Dr. Pushpendra Singh Bhati, J. - (1.) This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: "(i) The respondents may kindly be directed to provide the appointment to the petitioner for the posts of Commercial Assistant Gr II in TSP Area unreserved category. (ii) That second select list may kindly be quashed and respondent may kindly be directed to declare the result for the post as per category advertised in advertisement. (iii) Any other favourable to the petitioner may also be passed. (iv) Costs of the writ petition may kindly be awarded to the petitioner."
(2.) Learned counsel for the parties agree that the matter is covered by the judgment of this Court in Sudeep Gawadia and Ors. v. Ajmer Vidhyut Vitaran Nigam Ltd. and Anr. (S.B. Civil Writ Petition No. 4076/2012 decided on 16.01.2018) , which reads as under:- "1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: "i) That the respondents may be directed to appoint the petitioners on the post of Commercial Assistant-II with all consequential benefits w.e.f. the first candidates appointed on the post of Commercial Assistant-II under TSP category; and ii) That the respondents may be directed to consider the petitioners eligible and selected for the post of Commercial Assistant-II and appoint them accordingly; and iii) Any other relief which this Hon'ble Court deem just and proper in the facts and circumstances of the case may kindly be extended in favour of the petitioner. iv) Cost of the writ petition may kindly be awarded to the petitioner." 2. The brief facts of this case, as noticed by this Court, are that the respondents initiated the selection process for recruitment to the posts of Commercial Assistant-I and Commercial Assistant II vide advertisement dated 06.09.2011, which is Annexure-1 of the writ petition. 3. The respondents advertised the vacancies by bifurcating the same for each category collectively for the three companies, namely, Jaipur Vidhyut Vitaran Nigam Ltd., Ajmer Vidhyut Vitaran Nigam Ltd. and Jodhpur Vidhyut Vitaran Nigam Ltd. 4. The petitioners, who were qualified and eligible, participated in the joint selection process for Commercial Assistant-I and Commercial Assistant-II, in which the candidates higher in merit were to be given appointment as Commercial Assistant-I and the candidates coming subsequently in the merit were to be appointed as Commercial Assistant-II. 5. The total controversy is that the advertisement contained a condition, as per which the TSP General Category candidates were to be given preference. The same benefit was extended to the Commercial Assistant-I, while issuing their appointment orders. But when the appointments were to be extended to the Commercial Assistant-II, the merit list did not contain the category of unreserved TSP to be filled by local TSP General Category candidates. 6. Learned counsel for the petitioners has submitted that the reservation for General TSP area was to be made applicable as per the conditions of the advertisement. Learned counsel for the petitioners also stated that such reservation has already been implemented by the respondents for the Commercial Assistant-I. 7. Learned counsel for the petitioners further stated that such implementation is in violation of Articles 14 and 16 of the Constitution of India, and the same TSP General Category benefit in accordance with the advertisement also ought to be given to the Commercial Assistant-II. The petitioners, who were expecting selection in the unreserved TSP General Category, were deprived of their precious rights because of non-implementation of the General TSP preference not being extended in the appointment of Commercial Assistant-II. S.B. Civil Writ Petition No. 4076/2012 (Sudeep and Ors. v. Ajmer Vidhyut Vitran Nigam Ltd. and Anr. decided on 24.01.2014) filed by the petitioners in this regard was dismissed, after hearing the learned counsel for the parties. The said order dated 24.01.2014 reads as under:- "Heard learned counsel for the parties. Admittedly, for TSP area, notification has been issued for providing reservation to the SC/ST candidates upto 45% and no reservation is provided for general candidates of TSP area, therefore, if any appointment has been made by the respondent for the post of Commercial Assistant Grade-I and II to the General category candidates while giving benefits of reservation of TSP area, such appointment is in contravention to the constitutional provisions. The petitioners are claiming appointment solely on the ground that in case of petitioners for appointment on the post of Commercial Assistant-I, the respondents are not considering their case for appointment at par with those candidates who were provided appointment on the post of Commercial Assistant Grade-II, therefore, direction may be issued to the respondents to grant same benefits to the petitioners. In the opinion of this Court, reservation for general candidates is not permissible in law for the TSP area, therefore, if any appointment has been made under the reservation to the candidates of General category on that basis petitioners cannot claim appointment as a matter of right because there is no such reservation provided for general candidates of TSP area. In view of above, this writ petition is hereby dismissed but the respondents are directed to prepare a fresh merit list of the general candidates for the post of Commercial Assistant Grade-I and II and consider the case of the petitioners in the general category and if it is found that the petitioners are within merit, their case may also be considered for appointment. Admittedly, no reservation for the general category of TSP area is provided, therefore, the respondents shall not fill up any vacancy in pursuance of the advertisement under the general category of TSP area while granting benefit of reservation to the general candidates. It is made clear that if any appointment have been made in contravention of the constitutional provisions under reservation policy to the general candidates of TSP area then such appointments should be cancelled after providing opportunity of hearing to the concerned candidates." 8. However, the aforesaid matter was remanded back vide order dated 19.08.2015 passed by the Division Bench of this Hon'ble Court in D.B. Civil Special Appeal No. 495/2014, operative portion of which reads as under:- "We are unable to appreciate as to how any direction could be given by the learned Single Judge after dismissing the writ petition. The directions are also not clear for compliance and that any directions, which may affect the selections of the candidates, could not have been given, until the candidates affected by the decision, were impleaded as party respondents to the writ petition. In view of the above, the Special Appeal is allowed. The matter is remanded to the learned Single Judge to decide it afresh in accordance with law. 9. Learned counsel for the petitioners has drawn the attention of this Court towards the three circulars, which are of the years 2007, 2013 and 2016, and that have implemented the conditions for the TSP reservation. 10. Learned counsel for the petitioners has submitted that the 2013 and 2016 circulars provide for such preference to the General Category TSP candidates and the same has a retrospective effect, as they are clarificatory in nature. 11. Learned counsel for the petitioners states that in case the respondents take a plea of wrongful implementation of the TSP criteria in pursuance of the circular of the year 2007, then the respondents ought to have come clean by undoing the wrong done for the post of Commercial Assistant-I. 12. Learned counsel for the respondents, on the other hand, has specifically submitted that the 2013 and 2016 circulars will not have any retrospective effect and the circular governing the field is Annexure-B/2 dated 18.09.2017, which reads as follows: 13. Clearly, the aforesaid circular does not provide for any preference, except for 45% reservation for the Scheduled Tribe candidates and 5% reservation for the Scheduled Caste candidates belonging to the said area. 14. Learned counsel for the respondents has shown from the reply a clear stand taken by the respondents, which explained that the unreserved TSP category was not a category and in the form, there was column printed for unreserved TSP category, and inadvertently, in the result declared online, the cut off marks for unreserved TSP were shown; but the fact remains that the unreserved TSP is no category of reservation and the persons under unreserved TSP category also comes under the General Category, irrespective of their belonging to the TSP or Non-TSP area. 15. Learned counsel for the respondents has further shown from the reply that the stand of the respondents is clear regarding the mistake, which has been rectified by the respondents and the persons, according to the category and cut off marks, have been given appointment. Learned counsel for the respondents further submitted that the petitioners are claiming right through the unreserved TSP Category, but such category is in fact non-existent. 16. Learned counsel for the respondents thus, has shown that the extension of preference to TSP local residents in the General Category for appointment on the post of Commercial Assistant-I, was nothing but a mistake committed by the respondents; but the illegality cannot be perpetuated by continuing the mistake, even when the respondents have realized the same. 17. After hearing the learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that the core law for implementation of TSP reservation in pursuance of Article 244 of the Constitution of India is by circulars issued by the respondent-State from time to time. The last three circulars governing the field are of the years 2007, 2013 and 2016. 18. The circulars issued in the years 2013 and 2016, on perusal, do not contain anything, which would suggest that the same have the retrospective effect. It is however, clear from the subsequently circulars that TSP General Category has been made a preferential category and 50% reservation has been extended to them, where only those candidates belonging to those TSP Area are given appointments; the same is alongwith 45% reservation for the Scheduled Tribe and 5% reservation for the Scheduled Caste TSP residents. 19. Since the advertisement was issued on 06.09.2011, therefore, there cannot be two opinions that the circular dated 18.09.2007 shall be prevailing for the current selection exercise, and the circular only provides for 45% reservation to the Scheduled Tribe TSP area candidates and 5% reservation to the Scheduled Caste TSP area candidates. The circular does not provide for any kind of preference to the local residents of the TSP area in General Category. Since the law itself is specific in providing such preference and reservation, therefore, any condition in the advertisement beyond law cannot be accepted. 20. Acceptance of the respondents in implementing the TSP General reservation for Commercial Assistant-I is admittedly an erroneous exercise and does not call for any parity for the same to be made applicable upon the rest of the exercise of Commercial Assistant-II. 21. In light of the aforesaid observations, no interference is called for in the present writ petition, and the same is accordingly dismissed."
(3.) In light of the aforequoted judgment, the present writ petition is also dismissed in the same terms.;