- (1.) SINCE all the aforesaid writ petitions involve common question of law, therefore, these four writ petitions are being decided by this common judgment. The facts of the case of Bharat Bhushan Basotia vs. State of Rajasthan & Ors. (SBCWP No. 8152/2004) are being taken as a leading case.
(2.) BRIEF facts of the case are that on 4.8.2003, the Rajasthan Public Service Commission (for short "the RPSC") issued an advertisement for conducting the examination for 108 posts of Munsif and Judicial Magistrate under the Rajasthan Judicial Service Rules, 1955 including the reserved category of SC/ST & OBC. The advertisement also contains that for the women candidates, there shall be horizontal reservation and in case of non-availability of women candidates, the seats are required to be filled by normal procedure. All the petitioners applied for the post of Munsif and Judicial Magistrate and appeared in the written examination. The RPSC declared the result on 25.6.2004. Thereafter, interview was conducted by the RPSC and the petitioners appeared before the RPSC for interview. Final result was declared by the RPSC on 21.8.2004 and against the 108 posts, 81 candidates were declared selected. The name of the petitioners were kept in reserve list. The main grievance of the petitioners is that reservation for SC & ST candidates shall be at the time of initial recruitment only in proportion of 16% and 12% respectively of the vacancies advertised. In the event of non-availability of eligible and suitable candidates amongst SC & ST candidates, as the case may be, in a particular year, the vacancies so reserved for them shall be filled by normal procedure and equivalent number of vacancies shall be reserved in subsequent year. Such vacancies which remain so unfilled shall be carried forward to the subsequently three years in total and thereafter such reservation including carried forward vacancies shall not exceed the percentage prescribed for total number of posts in the category for which direct recruitment is made. It is also submitted that reservation for women candidates shall be 20% category wise in direct recruitment. In the event of non-availability of eligible and suitable candidates amongst the women candidates in a particular year, the vacancies so reserved for them shall be filled by normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i.e., the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs. Therefore, once the law requires that the unfilled reserved category vacancies are to be filled up by normal procedure then the RPSC was required to prepare the select list by adding those vacancies of reserve category for which the suitable candidates were not available. However, the unfilled vacancies of reserved category have not been included in the vacancies of general category. In exercise of powers conferred by Article 234 read with Article 238 and the proviso to Article 309 of the Constitution of India, His Highness the Rajpramukh of Rajasthan makes the Rajasthan Judicial Service Rules, 1955 (hereinafter to be referred as the Rules of 1955) after consultation with the High Court of Judicature for Rajasthan. Part-III contains principles and procedure of recruitment and promotion. Rule 9 of the Rules of 1955 deals with the reservation of reserved categories which is reproduced hereunder:- 9. Reservation for Scheduled Castes/Scheduled Tribes/Other Backward Classes and Women Candidates. (1) Reservation for the Scheduled Castes and Scheduled Tribes Candidates shall be at the time of initial recruitment only in the proportion of 16% and 12% respectively of the vacancies advertised. In the event on non- availability of eligible and suitable candidates amongst the Scheduled Castes and the Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and equivalent number of vacancies shall be reserved in subsequent year. Such vacancies which remain so unfilled shall be carried forward to the subsequent three years in total and thereafter such reservation would lapse:- Provided that the total reservation including carried forward vacancies shall not exceed the percentage prescribed for total number of posts in the category for which direct recruitment is made. (2) Reservation for other Backward Classes shall be at the time of initial recruitment only in the proportion of 21% of the vacancies advertised. In the event of non-availability of eligible and suitable Candidates amongst the Other Backward Classes in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and vacancies shall not be carried forward to the subsequent year. (3) Reservation for women candidates shall be 20% categorywise in direct recruitment. In the event of non- availability of the eligible and suitable Women candidates in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i.e., the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs.
(3.) LEARNED counsel for the petitioners submits that these rules clearly provides that in the event of non-availability of eligible and suitable candidates amongst the candidates of reserved category, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year. The selecting authority when came to know after interview that women candidates are not available, they ought to have included the name of the petitioner amongst the selected candidates in the main list itself. The main contention of the petitioners is that non- consideration of the case of the petitioners is in contravention of Rule 9 (3) of the Rules of 1955 as 8 posts of SC category and 11 posts of ST category remained unfilled on account of non- availability of eligible and suitable candidates, which were required to be filled in accordance with the normal procedure. The petitioner secured 181 marks i.e., one mark less than the marks obtained by the last general candidate, ought to have considered in the list of selected candidates in the main list and he had right and claim against the 8 unfilled vacancies of women candidates. Learned counsel for the petitioners referred notification dated 10.10.2002 published in Rajasthan Gazette by which the various service rules were amended as mentioned in the Schedule. These rules are called Rajasthan Various Services Amendment Rules, 2002. As per amendment, the existing sub-rule (4) except its proviso of rule as mentioned in column No. 3 against each of the service rules as mentioned in Column No. 2 of the Schedule appended herewith shall be substituted by the following: namely:- "(4) Appointment shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst the Scheduled Castes and the Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be carried forward until the suitable Scheduled Castes and the Scheduled Tribes candidate(s) as the case may be, are available. In any circumstances no vacancy reserved for Scheduled Castes and the Scheduled Tribes Candidates shall be filled by promotion as well as by Direct Recruitment from General Category candidates. However, in exceptional cases where in the public interest the Appointing Authority feels that it is necessary of fill up the vacant reserved post(s) by promotion from the General category candidates on urgent temporary basis, the Appointing Authority may make a reference to the Department of Personnel and after obtaining prior approval of the Department of Personnel they may fill up such post(s) by promoting the General Category Candidate(s) on urgent temporary basis clearly stating in the promotion order that the General Category Candidate(s) who are being promoted on urgent temporary basis against the vacant post reserved for Scheduled Castes or the Scheduled Tribes Candidates, as the case may be, shall have to vacate the post as and when the candidate(s) of the category become available." ;