreme Court in the case Gaurav Pradhan and Ors. (supra), it is contended that the candidates belonging to

SC/ST/OBC, who had availed of concession of relaxation of age, are not entitled for migration to the unreserved/open vacancies. At this juncture, it

will be profitable to take note of the text of para No.47 and 48, of the opinion, which reads thus:

We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing

relaxation of age belonging to reserved category-candidates who find place in merit list of the general/open category has to be treated to be included in

the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.

In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age

were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age

against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the

unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging

to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We,

however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the

unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration

against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in

reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates

who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by

this Court.

It is also not disputed that in some of the Municipalities, where the recruitment process was initiated and result has been declared, the participating

candidates belonging to the SC/ST/OBC categories, who availed of concession of relaxation of age, have been migrated to Open/General/unreserved

category and have also been accorded appointment where there was no stay order operating. Such an action is sought to be justified on the plea that

the judgments referred to and relied upon by the petitioners for exclusion of such candidates from Open/Unreserved/General category, are the

opinions wherein the selection was based on merit. In the instant case at hand, merit is not the criteria but lottery system is the basis for

selection/appointment; hence, to provide same level playing field, such a relaxation in favour of SC/ST/OBC candidates, is justified. The reasons

putforth by the learned Additional Advocate General, Mr. Rajendra Prasad, to justify migration of such candidates of reserved category, who have

availed of relaxation of age in the recruitment process involved herein for the post 'Safai Karamchari'; has some substance.

In the case of Swaroop Kumar Acharya (supra), the Coordinate Bench of this Court, at Principal Seat, Jodhpur, dealt with the issue of clubbing

the vacancies of general/Open category with that of reserved category for Schedule Caste. Hence, the opinion is of no help to the petitioners for being

clearly distinguishable on facts.

The opinions of the Apex Court of the land, which has been referred to and relied upon in support of the plea aforesaid, are the cases wherein

merit was the criteria for selection/appointment. In the instant case at hand, the criteria for selection/appointment is lottery system. Hence, the mere

fact of age relaxation availed of by the participating candidates belonging to SC/ST/OBC category, who are otherwise found eligible for appointment,

are required to be migrated to the open/general category. Such a course adopted by the State-respondents in the recruitment process involved herein,

cannot be faulted.

Accordingly, I find no illegality/error in the action of the State-respondents, in migrating the participating candidates of the SC/ST/OBC category

who availed of benefit of age relaxation, if they are/were otherwise found suitable for appointment to the post of 'Safai Karamchari'. Issue: B, is

answered, accordingly.

ISSUE: (C) whether the left over vacancies of the selection process of year 2012, to the extent where appointments could not be made, could be

withdrawn and included in the selection process of year 2018 ?.

A Coordinate Bench of this Court in the case of Rajasthan Dainik Vetan Bhogi Anshkalin Safai Mazdoor Sangathan and Ors. (supra), repelling

the assailment to the process of appointment by way of lottery system, found no illegality while examining the matter in the backdrop of Rule 7, 8, 9

and 10 of the Rajasthan Municipalities (Class-IV Service) Rules, 1964. And in the subsequent case of Sushila (supra), relying upon the opinion in

the case of Rajasthan Dainik Vetan Bhogi Anshkalin Safai

Mazdoor Sangathan and Ors. Vs. State of Rajasthan and Ors.-(90), so also on the opinion of the Apex Court of the land in the case of State of

Haryana and Ors.Vs. Piara Singh and Ors.: 1992 (4) SCC 118, while disposing off the writ applications, made the following directions:

Advertisement should be issued in the two local newspapers (Hindi) advertising the post and in the advertisement itself the proforma for application

shall be given so that the question of obtaining any application from from the respondents or from the union is eleminated;

The said advertisement shall also be posted on the notice board of all the four zones as well as the Head Office of the Jaipur Municipal Council.

The advertisement shall require that the application has to be accompanied with a demand draf of Rs.5/- or Rs.10/- of any Bank:

No directions were issued for regularization of services of those, who were engaged on adhoc/temporary/daily wages basis in the backdrop of

opinion of the Supreme Court in the case of State of Haryana and Ors.Vs. Piara Singh and Ors.: 1992 (4) SCC 118.

In the case of Shankar and Ors.(supra), another Coordinate Bench of this Court while dealing with the issue of appointment by lottery system on

the post of Sweeper, held thus:

So far as the issue regarding the appointment on the post of Sweeper to those candidates who are unable to undertake sweeping work and at the

same time depriving those who are traditionally working and doing sweeping work like caste people of Balmiki etc. is concerned, neither rules

permit the aforesaid nor the Constitution. The social reservation for ST/SC/OBC has been provided by the respondents and all the posts of Sweeper

cannot earmarked for one caste on account of alleged traditional work. Hence, the aforesaid argument is also of no consequence.

So far as the last issue raised by learned counsel for petitioner is concerned, i.e. as to whether appointment can be by lottery system and that too

when rule does not provide the same.

I have considered aforesaid and find that so far as appointment by evolving the system of lottery is concerned, it is in the light of the judgment of this

Court in the case of Sushila (supra), but then one cannot lose sight of the fact that the judgment aforesaid was not to command the respondents to

make appointment on the post of Sweeper by drawing the lottery for all times to come. In fact, procedure given therein was in the peculiar facts and

circumstances and not for evolving mechanism of appointment. It was a method given to see that person already worked for substantial period be

given preference in regularization, but it seems that respondents have taken the aforesaid to be a procedure for appointment. The aforesaid is even

reflected in the circular dated 13.01.2003 itself. The appointment of the post has to be made as per rules and not as per the convenience coming out

from the circular dated 13.01.2003. For appointment, order of perference has been given to earlier employees, but it is not akin the rules . In view of

the aforesaid facts, the respondents were expected to now act as per the rules for making appointment. The candidates even worked only for few

days could get benefit of criteria for appointment, which cannot be said to be as per the provisions of law. Hence, system evolved by the respondents

is not in consonance with the rules. Thus, the respondents are expected not to continue the said system onwards but to make appointment strictly as

per the rules and thereby circular dated 13.1.2003 should be modified or be withdrawn to make appointment in consonance to the rules. This is more

so when statement has come that those who have completed 240 days in a calender year, were given appointment earlier leaving none thereby

judgment of Sushila (supra) has already been complied with.

In the light of the aforesaid, I could have interfered in the appointment, but as none of the persons appointed by the respondents, have been impleaded

as party respondents, thus in absence of them, an adverse order setting aside their applications cannot be passed in the light of the recent judgement of

the Hon'ble Apex Court in the case of Girjesh Shrivastava & Ors. Vs. State of Madhya Pradesh & Ors. Reported in (2010) 10 SCC 707. Therein,

similar issue came up before the Hon'ble Apex Court for consideration and judgment of the High Court was set aside on the aforesaid ground itself

but then respondents are expected not to continue with the mechanism which they have evloved vide circule dated 13.1.2003 but to fill up the post by

the mode provided under the rules.

With the aforesaid observations, all these writ petitions are disposed of. This disposes of stay applications also.

In the case of Raju & Ors. Vs. State of Rajasthan & Ors., this Court interfering with the selection process initiated through advertisement

No.1/2012, for the post of 'Safai Karamchari', held it to be illegal, observing thus:

A perusal of the advertisement and subsequent order reveals that the candidates having experience of Safai would be given preference and

accordingly details of experience was called from each candidate. In pursuance to the advertisement, the petitioners submitted their applications

followed by its scrutiny. The non-petitioners thereafter drawn a timetable for selections vide their order dated 03.05.2013. The date of interviews was

fixed between 13.05.2013 to 24.05.2013, and result of which was to be declared between 27.05.2013 to 27.06.2013. The Municipal Council, Dausa

deviated from the procedure, though issued a letter to call the candidates for interview. The select list was prepared based on the lottery, though it was

not one of the mode provided for selection as on the date of issuance of advertisement or even the corrigendum. The amendment for it was made

subsequently by issuing a Notification on 23.01.2014 and its publication in Official Gazette is on 27.01.2014. The amendment is not made retrospective

so as to be applied for the selections in question. The issue of retrospective or prospective of the Rules has been considered by the Apex Court in the

case of P.Mahendran & Ors. Vs State of Karnataka & Ors. (AIR 1990 SC 405) wherein it was held that if the Rule is not effected retrospective

expressly or by implication, it would operate prospectively. Hon'ble Supreme Court in the case of K. Manjursree Vs. State of Andhra Pradesh & Ors.

(AIR 2008 SC 1470) further held that rule of game cannot be changed in its midst. Once the process of selection has been started, it should be carried

out in terms of the advertisement. Looking to the fact aforesaid, adoption of method of lottery for selection cannot be held to be proper or legal. It is

more so when the Municipal Council, Dausa had taken a decision to apply the method of interview to be a mode of selection for which discretion has

been given under Rules of 2012 and once discretion has been exercised, it cannot be changed when candidates were even called for interview.

Accordingly, their action to apply mode of lottery for selection is held to be illegal. It is more so when preference has to be given to those who are

having experience and it cannot be given if selection is made by lottery. Looking to all the reasons given above, selection by drawing lottery is held

illegal so as the select list and accordingly, the non-petitioners are directed to conduct the selections in accordance with the Rules then existing and the

decision taken by them for making the selections based on interview. With the aforesaid, the writ petition stands disposed of.

In the case of Bablu & Ors.(supra), a Coordinate Bench of this Court did interfere with the process of appointment on the post of Sweeper by

Jaipur Municipal Corporation, on 23rd September, 2009.

In the case Mahendra Sangat and ors.(supra), while dealing with the process of appointment on the post of 'Safai Karamchari' in Ajmer District, a

Division Bench of this Court setting aside the order of the learned Single Judge dated 11th July, 2014, held thus:

The matter is to be seen from other angle also. The court asked learned counsel for the respondents as to whether criteria for selection has been

changed to find out necessity of production of experience certificate. It is stated that, till date, the criteria has not been changed but it is in process. In

absence of selection to the post of Sweeper, how the work of cleanliness is being undertaken by the Municipal Corporation, Ajmer could not be

explained. Learned counsel, however, informed that they have engaged contractors. It is at the cost of the public exchequer because contractors have

to be paid apart from the employees engaged by them. There may be hidden benefit to the Officers of the Municipal Corporation in the said

arrangement. We do not want to go on the aforesaid but find serious default on the part of the respondents in doing so. It is not only for cancellation of

selection but no action thereupon during the intervening period. It is now of five years.

The fact further remains that a selection is again made by issuing fresh advertisement and Municipal Corporation, Ajmer received forged certificates

towards experience or any other certificate. The question would be as to whether selection has to be cancelled thereupon also. The issue aforesaid

could not be explained. If, again, forged certificates are submitted by the candidates, selection would have to be cancelled to maintain the stand taken

by the respondents. In that case, no appointment can be made at any time. The proper scrutiny of the candidature could have been made to give

appointment to eligible candidates. This can be done even now also.

It could not be clarified as to what was the default of those candidates who had applied for the post with proper declaration and without fraudulent

means. They have been punished at the cost of those who submitted forged documents. The respondents were expected to make strict scrutiny of the

documents and, after eliminating those who have produced false documents, eligible candidates should have been given appointment.

We do not want to comment that despite Constitutional amendment for self governance of the Municipalities and Panchayats, the Government still

treat them to be their Department and irrespective of their limited authority, intervention is made in routine manner like in this case. It could not be

clarified as to what was the necessity for the Municipal Corporation, Ajmer to send the matter to the Government and Authority of the Government to

nominate the Collector for making enquiry. Even if the aforesaid is considered to be in the fitness of the case, we find no reason for cancellation of the

selection based on the report, rather, it should have been taken to eliminate those who submitted forged documents or made false declaration.

Accordingly, the impugned letter/order dated 11.07.2014 for cancellation of selection so as order passed by the learned Single Judge dated 05.05.2017

are set aside. With the aforesaid, the special appeals are allowed. The respondent Municipal Corporation, Ajmer is directed to process the selection

and, while doing so, would be at liberty to further make scrutiny of those candidates who were declared eligible. If any document is found to be forged

so as the declaration, such candidates can still be eliminated while giving appointment to those who submitted applications with true disclosures.

The process of selection would be completed within a period of two months from the date of receipt of copy of this order so that the Municipal

Corporation may get Sweepers for maintaining cleanliness instead of remaining dependent on the contractors. If the sufficient hands are not selected

in this process, they would immediately issue fresh advertisement so that regular employees are made available to maintain cleanliness of the city,

which is need of the day. Strict compliance of the order would be made by the Municipal Corporation, Ajmer.

A copy of this order be placed in each connected file.

 38. In the case of Rajendra Kumar (supra), the process initiated for appointment to 30,000 (thirty thousand) vacancies, bifurcated in two phases and

preference to the members of 'Valmiti' and 'Hella' socities, was the subject matter of consideration whereupon the Coordinate Bench, ordered thus:

I have considered the rival submissions of the parties and perused the record.

So far as the facts relating to initial advertisement and thereupon corrigendum are concerned, there exists no dispute between the parties. In

pursuance to the corrigendum dated 03.05.2013, in all 30000 posts of Safai

Karamchari are to be filled in various muncipalities in the State of Rajasthan. The process for which was undertaken with issuance of advertisement

No.1/2012, dated 10.06.2012. The dispute arose when the order dated 03.05.2013 was issued by the Deputy Director of the Department. Para 13 of

the order dated 03.05.2013 has been challenged and is reproduced hereunder for ready reference:-

13- p;u ifØ;k dqy 30]000 inks ds fy, dh tkuh gS] fdUrq izFke pj.k esa lkekU; o vuqlwfpr tkfr ds vH;fFkZ;ksa dsa 20 gtkj inksa ij HkrhZ dh tk;sxh

ftuds vkj{k.k dk izfr'kr Øe'k% 50 ¼lkekU;½ o 16 ¼vuqlwfpr tkfr½ curk gSA bu nksuksa oxksZ ds inksa ¼66 izfr'kr½ ds fo:) ijEijkxr

lQkbZ dk;Z ftlesa jksM Lohfiax] lhojst lQkbZ] ukyk&uyh] lQkbZ] dpjk&laxzg.k o ifjogu rFkk e`r i'kqvksa ds fuLrkj.k vkfn ds vH;fFkZ;ksa ;Fkk

okfYedh o gSyk lekt vkfn ds vH;fFkZ;ksa dks izkFkfedrk nh tkosA vo'ks""k 10 gtkj inksa ij vU; oxkZs dh HkfrZ;Wk f}rh; pj.k esa dh tk;sxhA bl izdkj

izFke pj.k esa 20]000 o f}rh; pj.k esa 10]000 inksa ij mijksDrkuqlkj izkFkfedrkvksa dks /;ku esa j[krs gq, p;u fd;k tk;sxkAß

The 30000 posts have been bifurcated in two phases. In the first phase, 20000 appointments would be given from amongst the candidates of open

category and SC category and the remaining 10000 posts would be filled from other categories, but in second phase. The advertisement does not

bifurcate 30000 posts and to be filled in two phases, as indicated in the order dated 03.05.2013. Learned Additional Advocate General Shri Rajendra

Prasad could not supply any justification or reason to bifurcate the posts and to fill them in two phases and that too by dividing it between different

categories. It is settled law that whenever posts are to be filled, it should be by providing proper reservation to the extent it is meant for the posts.

There is no provision either under the Constitution or in the Rules for bifurcation of selections and appointments in two phases. By bifurcation,

appointment would be given to open and SC candidates in first phase followed by second phase for other castes. If the facts pertaining to Municipal

Corporation, Kota are considered, they issued the select list and even after expiry of period of more than 3-½ years, could not make appointments of

first phase. When appointment in the second phase would be made? It may be that while making appointment in two phases, deviation in the ratio for

reservation meant for each category would not be there, but it is not given out as to when appointment in second phase would be carried out and

otherwise division of posts in two phases would affect the seniority of the appointees. If an employee is appointed earlier in time then others may

march over in the seniority. It is on appointment in second phase. It is apart from the fact that while giving vertical reservation, the horizontal

reservation of certain categories need to be counted. It can be arranged properly if all the posts are filled in one phase and not in phases. The

horizontal reservation cannot be carried out properly if the posts are bifurcated. Thus, I find that para 13 to bifurcate the posts in two phases is

illogical, illegal and unconstitutional. The order seems to have been passed on the whims of the Officers of the State Government and in ignorance of

the Constitution and legal provisions.

In the instant case, the recruitment process has not been completed despite expiry of period of more than 3-½ years. In the absence of Safai

Karamcharis', we cannot expect cleanliness and to maintain sanitation system properly. The Government was expected to take immediate corrective

action on initiation of this litigation, but they remained silent spectators pending consideration of these writ petitions.

For all these reasons given above, I hold bifurcation of the posts in pursuance to para 13 of the impugned order to be illegal and unconstitutional.

So far as preference to ‘Valmiki’ and ‘Hella’ societies is concerned, it is due to the experience they possess for the post in question. The

Government is always at liberty to give credence to the experience to get the employees suitable for the post. It is not that there would be a

reservation for the members of the societies but is only a preference. However, it is necessary to issue direction to the non-petitioners that in the name

of preference, they should not make reservation of the posts for ‘Valmiki’ and ‘Hella’ societies. The preference should be given only

when it is shown that they were undertaking the same work as has been specified in the impugned order. In absence of which the non-petitioner

would not give preference to the members of the societies and in any case, it should not result in reservation of the posts for a particular society

because it will offend Article 16(2) of the Constitution of India. Thus, with the aforesaid observations, interference in the impugned order to that extent

is not made.

In view of the discussion made above, para/condition No.13 of the letter dated 03.05.2013 is struck down to the extent of bifurcation of the posts and

to be filled in one phase. The appointments of Safai Karamchari in pursuance to the advertisement would be made without bifurcation of the posts in

two phases.

It is however made clear that if the application forms of the candidates were rejected in reference to para 13 of the order dated 03.05.2013, then it is

declared to be illegal, but if the rejection is on any other ground and has not been challenged, this order would not be of any advantage to the

petitioners.

Since the litigation herein is on account of the order passed on the whims of the officers without any basis and that too in violation of the Constitution

and the Rules, the writ petitions stand allowed with cost of Rs.2000/- to each petitioner. In compliance of the order of this Court, now the

appointments would made in the manner given above and it would be within a period of six months from the date of receipt of a copy of this order.

In the case of Amit Gujarati and ors. (supra), a Division Bench of this Court vide order dated 19th May, 2016, interferring with the recruitment

process, observed thus:

We have considered rival submissions made by the counsel for the parties and perused the record. We are taking the first issue in reference to the

advertisement dt.25.05.2012 when the post of 'Safai Employees' was advertised. It is admitted by both the parties that due to litigation, the recruitment

could not be finalized as yet.

The only question for our consideration is as to whether the amendment during the course of recruitment can have effect by changing the Rule of

game in the midst of the recruitment. The issue aforesaid has been dealt by the Apex Court in the case of K. Manjusree (supra). The change of the

rule of game in the midst of the recruitment is not permitted. A process of recruitment initiated in the year 2012 should be completed as per the rule

then prevalent if the corporation decide to carry on the recruitment. It cannot be affected by the subsequent amendment as the rule of game cannot be

changed in the midst of the recruitment. The view is supported by the judgment of the Apex court thus we are inclined to accept the prayer of the

petitioner on the second issue.

Accordingly, this writ petition is allowed limiting to the issue of recruitment as per the rule then existing when advertisement was issued if the

Municipal Corporation, Jaipur want to proceed with the recruitment in reference to the aforesaid advertisement.

The controversy as to whether a candidate whose name appears in merit list, acquires any right for appointment; is no more res-integra in view of

various opinion of the Apex Court of the land in the case of Shankarsan Dash (supra), wherein on a survey of earlier opinions, Constitution Bench of

the Supreme Court, in no uncertain terms, observed thus:

It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful

candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation

to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so

indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an

arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are

filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be

permitted.

This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v.

Subhash Chander  Marwaha  and  Ors.  MANU/SC/0400/1973  :

(1973)IILLJ266SC ; Miss Neelima Shangla v. State of Haryana and Ors. MANU/SC/0472/1986 : [1986]3SCR785 and Jitendra Kumar and Ors. v.

State of Punjab and Ors. [1985] 1 SCR 899.

In State of Haryana v. Subhash Chander Marwaha andOrs., (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection

list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks.

Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed

as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a

right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed.

While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how many appointments

should be made and although the High Court had appreciated the position correctly, it had ""somehow persuaded itself to spell out a right in the

candidates because in fact there were 15 vacancies"". It was expressly ruled that the existence of vacancies does not give a legal right to a selected

candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Ors. v. State of Punjab

and Ors., was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness

was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even

after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana, was allowed by this Court but, not

on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the

Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that

only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to

select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of

course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates

notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the

Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service

Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.

Mr. Goswami appearing in support of the appeal hascontended that in view of the relevant statutory rules, the authorities were under a duty to

continue with the process of filling up all the vacancies until none remained vacant. Reference was made to Rule 4 of the Indian Police Service

(Cadre) Rules, 1954, Rules 3, 4, 6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and Rules 2(1)(a), 2(1)(c), 8 and 13 of the Indian

Police Service (Appointment by competitive Examination) Regulations, 1965. We do not think any of these rules comes to the aid of the appellant.

Rule 3 of the Cadre Rules directs Constitution of separate cadres for States or group of States, and Rule 4 empowers the Central Government to

determine the strength in consultation with the State Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment

Rules deals with the Constitution of the Service, and Rule 4 the method of recruitment. Rules 6 and 7 give further details in this regard. The learned

Counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position with respect to the

Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled

on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes that the candidates would be considered for appointment to

the available vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by

mere inclusion of his name in the list. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates.

We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules.

The main contention on behalf of the appellant hasbeen, however, that the authorities in keeping the vacancies arising later unfilled, acted

arbitrarily. Mr. Goswami referred to several documents annexed to the special leave petition and affidavits filed on behalf of the parties and contended

that although appointments of many candidates in the other services were made in the later vacancies, the vacancy in the Indian Police Service which

subsequently became available to the appellant was refused without any just cause, resulting in illegal discrimination. This was emphatically denied on

behalf of the respondent. Since the matter did not appear to be free from ambiguity on the basis of the affidavits before us, we decided to examine the

factual aspects more thoroughly by examining the other available materials on the records of the Union of India, and accordingly the learned Counsel

for the respondent got the relevant departmental files called. Two further affidavits were also filed along with photostat copies of a large number of

documents, which we examined at some length with the aid of the learned advocates for both sides. From the materials produced before us it is fully

established that there has not been any arbitrariness whatsoever on the part of the respondent in filling up the vacancies in question or the other

vacancies referred to by the learned Counsel for the appellant. The process of final selection had to be closed at some stage as was actually done. A

decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed. Mr. Goswami relied upon

certain appointments actually made subsequent to this stage and urged that by those dates the further vacancies in the Indian Police Service had

arisen to which the appellant and the other successful candidates should have been adjusted. We do not find any merit in this contention. It is not

material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments were concluded later. What

is relevant is to see as to when the process of final selection was closed. Mere completing the formalities cannot be of any help to the appellant. We

do not consider it necessary to mention all the details in this connection available from the large number of documents which we closely examined

during the hearing at considerable length and do not have any hesitation in rejecting the argument of the learned Counsel in this regard based on the

factual aspect.

So far the decision to adopt a different policy withrespect to filling up of the reserved vacancies is concerned the same is justified on account of

the special circumstances mentioned in the respondent's affidavits. The decision to depart from the confirmed policy was taken after a consideration

by the authorities of the position in regard to unavailability of qualified candidates from year to year adversely affecting the desired strength of the

reserved candidates in the services and cannot be condemned on the grounds of arbitrariness and illegal discrimination.

In the case of Babita Prasad and ors.(supra), while examining the claim of the petitioners in the backdrop of equality clause under Article 14 of the

Constitution of India, reiterating the view in the case of Shankarsan Dash (supra), observed, that the mere fact, that of candidates who had been

brought on the panel and had been sent for training at the Government expense; would also not imply that any indefeasible right had been created in

favour of such candidate for appointment after completion of training. In the case of Subash Chander Marwaha and ors. (supra), the Supreme Court

again observed that there is no constraint that the Government shall make an appointment either because there are vacancies or because a list of

candidates has been prepared and is in existence.

In the instant batch of writ applications, from a glance of the opinion of the Division Bench while interferring with the recruitment processes of

year 2012, it is evident that the amended Rule of 2014, could not be applied to the recruitment processes of 2012. Hence, the action of the State-

respondents in withdrawing the processes of selection of 2012, and including the left over unfilled vacancies in the selection process of 2018, involved

herein; canot be faulted.

In view of the factual matrix aforesaid wherein the processes of recruitment became subject matter of judicial scrutiny and were interferrred with

on account of inherrent illegalities; the action of the State-respondents in withdrawing the left over vacancies of the selection processes of the year

2012, and including those vacancies in the selection process of year 2018, involved herein, is perfectly legal and justified in the singular facts of the

matters at hand.

The issue, stands answered, accordingly.

ISSUE: (D) whether the manual scavengers were/are not entitled for preference in the selection process ?.

The issue as noted hereinabove, incidentally, finds complete answer in the opinion of the Division Bench in the case of Akhil Bhartiya Valmiki

Samaj Arakshan Samajik Shodh and Vikas Samiti (supra), decided on 13th July, 2018, wherein dealing with the claim of preference on the plea of it to

be their traditional work, in the process of recruitment on the post of 'Safai Karamchari'Â involved herein; the Division Bench observed thus:

Learned counsel for petitioner has even made the reference of Valmiki Samaj occupied in the job of cleaning work.

It is submitted that members of the Valmiki Samaj are doing cleaning working for last many decades thus it has become their traditional job. By

evolving method of lottery, they may be deprived to get appointment on the post of Safai Karamchari affecting their traditional work. We find

argument to be counterproductive, rather, damaging to the Valmiki Samaj itself. If we accept the plea about traditional work of safai by Valmiki Sajaj

then it would mean that members should not go for other jobs. It is even when they are entitled for reservation in service being members of Scheduled

Caste. If they would continue to work as Safaiwala then would not explore the possibility of other jobs. It may be higher and better post for their

career. It is otherwise a fact that post of Safai Karamchari cannot be earmarked for one society or caste thus argument in reference to Valmiki Sajaj

cannot be accepted.

In view of the observations, as extracted hereinabove, it will not be in fitness of things for this Court to observe any further in this regard. That

apart, as informed by the counsel for the petitioners, the matter is pending for consideration before the Apex Court of the land on the very same issue.

Accordingly, rights of the parties would ultimately be governed by the adjudication that may be made by the Supreme Court. For the present, suffice it

to say that issue aforesaid stands adjudicated upon in terms of the observations of the Division Bench aforesaid.

In the result, the instant batch of writ applications stands adjudicated upon on all the four issues, as answered hreinabove.

A copy of this order be placed in each of the file.