1. Instant petition has been preferred under Article 226 of the Constitution of India praying therein that the respondent No.2? District & Sessions Judge, Jaipur Metropolitan, Jaipur, be directed to appoint the petitioner as Lower Division Clerk against the posts reserved for Other Backward Class Candidates.
2. In the present writ petition, it is pleaded that the respondent No.2 ? District & Sessions Judge, Jaipur Metropolitan, Jaipur on 10.01.2013 published an advertisement calling for applications for recruitment to 130 posts of Lower Division Clerk
3. The learned counsel appearing for the petitioner contends that out of 130 posts advertised for recruitment of Lower Division Clerk, twenty-one posts were reserved for Scheduled Castes Candidates, sixteen posts for Scheduled Tribes Candidates and twenty-seven posts for Other Backward Classes Candidates.
4. Counsel appearing for the petitioner has made a grievance that District & Sessions Judge, Jaipur Metropolitan Jaipur, gravely erred to exclude seventeen-persons of Other Backward Class Category from the General Category merit list, even though said persons had secured more marks then the last candidate in the General Category.
5. Counsel appearing for the petitioner has relied upon the judgment rendered by the Co-ordinate Bench of this Court in the case of Jaswant Singh Vs. The State of Rajasthan & Another (S.B. Civil Writ Petition No.8334/2012), decided on 27.11.2015, to contend that those persons belonging to Backward Classes Category, who had obtained more marks then the last candidate in the General Category are to be considered in the General Category.
6. It is urged that it is a settled law that if the Backward Classes Candidates get selected to the posts advertised on the basis of merit they are to be treated as General Category Candidates and not as reserved category candidates.
7. In support of this contention, ld. counsel appearing for the petitioner, has relied upon the observations made by the Supreme court in the case of Jitendra Kumar Singh and another Vs. State of Uttar Pradesh and Others, reported as (2010) 3 S.C.C. 119.
8. The observations made by the Supreme Court in the case of Jitendra Kumar Singh and another (supra) reads as under :-
"49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16 (1)of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates at par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.50. It has been recognized by this Court in the case of Indra Sawhney that larger concept of reservation would include incidental and ancillary provisions with a view to make the main provision of reservation effective. In Indra Sawhney, it has been observed as under:"743. The question then arises whether Clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question, it is well to examine the meaning and content of the expression "reservation". Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are "any provision for the reservation of appointments or posts". The question is whether the said words contemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration--the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour."(emphasis in original)In our opinion, these observations are a complete answer to the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on behalf of the petitioners.51. We are further of the considered opinion that the reliance placed by Mr. Rao and Dr. Dhawan on the case of K.L. Narsimhan(supra) is misplaced. Learned Sr. Counsel had relied on the following observations:5. ...Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.The aforesaid lines cannot be read divorced from the entire paragraph which is as under:5. It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate."These observations make it clear that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate.52. In the present case, the concessions availed of by the reserved category candidates in age relaxation and fee concession had no relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgment in fact permits reserved category candidates to be included in the General Category Candidates on the basis of merit. 75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned Counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1)of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open competition."
9. Unable to assail the settled legal position canvassed by ld. counsel appearing for the petitioner, Ms. Ashish Joshi, appearing for the respondent- High Court, has contended that advertisement was issued in the year, 2013 and in pursuance thereof appointment letters were issued in favour of respondent Nos.4 to 6 in the year, 2013.
10. Thus, it is urged that present petition suffers from delay and latches as the writ petition has been filed after threeyears of the issuance of the appointment letters in favour of respondent Nos.4 to 6.
11. To controvert the submissions advanced by ld. counsel appearing for the respondent - High Court, ld. counsel appearing for the petitioner, has contended that the petitioner earlier approached this Court by filing S.B. Civil Writ Petition No.1142/2014 and the said writ petition was disposed of by directing the petitioner to obtain information under the Right to Information Act.
12. The order dated 19.02.2014 passed by the Co-ordinate Bench in S.B. Civil Writ Petition No.1142/2014 preferred by the petitioner reads as under :-
"Learned counsel submits that instead of challenging the order at Annexure-5, prays for a direction to the Commissioner, Information to expedite hearing of the pending appeal. As prayed, writ petition so as stay application are disposed of with the direction to the Commissioner, Information to expedite hearing of the pending appeal and if possible, decide it within a period of two months from the next date fixed for it or if notice has not been served on the respondents, then from the date of service."
13. Counsel appearing for the petitioner submits that in pursuance of the aforesaid order dated 19.02.2014 passed by the Co-ordinate Bench in earlier writ petition i.e. S.B. Civil Writ Petition No.1142/2014 preferred by the petitioner, the petitioner obtained information under the Right to Information Act only on 28.07.2016 and immediately thereafter in August, 2016 writ petition has been filed by the petitioner.
14. Having heard the learned counsel appearing for the parties, I find merit in the contention raised by the learned counsel appearing for the petitioner.
15. It is a settled legal position that if a person belonging to reserved category succeed in selection in open competition on the basis of his merit, he is not to be counted in the reserved category against the reserved category quota. Mr. Khan, ld. counsel appearing for the petitioner, has rightly submitted that if seventeen persons belonging to Backward Classes Category, who made to merit list by obtaining more marks then the last candidate in the General Category are transposed to the General Category, the petitioner will be entitled to get appointment under the Backward Class Category as the name of the petitioner is at serial No.18, out of 27 seats reserved for Backward Class Category Candidates.
16. Contention raised by ld. counsel appearing for the petitioner is also fortified by the observations made by the Supreme Court in the case of Samta Aandolan Samiti and another Vs. Union of India and Others, reported as 2014 A.I.R. SCW 406.
17. Admittedly, District & Sessions Judge, Jaipur Metropolitan Jaipur had acted against the mandate of law by not treating meritorious Backward Classes Category Candidates as part of the general list, therefore, candidates, like the petitioner belonging to Backward Class Category have been wrongly excluded from the process of selection.
18. It is also true that the respondents No.4 to 6 are working on the post of Lower Division Clerk from last four years and they have been confirmed against the post of Lower Division Clerk.
19. Therefore, to draw the balance of equities, it is, hereby, ordered that the petitioner belonging to Backward Class Category be considered and appointed, if otherwise eligible, against the vacant posts available or against the post which may accrue under the category of Backward Class in near future.
20. With the above directions issued to the respondents- High Court and the District & Sessions Judge, Jaipur Metropolitan Jaipur, the present writ petition is disposed of.
21. It is further ordered that in case in pursuance of this order passed, the petitioner is appointed as Lower Division Clerk, no monetary benefits shall be granted to him, as principle of ''no work '' no pay'' shall prevail. However, the petitioner shall be notionally given appointment from the date last candidate in the General Category was appointed.
