PANWAR, J. - (1.) THESE two writ petitions have been filed seeking the relief to struck down the proviso to rule 7 of the Rajasthan Education Subordinate Service Rules, 1971 (for short, "the Act, 1971") quashing the advertisement and the corrigendum and directing the respondents to fill up the posts by issusing fresh advertisement. Since both these writ petitions involve identical questions of law and facts, they are being deciding by this common order taking SBCWP No. 1905/2001, Sukh Ram & Ors. vs. State of Rajasthan & Ors. , as the leading case.
(2.) THE facts and circumstances giving rise to the writ petition are that the respondents issued an advertisement dated 31. 3. 2001 for direct recruitment on the post of Teachers Grade II against the vacancies for the year 2000-2001. In pursuance to the said advertisement, the petitioners submitted their applications. However, a corrigendum was issued declaring all the vacancies of 2000-2001 reserved for the members of Schedule Castes/scheduled Tribes. THE representations submitted by the petitioners could yield nothing. Hence these writ petitions. Refuting the averments made in the writ petition, justifying their stand and taking shelter of the mandate of Constitution of India, the respondents have filed a detailed reply taking certain preliminary objections also. I have heard learned counsel for the petitioners, the learned Advocate General and the learned counsel for the private respondents and perused the record of the case. By the advertisement Annex. 1 dated 31. 3. 2001, 300 posts of Senior Teacher/teachers Grade II were advertised seeking applications from the candidates of General Category, SC/st and O. B. C. However, vide Corrigendum Annex. 2 dated 15. 4. 2001, all these 300 posts have been reserved for the candidates belonging to Scheduled Castes/scheduled Tribes. Thus, by this corrigendum, the candidates of General Category as well as Other Backward Classes were made ineligible to apply for the said posts. The grievance of the petitioners is that the reservation for SC/st candidates cannot be made beyond 50% of the post advertised and if backlog vacancies are to be filled up, separate advertisement should have been issued. It has further been contended by the learned for the petitioners that the backlog vacancies cannot be carried forward after three years. Per contra, learned counsel for the respondents have taken shelter of the provisions of Article 16 (4b) of the Constitution of India and placed reliance on the Circular-Order dated 9. 10. 2000 (Annex. R. 1), by which backlog vacancies reserved for SC/st has been ordered to be taken as a distinct group and orders have been passed for non-applicability of ceiling limit of 50% on the backlog vacancies in view of Article 16 (4b) of the Constitution of India. Thus, in pursuance of the provisions of Article 16 (4b) of the Constitution, the State Government has decided to revise the applicability of 50% ceiling on reservation.
(3.) RULE 7 of the RULEs, 1971 provides reservation of vacancies for the Scheduled Castes and the Scheduled Tribes. Sub-rule (4) of rule 7 provided for carrying forward the backlog vacancies for SC/st candidates to the subsequent three recruitment years in total and thereafter such reservation would lapse. As per the Circular-order Annex. R/1 issued by the State Government on 9. 10. 2000, in view of the provisions of Article 16 (4b) of the Constitution of India, the State Government decided to revise the applicability of 50% ceiling on reservation as under:- " The revised vacancies for Scheduled Castes and Scheduled Tribes in all cases of direct recruitment and promotion, wherever applicable, which have remained unfilled in the earlier year (s), i. e. backlog and/of carried forward vacancies would be treated as a separate and district group and will not be considered together with the reserved vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. In other words, the ceiling of 50% of filling up of reserved vacancies would apply only on the reserved vacancies which arise in the current year and the backlog/carried forward reserved vacancies for SCs/sts of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling. " Thus, it is clear that the Corrigendum Annex. 2 has been issued to fill up the backlog vacancies for the SC/st candidates. The Circular-Order Annex. R/1 specifically provides that backlog/carried forward reserved vacancies for SC/st of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling limit of 50%. The ceiling limit of 50% would apply only in the case where the posts have been advertised for all categories of candidates including General Category, SC/st, O. B. C. etc. on the total number of vacancies of the year. By the corrigendum Annex. 2, the respondent have reserved all the 300 posts for the SC/st candidates. Thus, the ceiling of 50% shall not apply in this case because all the posts are sought to be filled-up exclusively to fill up the back-log vacancies. So far as filling the ensuing vacancies of subsequent years are concerned, the respondents may issue fresh advertisement inviting applications from all categories of candidates including the members of General Category and O. B. C. etc. It has been contended by the learned counsel for the petitioners that without amending the existing rule 7 of the Rules, 1971, the State Government, vide Circular-Order Annex. R/1 dated 20. 10. 2002, has amended the provision and authorised the Appointing Authorities to carry forward the backlog vacancies beyond the period of three years. The argument seems to be attractive but it is hollo in substance. Article 16 (4b) reads as under:- " Noting in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4a) as a separate class of vacancies to be filled up in any succeeding year or years and such clause of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. " ;