- (1.) ALL the aforesaid writ petitions although have been filed with different prayers and are founded on different legal grounds but since they pertain to the same process of selection for appointment on the posts of Assistant Agricultural Engineers initiated by the Rajasthan Public Service Commission (for short "the Commission") vide advertisement dated 26-10-1996 as amended by corrigendum dated 21-12-1996 and yet another corrigendum dated 30-1-1997, these writ petitions were ordered to be connected with each other and therefore they were heard together and are now being disposed of by this common judgment.
(2.) THE Commission issued an advertisement on 26-10-1996 inviting thereby applications from eligible candidates for appointment on 20 posts of Assistant Agricultural Engineers in the Agricultural Department of the Government of Rajasthan. THE Commission issued corrigendum on 21-12-1996 increasing the number of posts from 20 to 48. Even as the process of selection was still on, the State of Rajasthan vide notification dated 22-1-1997 brought about an omnibus amendment in all its Services Rules including in the Rajasthan Agriculture Service Rule 1960 (for short "the Rules of 1960") with which we are concerned in these cases. Such amendment provided reservation to women candidates in service to the extent of 20% in direct recruitment. THE Commission thereafter again issued corrigendum on 30-1-1997 to notify that such reservations shall be provided to the women candidates out of 48 posts as originally advertisement in the subject recruitment also. I have heard Shri Manish Bhandari, learned counsel for petitioners in writ petition filed by Smt. Sangita Jain and Pramanand Chaturvedi & others, Shri Mahendra Singh, learned counsel for petitioners in writ petition filed by Shri Ashok Kumar Thayya & others and Shri Sandeep Saxena, learned counsel for petitioner in writ petition filed by Shri Rajeev Kulshreshtha & others and Shri S.N. Kumawat learned counsel for Commission, Shri B.S. Chhaba, learned Deputy Government Advocate and Shri S.P. Sharma, learned counsel for the respondents in one of the petitions. Shri Mahendra Singh, learned counsel representing the petitioner in one of the petitions also opposed the writ petitions filed by Shri Parmanend and Rajeev Kulshreshtha. Shri Manish Bhandari, learned counsel for the petitioner (in WP No.3589/2001) submits that grievance of Smt. Sangita Jain is that the Commission even after it has issued corrigendum on 30-1-1997 providing for the reservation of 20% to the females has not adhered to its stand inasmuch as it has wrongly applied the rule of reservation by treating the women candidates as general. It has prepared a common select list for all the male and female candidates resultantly the petitioner was pushed down in the general category. As per law on the subject, the Commission ought to have prepared separate select lists for male and female category. According to him, when 20% posts out of 48 had been reserved for women, appointment against 10 posts was required to be made from amongst female candidates and when only 8 candidates in female category applied, the number of candidates being lesser than the total number of posts reserved for them, the Commission committed an illegality by subjecting them to a screening test. Under compulsion, therefore, the petitioner and other women candidates had to appear for screening test on 21-12-1997 in which the petitioner was illegality declared to have failed. Shri Manish Bhandari, learned counsel for the petitioner has relied upon a decision of a co-ordinate bench of this court in S.B. Civil Writ Petition No.2265/1998, Pragya Saxena v/s State of Rajasthan decided on 7-8-1998, copy of which has been placed on record as Annexure 4. This judgment related to the same process of selection. In spite of the fact that Miss Pragya Saxena passed the screening test, she was not appointed because she appeared below in the combined merit list of general category. Shri Bhandari while referring to relevant part of the judgment argued that in that case it was held that no screening test was required to be held for female candidates and if the female candidates fulfill the eligibility criteria, the posts should have been filled up the straight-way. Even if the screening test was required to be held, separate lists should have been prepared for men and women. That having not been done, the petitioner was held entitled to appointment. He argued that the aforesaid judgment passed by the learned Single Judge, was upheld not only by the Division Bench in D.B. Civil Special Appeal (Writ) No. 105/1999, State of Raj. V/s Pragya Saxena & Anr. by dismissing the appeal vide judgment dated 3-4-2000, but Special Leave to Petition filed by State of Rajasthan there against was also dismissed. Shri Bhandari argued that although the petitioner Smt. Sangita Jain was a petitioner along with others in the aforesaid Writ Petition No.4034/98, but she later applied for deletion of her name from the array of petitioners. This court citing the reason of her having filed an independent petition by its order dated 1-3-2005 allowed the application thereby deleting her name from the array of the writ petitioners. He therefore argued that in spite of such objection raised by the respondents, the subsequent writ petition filed by Smt. Sangita Jain cannot be dismissed on that ground. The writ petition filed by Smt. Sangita Jain has been opposed by, amongst others, Shri S.N. Kumawat, learned counsel for the Commission who argued that the process of selection was completed long back and the petition having been filed belatedly was liable to be dismissed. Names of all the selected candidates have already been forwarded to the Government and in fact appointment against all 48 posts have been made. He argued that the Commission sought clarification from the Government in regard to notification dated 22-1-1997 providing reservation of 20% to women. The State Government vide its letter dated 13-11-1997 clarified that there shall be no reservation for women candidates in the present process of selection because the notification dated 22-1-1997 could not be given retrospective effect. Screening test was held on 21-12-1997 in which the petitioner also participated. The result of such test was declared on 24-1-1998 but the petitioner remained unsuccessful and therefore she was not called for interview. He argued that the petitioner along with Pramanand Chaturvedi & others has filed another Writ Petition (No.4034/1998) relating to the same recruitment process with the prayer that the Government and the Commission be required not to make appointment from the reserve list. He argued that in clause (5) of the said corrigendum, specific reference was made to the advertisement No.6/96-97 dated 26-10-1996 and to corrigendum No.3/96-97 dated 21-12-1996 earlier issued whereby the last date of submission of the application form was extended from 1-2-97 to 24-2-1997. Another petition with a different prayer at the instance of the same petitioner would therefore be not maintainable and is liable to be dismissed. Shri S.N. Kumawat further argued that the case of Pragya Saxena was entirely different because she not only participated in the screening test but was also declared successful. The petitioner appeared in the screening test without any protest and now at this stage, she cannot be permitted to challenge the same, particularly when she failed to qualify the same. Referring to the corrigendum No.4/96-97 dated 28-1-1997 issued by the Commission, he argued that that corrigendum makes it clearly evident that the reservation of 20% would not be available to women in regard to the selection process in question and therefore according to clause (5) of the said corrigendum, a separate list was not required to be prepared for women candidates because no reservation was provided to the women in the process of selection in question. He, therefore, argued that the writ petition be dismissed.
(3.) SHRI B.S. Chhaba, learned Deputy Government Advocate also joined SHRI S.N. Kumawat in opposing the writ petition by adopting his arguments and submitted that the writ petitions are liable to be dismissed. Writ Petition No.4034/98, Parmanand Chaturvedi & Ors. v/s State of Rajasthan and Writ Petition No.4725/1998, Rajeev Kulshreshtha & Another v/s The State of Raj. & Another have been filed with a similar and almost common prayer. Shri Manish Bhandari and Shri Sandeep Saxena, learned counsel appearing for the petitioners in these petitions argued that the posts of Assistant Agricultural Engineers as per the scheme of part IV of the Rules of 1960 were required to be filled in only on the basis of interview but since there were more number of candidates than available vacancies, the Commission adopted the procedure of examination in short listing of the candidates. Since they were not declared successful against the available number of vacancies, they could not appear for interview and eventually were not selected. The Commission ought to have called for the candidates in the ratio of 1:3 for the proposed selection. It was argued that Rule 22 of the Rules of 1960 provides for preparation of reserve list to the extent of 50% of the vacancies advertised and such reserve list containing 24 names was in fact prepared by Commission as per the information of the petitioners. The respondents are going to requisition the reserve list and fill in the vacancies which have arisen later on the basis of the reserve list and announcement to this effect has been made by the Agricultural Minister on the floor of the Legislative Assembly which has been published in the news-papers too. If the appointments are made from the reserve list in spite of the fact that the entire main list has been exhausted, the petitioners would suffer great prejudice inasmuch as their right to consideration for appointment against the vacancies which have arisen later would be defeated. According to the learned counsel, even if a reserve list has been prepared, then such reserve list can be made use of only in the eventuality of selected candidates having not joined or having left after joining within the validity period of the reserve list. No vacancy which has become available after the advertisement during the process of selection can be allowed to be filled in on the basis of reserve list. It has been therefore prayed that the respondents be restrained from proceeding to fill up further vacancies on the posts of Assistant Agricultural Engineers on the basis of the reserve list. A diametrically opposite prayer has been made by the petitioners Ashok Kumar Thayya and others in WP No.5143/98 seeking a direction to the respondents to requisition and operate the reserve list for making further appointments on that basis. Shri Mahendra Singh, learned counsel appearing for the petitioners in that writ petition and respondents No. 2 to 6 in WP No.4034/98 argued that appointments are required to be made on the basis of reserve list to over come the difficulty of break down in the rule of quota and rota and in order to maintain the ratio from time to time between promotees and direct recruits in such appointments as prescribed by the Rules. It was argued that the cadre of Assistant Agricultural Engineers at the relevant point of time had strength of 265 posts. Till 1971 all such posts were required to be filled in 100% by promotion but only nine promotions were made uptil then. During the period from 1972 to 1984, the ratio prescribed under the Rajasthan Agricultural Service Rule 1960 for the post of Assistant Agriculture Engineer was 75% by direct recruitment and 25% by promotion. During this period 69 vacancies were determined from time to time. As per then prescribed ratio only 24 vacancies could have been filled in by promotion but 45 persons came to be promoted. Thus 21 promotions were made in excess of the prescribed ratio. Shri Mahendra Singh, learned counsel while referring to the existing posts on 1-4-1996 argued that there were 92 promotees but only 54 direct recruits as on that date. Thus, there was a clear backlog of 38 vacancies so far as the direct recruitment quota is concerned. During this period, 52 new posts were created and 34 vacancies arose on account of promotions made from the post of Assistant Agriculture Engineer. But 38 vacancies were filled in by promotion during the year 1996-97 and 33 vacancies were filled in through promotion during the year 1997-98. Thus, there was a significant distortion and imbalance in the prescribed ratio. It was in this scenario that the Government sent a communication dated 23-7-98 to the Director, Agricultural Department inquiring about the available vacancies and on receipt of the information took a policy decision vide letter dated 31-7-98 to fill up the existing vacancies by requisitioning the names from reserve list. While initially this court passed an interim order on 7-9-98 in Writ Petition No.4034/98 filed by Parmanand Chaturvedi & Others restraining the Government from making any appointment from reserved list. This order was later modified on 17-9-98 to say that the rights of the persons who were included in the reserve list will not be adversely affected on account of stay order. Learned counsel relied on the judgments of Hon'ble Supreme Court in State of J & K v/s Sanjeev Kumar (2005) 4 SCC 148, Secretary APPSC V/s B. Swapna (2005) 4 SCC 154 and this court in Dr. Mathuralal v/s State of Rajasthan 1995 (3) WLC 723. Shri Mahendra Singh further argued that the petitioners have got a legitimate right to claim appointment on the basis of their inclusion in the reserve list which cannot be defeated just because of lapse of time. He therefore prayed that the writ petitions filed by Pramenand Chaturvedi and Rajeev Kulshreshtha be dismissed and that of Ashok Kumar Thayya & others be allowed. ;