Bunch of writ petitions by OBC-NCL and EWS candidates for the post of Chauffeur/Driver who secured more than the general category cut-off but were not called for the job test and interview. The Court held that reservation and migration do not operate at the shortlisting stage but only at final selection, and rejected the petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
(1) D.B. Civil Writ Petition No. 10274/2021
Khushi Ram Gurjar S/o Sh. Shyoji Lal Gurjar, Aged About 35 Years, Village Nayagaon Post Kakod Tehsil Uniyara, Tonk (Raj.).
----Petitioner
Versus
Connected With
(2) D.B. Civil Writ Petition No. 4991/2021
Pradhuman Singh S/o Shri Surendra Singh, Aged About 24 Years, R/o Rathi Kuve Ke Pass, Deshnok, Bikaner, District Bikaner, Rajasthan.
----Petitioner
Versus
----Respondents
Connected With
(3) D.B. Civil Writ Petition No. 5087/2021
Mukesh Kumar Choudhary S/o Bhanwar Lal Choudhary, Aged About 27 Years, Vpo Chosla, Tehsil Nawa, District Nagaur, Rajasthan.
----Petitioner
Versus
----Respondents
Connected With
(4) D.B. Civil Writ Petition No. 5326/2021
Shrawan Singh S/o Pukhraj, Aged About 31 Years, R/o Guda Vishnoiyan, District Jodhpur.
----Petitioner
Versus
----Respondents
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Connected With
----Petitioners
----Respondents
Connected With
(6) D.B. Civil Writ Petition No. 6369/2021
Rakesh Kumar S/o Rajendra Singh, Aged About 42 Years, By Caste Jat, Resident Of Barwali, Tehsil Nohar District Hanumangarh.
Versus
Rajasthan High Court, Jodhpur Through Registrar (Examination).
----Respondent
Connected With
(7) D.B. Civil Writ Petition No. 6644/2021
Ajit Singh S/o Ugam Singh, Aged About 33 Years, Vpo Bnkli, Pali, District Pali (Raj).
----Petitioner
Versus
Connected With
(8) D.B. Civil Writ Petition No. 7151/2021
Rakesh Kumar S/o Shri Mahender Swami, Aged About 25 Years, R/o Ward No. 12 , 19 Ssw, Kishanpura Dikhnada, Village Hanumangarh Town, Tehsil And District Hanumangarh,
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Rajasthan.
----Petitioner
Versus
----Respondents
Connected With
(9) D.B. Civil Writ Petition No. 7155/2021
Ram Ji Lal Verma S/o Shri Hanuman Prasad, Aged About 38 Years, R/o Ward No. 8, Vpo Pakka Sarna, Village Pakka Sarna, Tehsil And District Hanumangarh, Rajasthan.
----Petitioner
Versus
----Respondents
Connected With
(10) D.B. Civil Writ Petition No. 7197/2021 Pravindra Singh S/o Rampat, Aged About 35 Years, R/o Village Thothi, Post - Gadli, District Jhunjhunu (Rajasthan)
----Petitioner
Versus
----Respondents
Connected With
(11) D.B. Civil Writ Petition No. 7749/2021
Damodar Singh S/o Sh. Hari Singh, Aged About 41 Years, R/o 2/1427, Kudi Bhagtasni Housing Board, Jodhpur (Raj.).
----Petitioner
Versus
----Respondents
Connected With
(12) D.B. Civil Writ Petition No. 7807/2021 Jaidev Vishnoi S/o Sh. Bhanwar Lal, Aged About 29 Years, Plot No. 18, Vidhya Nagar, Opposite Kali Tanki, Behind Rto,
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Jodhpur (Raj.).
----Petitioner
Versus
----Respondents
Connected With
(13) D.B. Civil Writ Petition No. 7861/2021
Azad Khan Pathan S/o Hafiz Khan Pathan, Aged About 39 Years, Near Gopaldwara, Talab Road, Mandal, District Bhilwara (Rajasthan).
----Petitioner
Versus
Connected With
Connected With
(15) D.B. Civil Writ Petition No. 6362/2021
Ravi Prakash S/o Shri Rajendra Prakash, aged about 23 years, B/c Nai, R/o village and Post Palli Pratham Via Lohawat, District Jodhpur (Rajasthan)
----Petitioner
Versus
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----Respondents
Connected With
(16) D.B. Civil Writ Petition No. 6060/2021
Subhash S/o Shri Jot Ram, aged about 33 years, R/o ward No.4, Village Pakka Sarna, Tehsil and District Hanumangarh, Rajasthan.
----Petitioner
Versus
----Respondents
Connected With
(17) D.B. Civil Writ Petition No. 5099/2021
Rajendra Kumar Jangid S/o Shri Bheru Ram, aged about 35 years, R/o VPO Ramsari, Tehsil Degana, District Nagaur, Rajasthan.
----Petitioner
Versus
----Respondents
For Petitioners : Mr. Jaidev Singh Bhati Mr. Nikhil Jain Mr. Ganga Ram Mr. Vijay Bishnoi Mr. Mahaveer Bishnoi Mr. Kailash Jangid Mr. Mahendra Singh Godara Mr. M.L. Deora Mr. Inderjeet Yadav For Respondents : Dr. Sachin Acharya with Mr. Manvendra Singh and Chayan Bothra
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SANDEEP MEHTA
J U D G M E N T
Judgment reserved on : 20th and 21st October, 2021 Judgment pronounced on : 28th October, 2021
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BY THE COURT : ( PER HON’BLE MEHTA,J. )
These writ petitions involve common questions of facts and law and are thus, being decided together by this judgment.
Brief facts relevant and essential for disposal of these writ petitions are that the Rajasthan High Court issued an advertisement dated 22nd July, 2020 for direct recruitment on the posts of Chauffeur in Rajasthan High Court and Driver in Rajasthan State Judicial Academy, Rajasthan State Legal Services Authority and District Courts. The advertisement prescribed following minimum academic, physical and technical qualifications:
The last date for submission of the application forms was 31st August, 2020.
The scheme and syllabus of examination as prescribed in Clause 12 of the advertisement is germane for deciding the controversy at hand and thus, the translated version thereof is reproduced hereinbelow for the sake of ready reference:
“The examination of the candidates shall be conducted in the following stages :-
If, number of applications received are more than 10 times of the total vacancies, in respect of advertised vacancies, an objective type written test may be conducted to shortlist
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the candidates. The Objective type written test will be conducted only for short listing the candidates and the marks obtained in the said examination will not be considered while preparing the final merit list.
[Emphasis supplied]
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Rajasthan High Court on 24.1.2021. After making an assessment of the objective type OMR sheets of all the candidates, who appeared in the written examination, the respondents declared the category-wise cut off marks as below:
| Category Cut-Off Marks |
|---|
| General 68 |
| General (Women) 46 |
| Scheduled Caste 70 |
| Scheduled Caste (Women) 56 |
| Scheduled Tribe 69 |
| Other Backward Class-NCL 76 |
| Other Backward Class-NCL (Women) 48 |
| More Backward Class-NCL 72 |
| Economically Weaker Sections 76 |
For the sake of convenience, the category-wise bifurcation of 73 posts and the number of candidates declared qualified for job test and personal interview is as below:
| Sr. No. |
Category | No.of Posts |
Cut Off No.of Candidates declared qualified for job test and interview |
|---|---|---|---|
| 1. | General | 44 | 68 453 |
| 2. | OBC-NCL | 10 | 76 137 |
| 3. | EWS | 3 | 76 31 |
| 4. | SC | 9 | 70 98 |
| 5. | ST | 6 | 69 69 |
| 6. | MBC-NCL | 1 | 72 10 |
| Total | 73 | 798 |
The petitioners who belong to the OBC-NCL (non creamy layer)/EWS categories, have raised a grievance that since the cut off marks for their respective category are much higher than the cut off declared for the General Category, they have been deprived from the benefit of reservation to which they are entitled as per
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the recruitment rules, terms and conditions of the advertisement and various judgments rendered by the Hon'ble Supreme Court.
The respondents in their reply have asserted that a large number of applications were received and thus, the screening test exercise was undertaken to shortlist the number of applications because it would neither be feasible nor viable to invite all the applicants for the job test and personal interview. The benefit of reservation would unquestionably be available to all the candidates, who have been declared qualified for the job test and personal interview after clearing the screening test. The apprehension of the petitioners that there has been a denial of reservation is refuted on the ground that candidates 10 times the number of the available posts in each category, have been invited for the job test and personal interview and thus, there is ample opportunity for the candidates so invited to avail the benefit of reservation when the final assessment is made after job test and personal interview.
Learned counsel for the petitioners contend that the procedure adopted by the respondents in ignoring the writ petitioners applicants, who belong to the reserved category i.e. OBC(NCL)/EWS, despite securing higher marks than the cut off declared for the General Category, and not inviting them for job test and personal interview flouts the settled norms of reservation policy. In support of their contentions, learned counsel for the petitioners have placed reliance on the Supreme Court Judgment in the case of “ State of Punjab Vs. Manjit Singh ” reported in AIR 2003 SC 4580. Reliance was also placed on a Single Bench
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Judgment of this Court in the case of “ Bhawani Singh Kaviya and Ors. Vs. State of Rajasthan and Anr. ” reported in 2008(4) RLW (Raj.) 3818. It was also contended that an identical controversy came up before Division Bench of this Court in a bunch of appeals led by D.B.Civil Special Appeal (Writ) No.635/2016 “State of Raj. and Anr. Vs. Hanuman Jat and Ors.” which was decided by order dated 13.5.2016 affirming the decision of the recruiting authority to shortlist the candidates (Patwaries) without applying reservation. The said order of this Court was challenged in appeal before the Hon’ble Supreme Court in Civil Appeal No.6084-6093/2016, wherein it has been directed that all such candidates, who are entitled to reservation and secured more than the cut off declared for the General Category would be entitled to be considered for further steps for selection. On these grounds, learned counsel for the petitioners craved indulgence of this Court to accept the writ petitions and direct inclusion of the petitioners in the next step of selection i.e. job test and personal interview.
Per contra, learned counsel for the respondents have placed reliance on the following judgments in support of their contentions, supporting the impugned action of the recruiting authority:
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Learned counsel for the respondents vehemently and
fervently contended that the exercise of shortlisting has been undertaken as per the selection rules and that there was a specific condition in the recruitment notification that the authority would be entitled to screen the candidates category-wise. It was urged that despite the screening test resulting into a situation where the cut off for the reserved categories be it OBC-NCL, EWS or SC, has been fixed higher than the cut off for the General Category, the possibility of the candidates declared qualified for job test and personal interview in these categories securing selection against the General Category seats by virtue of vertical reservation cannot be ruled out because as many as 137 candidates of the OBC-NCL category (10 seats), 31 candidates of EWS (03 seats), 98 candidates of SC category (09 seats) and 69 candidates of ST category (06 seats) and 10 candidates of MBC-NCL (01 seats) have been declared qualified for further steps of selection. It was further contended by the counsel for the respondents that the petitioners herein applied for the selection process fully conscious of the condition No.12.6 of the advertisement (supra) wherein it was clearly stipulated that candidates upto 10 times (categorywise) shall be declared qualified for the job test and personal interview on the basis of the marks obtained in the written test. Thus, it was clearly conveyed by the recruiting authority in the advertisement that the screening test would entail the shortlisting of candidates on the basis of the cut off for the respective category and that 10 times the number of candidates who secured marks equal to the cut off for his/her category would be admitted
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to the next step of selection. The petitioners did not challenge this condition of the advertisement before participating in the selection process and thus, at this belated stage, they are estopped from raising objection against this condition which otherwise also is compliant to the rules of selection. On these submissions, learned counsel for the respondents sought dismissal of the writ petitions.
We have given our thoughtful consideration to the arguments advanced at the bar and have gone through the material available on record and have carefully perused the judgments cited at the bar.
Rule 25 of the Rajasthan Subordinate Courts (Driver and Class IV Employees) Service Rules, 2017 (hereinafter will be referred to as ‘the Rules of 2017’) which provides for selection to the post of Driver reads as below:
“25. Selection to the Post of Driver.-(i) Recruitment to the post of Driver shall be made by Direct recruitment after holding a job test and personal interview from amongst the eligible candidates.
Provided, that the Recruiting Authority, may, if deemed appropriate, for the purpose of short listing of the candidates, hold a Screening Test.
(ii) Merit list for selection to the post of Driver shall be prepared by the Recruiting Authority on the basis of marks obtained by the candidate in the Job Test and interview.
(iii) Scheme and syllabus of the Test conducted under this Rule, shall be such as may be prescribed by the Recruiting Authority, from time to time.”
[Emphasis supplied]
A bare perusal of aforequoted Rule 25 reveals that the recruiting authority may undertake a screening test if the number of applications received is excessively high. There also was a clear indication in Clause 12 of the recruitment notification dated
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22.7.2020 that a screening test would be held in case, the number of applications received was 10 times the number of vacancies advertised. The screening examination would be by way of multiple choice question paper and the marks received therein, would not be counted for preparation of the final merit list. Clause 12(1)(vi) of the advertisement (reproduced supra) specifically provided that on the basis of the marks secured in the written test, upto the limit of 10 times, candidates would be invited for the job test and personal interview and that the cut off would be declared category-wise. Precisely, in compliance of Rule 15 of the Rules of 1999 and the Clause 12(1)(vi) of the recruitment notification, the respondents declared the cut off marks for various categories i.e. General, General (Women), Scheduled Caste, Scheduled Caste (Women), Scheduled Tribe, Other Backward Class-NCL, Other Backward Class-NCL (Women), More Backward Class-NCL and Economically Weaker Sections and in furtherance thereof, 10 times the number of candidates have been invited from each category as per the cut off so declared.
The issue regarding preparation of the result of the screening test by adopting the category-wise cut-off method is also prescribed in Rule 15 of the Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examination) Rules, 1999, validity whereof was examined by a Division Bench of this Court in the case of Dharamveer Tholia and others Vs. State of Rajasthan and others reported in 2000(3) WLC 399 . Rule 15 of the Rules of 1999 is analogous to Rule 25 of the Rules of 2017 and the ratio of the said judgment
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would thus be squarely applicable to the controversy at hand. The Division Bench turned down the challenge laid by the petitioners therein in almost identical situation. Reliance was placed by the Bench on the Supreme Court Judgment in the case of Chattar Singh and others Vs. State of Rajasthan and others reported in AIR 1997 SC 303 wherein the effect of Rule 13 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962 was examined and the Hon’ble Supreme Court went on to hold as below:
“18. The State had evolved the principle of reservation to an office of the State or post as an affirmative action to accord socio-economic justice guaranteed in the Preamble of the Constitution; the fundamental rights and the directive principles which are the trinity of the Constitution to remove social education and economic backwardness as a constitutional policy to accord equality of opportunity, social status or dignity of person as is enjoined in Articles 14, 15, 16, 21, 38, 39, 39A, 46 etc. Article 335 enjoins the State to take the claims of Dalits and Tribes into consideration for appointment to an office/post in the services of the State consistently with efficiency of administration. Though OBCs are socially and educationally not forward, they do not suffer the same social handicaps inflicted upon Scheduled Castes and Scheduled Tribes. Articles 15(2) and 17 furnish historical and social dissatisfaction inflicted on them. The object of reservation for the Scheduled Castes and Scheduled Tribes is to bring them into the mainstream of national life, while the objective in respect of the backward classes is to remove their social and educational handicaps. Therefore, they are always treated dissimilar and they do not form an integrated class with Dalits and Tribes for the purpose of Article 16(4) or 15(4). Obviously, therefore, proviso to Rule 13 confines the 5% further cut off marks in the preliminary examination from the lowest range fixed for general candidates. So, it is confined only to the Scheduled Castes and Scheduled Tribes who could not secure total aggregate marks on par with the general candidates. The Rule expressly confines the benefit of the proviso to Scheduled Castes and Scheduled Tribes. By process of interpretation, OBCs. cannot be declared alike the Scheduled Castes and Scheduled Tribes. Therefore, the contention that the doctrine of fusing "any backward class of citizen" in Article 16(4), further classification of Scheduled Castes
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and Scheduled Tribes and OBCs. as distinct classes for the purpose of reservation and omission to extend the same benefits to OBCs violates Article 14 is devoid of substance. If the logic of equality, as propounded by minority Judge is given acceptance, logically they are also entitled to reservation of seats in the House, of the People or in the Legislative Assemblies of States, though confined to Scheduled Tribes and Scheduled Castes, by operation of Article 334(a) of the Constitution with a non obstante clause engrafted therein. The founding fathers of the Constitution, having been alive to the dissimilarities of the socio-economic and educational conditions of the Scheduled Castes and Scheduled Tribes and other segments of the society have given them separate treatment in the Constitution. The Constitution has not expressly provided such benefits to the OBCs except by way of specific orders and public notifications by the appropriate Government. It would, therefore, be illogical and unrealistic to think that omission to provide same benefits to OBCs, as was provided to Scheduled Castes and Scheduled Tribes, was void under Article 16(1) and 14 of the Constitution. 19. Accordingly we are of the view that the OBCs. are not entitled to 5% cut off marks in the preliminary examination as provided under proviso to Rule 13. 20. As regards the preparation of separate list of General, OBCs, SCs STs and physically handicapped, in view of the fact that the latest amendment has been made explicit what was implicit in Rule 13, we are of the view that separate lists are required to be published by the Service Commission in respect of the candidates in the respective categories so as to make up number of candidates 15 times the notified or anticipated posts/vacancies so as to enable them to appear in the main examination. It is true that the amendment is prospective in operation. However, it does not detract from the efficiency of Rule 13 originally made. In view of the above, the Public Service Commission is directed to call all those candidates that constitute 15 times the posts/vacancies notified or anticipated in terms of the above declaration of law so as to enable them to appear in the main examination.”
Similar controversy was examined by another Division Bench of this Court in the case of Rajasthan Public Service Commission and others Vs. Megha Sharma and others reported in 2020(3) RLW (Raj.) 2203 wherein, it was categorically held that migration is not to be applied while shortlisting the candidates for interview/main exam after subjecting
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them to screening test and it has to be applied at the time of final selection i.e. preparing the final merit list only. The observations made by the Division Bench at para 12 of the said judgment are relevant to the controversy at hand and are thus reproduced hereinbelow for the sake of ready reference:-
Likewise, in D.B. Special Appeal (Writ) No.1448/2016 “ Garima Sharma Vs. State of Rajasthan and others ” decided
on 8.5.2018, the Division Bench of this Court while relying on the judgment in the case of Dharamveer Tholia (supra) held as below:
“We appreciate the aforesaid issue. The answer of the question was given by this Court in the case of Dharmveer Tholia (supra). The principal of vertical reservation for migration of meritorious reserve caste candidates to open category would not be applicable for short-listing. The list should only of general caste candidates. In fact, framers of the Constitution never visualized that reservation would be arranged vertically or horizontally. The theory aforesaid has been developed by the Court while adjudicating the issue. So far as the present matter is concerned, the judgment of the Apex Court in the case of Anil Kumar Gupta Vs. State of UP, (1995) 5 SCC 173 also supports the case. If vertical reservation is applied at the stage of short-listing also then virtually it would amount to grant of reservation at every stage of selection, though, is meant to apply at the final stage of recruitment and while giving appointment.
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A reference of the judgment of Division Bench of this Court in bunch of special appeals led by State of Rajasthan & Anr. Vs. Hanuman Jat & Ors., D.B. Civil Special Appeal (W) No.635/2016 decided vide order dated 13th May, 2016 would also be relevant. The controversy therein was not only in pursuance of the Rules of 1999 but on the same issue. Therein, the RPSC had arranged the list for admitting the candidates for Main Examination strictly fifteen times to each category. Therein, migration of the candidates from one category to another was not made. The aforesaid was challenged by reserve caste candidates alleging that on account of denial of migration of candidates from reserve caste category to open category, their rights have been affected. The plea taken therein was not accepted. Relevant paras of the judgment in the case of Hanuman Jat & Ors. (supra) are also quoted hereunder for ready reference and otherwise it supports the case of the petitioner-appellants :
“The preliminary examination was held on 13.2.2016, in which 6,45,071 candidates appeared and result was declared on 17.3.2015 and a list of candidates 15 times the number of vacancies category-wise to be admitted to the main examination scheduled to be held on 7.5.2016 was prepared and published. The list of candidates 15 times the number of vacancies categorywise to be admitted to the main examination prepared by the Board is not the subject matter of challenge in the batch of writ petitions. However, since the cut-off marks fixed in the preliminary examination for short listing the candidates for general category being lower in comparison to the cut off marks for SC/ST/OBC categories, a complaint has been lodged by the members of the reserved categories SC/ST/OBC and their grievance is that since the last candidate in general category secured lower marks, atleast those candidates of SC/ST/OBC categories, who have secured higher marks or 104.51 marks (i.e. cut off marks fixed in the general category) should be made entitled to be admitted to the main examination, even if they exceed 15 times the number of vacancies in their own reserved categories and denial from participation and admission to the main examination will be violative of Article 16(4) of the Constitution.
It may be relevant to note that against the advertised vacancies, if multiplied by 15 times, the candidates to be admitted to the Main Examination approximately come to 67,000 candidates for which arranges are to be made but what is being contended by the petitioners is accepted even on hypothetical figures, it may be more than One Lac Fifty Thousand of candidates to be admitted to the Main Examination and that may be 30 times of the number of vacancies although the requirement is 15 times of the vacancies
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category-wise frustrates the purpose of shortlisting the candidates for being admitted to the Main Examination.
The same very question arose for consideration before the coordinate Division Bench of this Court in the case of Dharamveer Tholia (supra), in which the question of interpretation was of Rule 15 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1999, which envisages the scheme of examination providing that the competitive examination shall be conducted in two stages i.e. Preliminary Examination and Main Examination followed by interview and the number of candidates to be admitted to the main examination will be 15 times the total approximate number of vacancies (categorywise). Rule 15 of the Rules of 1999 is quoted below:-
“15. Scheme of Examination, Personality and Vivavoce Test: The Competitive Examination shall be conducted by the Commission in two stage i.e. Preliminary Examination and Main Examination as per the scheme specified in Schedule-III. The marks obtained in the Preliminary Examination by the candidates, are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (category wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for any lower range will be admitted to the Main Examination. Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service candidates having "C" Certificate of N.C.C. will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate. Provided that the commission, on intimation being received from the Government before declaration of the result of the Preliminary Examination, may increase or decrease the number of vacancies advertised.”
There were facts and circumstances where the cut off marks for the candidates of OBC category was higher than the general category and question was that if cut off marks for general category is lower than the category of OBC, such OBC candidates, who have secured marks upto the cut off marks fixed for general category, are entitled to be admitted to the main examination and the
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Division Bench examined this question and framed the following 7 questions of law in the batch of writ petitions:-
“(i) Whether it is permissible for the R.P.S.C. to draw a list in terms of Rule 15 by excluding reserved category from general category notwithstanding the fact that reserve category persons on their merit standing find placement in general category?
(ii) Whether it is permissible for the R.P.S.C. to have a higher cut off standard for the OBC as compare to the general category?
(iii) Whether it is constitutionally permissible for the R.P.S.C. to operate Rule 15 in a manner that disadvantaged sections, reserved category (OBC) is made to suffer handicaps on account of reservation as compare to general category?
(iv) Whether Rule 15 as interpreted by R.P.S.C. is unconstitutional has offended Articles 14, 15(4) and 16(4) of the Constitution of India?
(v) Whether Rule 15 as interpreted by R.P.S.C. is contrary to law Laid down by apex court?
(vi) Whether general category can be codified as non-reserved category and excluded in all situations meritorious reserved category candidates and can find place in general category on their own merit standing?
(vii) Whether the massive affirmative action in favour of general category (non-reserved category) is permissible under Articles 15 and 16 of the Constitution of India?”
After examining the judgment of the Apex Court in the case of Chatter Singh (supra), the Division Bench of this Court in Dharamveer Tholia (supra) finally observed as follows:
“49. Rule 15 of the Rules of 1999 provides the procedure to prepare the list of candidates for appearing in the main examination, therefore, the result of the preliminary examination cannot be considered to be a final result. In regard to the submission made by the Senior Counsel for the petitioner about the reservation policy provided under Article 16 (4) of the Constitution as well as the judgments cited are not in dispute but the same in our view, will not be of any help or assistance to the petitioners at this stage of short listing. The judgment of the Hon'ble Supreme Court relied on by the petitioner in Sabharwal's case (supra) pertains to the promotion policy and also of the vacancies based on roster system which in our opinion, will be applicable only at the time of preparing the final select list. As per Rule 15, the RPSC shall permit the candidates 15 times the total approximate number of vacancies in each category in the main examination and this Rule has been upheld by the Supreme Court in Chattar Singh's case (supra). The reservation policy is meant for recruitment only and there is no other reservation policy for short
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listing in examination. As such, the actions of the RPSC are within the mandate of Article 16(4) of the Constitution of India as well as the Rules of 1999. If the contention of the learned Counsel for the petitioners is accepted, the thousands of meritorious candidates who have been selected as per the preliminary examination will be affected and their interest will be jeopardized.
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general category and similarly, 175 from the ST category shall have to be shifted to the general category. In addition to that, in general category, the female candidates who have secured higher cut-off marks fixed for the general category (male) shall also be shifted to the general category (male) in the number of 157. It is also seen from Para 9 that if the revision is to take place in accordance with the interpretation put forward by the petitioners, the cut-off marks in each category shall have to be revised in the following manner: CUT OFF MARKS Revised: Male Female 1. General 216 139 2. SCs. 158 90 3. STs. 166 72 4. OBCs 185 132 Existing: 1. General 203 144 2. SCs 163 91 3. STs 174 72 4. OBCs 204 136.
The Division Bench of this Court is clear in its view that the list of candidates 15 times the number of vacancies category-wise belonging to one category cannot be shifted to another category on the basis of their merit as the list of successful candidates in the preliminary examination is meant only for short-listing the candidates for the main examination and that does not constitute the merit of the candidates, which is done at the time of preparation of final merits of the candidates.
It cannot be disputed that the purpose of holding Screening Test is to ensure the basic standard of eligibility of the candidates and even at the stage of admission to the main examination, the rule of reservation of posts cannot be applied. Reservation for applicants is also not permissible under Article 16(4) of the Constitution.
“In our considered view, the reservation is applied at the time of recruitment and not at the time of preliminary examination for short listing the number of candidates and it is the duty of the recruiting authority to ensure fair and competitive examination. There is a distinction between the holding of preliminary examination and the main examination. The preliminary examination is held to short list the candidates and marks obtained in such examination are not added while determining the final merit of the candidates and thus, reservation of applicants is not applied at the stage of preliminary examination, as settled by the Apex Court in the case of Chattar Singh (supra) and also by the coordinate Division Bench of this Court in the case of Dharamveer Tholia (supra). We are clear in our view that the rule of reservation is not applied at the time of short listing the candidates and Article 16(4) for reservation is not applied in every stage of selection process as being envisaged in the facts and circumstances of the case and we are in full agreement with the view expressed by the
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Division Bench of this Court in the case of Dharamveer Tholia (supra).
The issue is always cropped in as & when the reserved category qualify with the better marks in comparison to general category and despite the members of the reserved category are within 15 times, the candidates in excess from reserved category, if are permitted to admit in the Main Examination, the very purpose of shortlisting the number of candidates shall be frustrated and interpretation for shortlisting the candidates remain dependent on the procedure prescribed or as per the Rules, if so provided but we find that whenever the cut-off of general category is lower than the cut-off of reserved category, this question is always being raised. But, in our considered view, the legal proposition of shortlisting and publishing the list of candidates to be admitted to the Main Examination will remain dependent on the settled proposition of law and not on the facts of each case as and when came for scrutiny.
In our view, after the judgment of the Division Bench of this Court in the case of Dharamveer Tholia (supra) examining the issuance of list of candidates 15 times the number of vacancies category-wise as per Rule 15, relying upon the decision of the Apex Court in the case of Chattar Singh (supra) and upholding the list relating to General, SC, ST, OBC categories to be in consonance with law and in conformity with the mandate of the Constitution, the issue is now no more res integra and open for consideration, unless we differ from the view expressed by the coordinate Division Bench of this Court.
Although in one of the judgments of the Single Bench in Bhawani Singh Kaviya (supra), while examining the selfsame controversy, the Single Bench of this Court has distinguished the judgment of the Division Bench in Dharamveer Tholia (supra) on the premise that the Division Bench has not examined the question and what does general category means, but, with due respect, we may say that the Division Bench in Dharamveer Tholia (supra) has examined the very question in its judgment which is reported in RLW 2000(3) Raj.1809 = 2000(3) WLC 399 and we have also noticed the questions which were framed and answered by the Division Bench and in our considered view, the judgment of the Single Bench of this Court Bhawani Singh Kaviya (supra) in the light of the DB judgment in Dharamveer Tholia (supra), cannot be approved by us.” The case aforesaid was decided when cut off marks of the OBC category went higher than the open/general category. It was questioned as to how the cut off marks of the open category can be lower than reserve category and, accordingly, the prayer was made to allow the candidates of reserve category to appear in Main Examination by taking cut off marks of
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open category. The Court, after referring the question framed by the Single Bench, applied the judgment in the case of Chattar Singh & Ors. Vs. State of Rajasthan & Ors., 1996 (11) SCC 742 . The judgment in the case of Chattar Singh & Ors. (supra) was even relied in the case of Dharmveer Tholia (supra) and para Nos.49 to 52 of the judgment in the case of Dharmveer Tholia (supra) have already been quoted in the preceding paras to answer the question.”
Considering the view expounded by Division Benches of this Court in the above cases while placing reliance on the judgment of Hon’ble the Supreme Court in the case of Chattar Singh (supra), it is clear that the concept of vertical reservation and migration to the higher category cannot be applied in a shortlisting exercise which is provided under Rule 25 of the Rajasthan Subordinate Courts (Driver and Class IV Employees) Service Rules, 2017. The contention of the learned counsel for the petitioner that a similar view taken by the Division Bench of this Court in a bunch of appeals led by D.B.Civil Special Appeal (Writ) No.635/2016 “State of Raj. and another. Vs. Hanuman Jat and others” has been stayed by Hon’ble the Apex Court, is not quite accurate. The order passed by the Supreme Court shows that the judgment of the High Court is not stayed, instead following interim formula was provided:-
“It is submitted that in view of the fact that by the interim orders, recruitment for the purpose of filling up the posts of Patwaris is held up, the State is greatly handicapped in its administration.
For the interim measure, the State as well as the appellants agree that the ends of justice would be met for the time being by permitting all the candidates who secure equal to or more than 104.51 marks in the preliminary examination (irrespective of the category to which candidates belong) be permitted to appear in the final examination without prejudice to the rights of the parties and the various question of law arising in the appeals. The respondents are permitted to complete the process of selection of Patwaris in accordance with law.”
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In addition thereto, we may observe that the recruitment notification made a specific stipulation in Clause 12(1)(vi) that a screening test would be held for shortlisting the candidates and that the list of the candidate declared successful for participating in the final list of recruitment i.e. job test and personal interview would be prepared “ category-wise ”. This recruitment condition of the advertisement was not challenged by any of the petitioners before applying and participating in the recruitment process. Thus, they cannot be allowed to do so at this belated stage when the result of screening test is already been declared. The consequence of a candidate not challenging a so-called offending clause of the recruitment notification before participating in the selection process was considered by Hon’ble the Supreme Court in the case of Madan Lal and others Vs. State of Jammu and Kashmir and others reported in AIR 1995 SC 1088 and it was held as below:
“9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Upto this stage there is no dispute between the parties. The petitioners also appeared at the oral interview candidates by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition.
It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted.
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In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. MANU/SC/0478/1986 : [1986]1SCR855 , it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
In the case of State of Punjab and others Vs. Manjit
Singh (supra) relied upon by learned counsel for the petitioners, the Hon'ble Supreme Court held that for the purpose of shortlisting, it would not at all be necessary to provide cut off marks. However, on a careful consideration of the said judgment, it becomes clear that in the said case no rule analogous to Rule 15 of the Rules of 1999 or Rule 25(ii) of the Rajasthan Subordinate Courts (Driver and Class IV Employees) Service Rules, 2017, was under consideration and thus, the said judgment is clearly distinguishable.
Hence, the petitioners are not entitled to challenge the action of the respondents in preparing the category-wise list of successful candidates who have been declared qualified for participating in the final phase of recruitment i.e. job test and personal interview.
In addition, we may observe that from the record of the respondents, as many as 453 candidates of the General Category have been summoned for the job test and personal interview against 44 available seats. None of these candidates have been impleaded as party respondents by the petitioners in these writ petitions and thus, in case, the relief sought for is extended to the
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petitioners, the same may result into ouster of many of these candidates, who were necessary parties but have not been joined as such in this petition.
As a consequence of the above discussion, we find no illegality, infirmity or arbitrariness in the impugned action of the respondent warranting interference therein in the extraordinary writ jurisdiction conferred upon this Court by virtue of Article 226 of the Constitution of India.
Hence, the writ petitions are rejected as being devoid of merit.
No order as to costs.
(SANDEEP MEHTA),J.
(AKIL KURESHI),C.J.
/tarun goyal/
3 issues framed by the court
Whether the recruiting authority could apply category-wise cut-offs in a screening test for shortlisting, where the cut-off for reserved categories exceeded that fixed for the general category.
Whether the rule of vertical reservation and migration of reserved category candidates to the general category applies at the shortlisting stage or only at final selection.
Whether candidates who participated in the selection without challenging the category-wise shortlisting condition in the advertisement could challenge it afterwards.
Colour shows how this judgement treated each authority
State of Punjab Vs. Manjit SinghDistinguished¶285
State of Punjab Vs. Manjit Singh reported in AIR 2003 SC 4580 · Who else cites this
Bhawani Singh Kaviya and Ors. Vs. State of Rajasthan and Anr.Disapproved¶270
Bhawani Singh Kaviya and Ors. Vs. State of Rajasthan and Anr. reported in 2008(4) RLW (Raj.) 3818
State of Raj. and Anr. Vs. Hanuman Jat and Ors.Referred¶273
D.B.Civil Special Appeal (Writ) No.635/2016 State of Raj. and Anr. Vs. Hanuman Jat and Ors.
Chattar Singh and Ors. Vs. State of Rajasthan and othersRelied on¶218
Chattar Singh and Ors. Vs. State of Rajasthan and others reported in AIR 1997 SC 303 · Who else cites this
Rajasthan Public Service Commission and others Vs. Megha Sharma and othersRelied on¶222
Rajasthan Public Service Commission and others Vs. Megha Sharma and others reported in 2020(3) RLW (Raj.) 2203
Dharamveer Tholia and others Vs. State of Rajasthan and othersFollowed¶215
Dharamveer Tholia and others Vs. State of Rajasthan and others reported in 2000(3) WLC 399
Madan Lal and others Vs. State of Jammu and Kashmir and othersRelied on¶278
Madan Lal and others Vs. State of Jammu and Kashmir and others reported in AIR 1995 SC 1088 · Who else cites this
4 provisions across 3 enactments
Khushi Ram Gurjar
Pradhuman Singh
Rajasthan High Court, Jodhpur, Through Its Registrar General
Registrar (Exam.), Rajasthan High Court, Jodhpur
Akil Kureshi
Sandeep Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
