MS. RACHNA Vs. STATE AND ANOTHER
LAWS(UTN)-2012-3-65
HIGH COURT OF UTTARAKHAND
Decided on March 14,2012

Ms. Rachna Appellant
VERSUS
State And Another Respondents

JUDGEMENT

- (1.) IN the advertisement it was indicated that 33 posts are available. It was also indicated that out of those 33 posts, 24 posts are available for open/general category candidates, one post is reserved for Scheduled Caste candidates and 8 posts are reserved for Other Backward Classes category candidates. The advertisement indicated that there is a horizontal reservation for women in 9 posts out of 24 posts available to open/general category candidates. Respondees to the said advertisement were screened by a preliminary examination. Various cut off marks were fixed for different categories of people mentioned in the advertisement. 91.25 marks was fixed as the benchmark/cut off mark for open/general category women candidates, for whom 9 out of 24 vacancies were reserved horizontally. Writ petitioner belongs to Scheduled Caste community. Since there was only one post reserved for Scheduled Caste category, petitioner applied for the said post. At the preliminary examination she secured 108.5 marks. 108.5 marks was less than the cut off mark, as was fixed for Scheduled Caste category candidates. However, the fact remains, that 108.5 marks was much above the cut off mark fixed for open/general female candidates, for whom 9 out of 24 open/general category vacancies were reserved. Since the petitioner had applied holding out that she is a person belonging to Scheduled Caste community and, since she did not indicate that she is also otherwise a woman belonging to the open/general female category of the State, it was held out to her that she has not qualified in the preliminary examination. The writ petition was disposed of by directing acceptance of the candidature of the petitioner for the main examination on the date of presentation of the writ petition, when despite notice, no one appeared on behalf of review applicant. In the review application filed by the review applicant it has not been contended that the petitioner did not secure 108.5 marks in the preliminary examination. In the review application it has also not been contended that the minimum bench/qualifying mark for open/general women category was 91.25 marks. The review application has been field only on the ground that the order as passed is not a legal order. That is no ground for review in law, because even if an order is not legally sustainable, a review against that order does not lie. The Learned Counsel for the review applicant wanted to site judgments of the Hon'ble Supreme Court to impress upon us, that the order under review is an illegal order. As aforesaid, even if the order under review is an illegal order, that is no ground for review. Furthermore, we are of the view that a Scheduled Caste Candidate is first a citizen of India and, then she is a scheduled Caste. When a citizen of India, who is also a Scheduled Caste is not entitled to the benefit available to a Scheduled Caste for she has failed to achieve the benchmark earmarked for Scheduled Caste candidates, she in terms of the mandate of the Constitution of India is entitled to the same treatment as that of others sailing in the boat as citizens of India. In the instant case, a distinction was being drawn between a female belonging to open/general category and a female belonging to Scheduled Caste category, that according to us is not permissible in law. We, accordingly, dismiss the review application.;


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