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2018 Supreme(Raj) 334
IN THE HIGH COURT OF RAJASTHAN
ARUN BHANSALI, J.
Kailash Banjara - Appellant
Vs.
State of Rajasthan - Respondent
Civil Writ Petition No. 7873 of 2016
Decided On : 05-01-2018
For the Appellant : Mr. Kuldeep Mathur
For the Respondent: Mr. S.R. Paliwal, Mr. Pawan Singh
The benefit of reservation does not substitute or supplant any other right of a person belonging to SC, ST, and OBC, including the fundamental right of equality. Members belonging to SC, ST, and OBC cannot be asked to occupy only reserved posts and are free to occupy any posts, including unreserved posts, by proving their merit like any other citizen.
Headnote:
PROMOTION - RAJASTHAN FOREST SUBORDINATE SERVICE RULES, 1963 - RULE 12 - SENIORITY-CUM-MERIT - SCHEDULED CASTE CATEGORY - PROMOTION DENIED TO SENIOR CANDIDATE DUE TO EXHAUSTION OF VACANCIES IN RESERVED CATEGORY - HELD, DENIAL OF PROMOTION IS ILLEGAL AND UNCONSTITUTIONAL.
Fact of the Case:
Petitioner, a Scheduled Caste candidate appointed as Forest Guard in 1982 and promoted to Assistant Forester in 2010, was denied promotion to Forester in 2016 despite being senior to the promoted candidate, respondent No. 5. The respondents justified the denial on the ground that there were no vacancies in the Scheduled Caste category and that the petitioner could only be considered for promotion against a vacancy in that category.
Finding of the Court:
The court held that the respondents' action in denying promotion to the petitioner was illegal and unconstitutional. It relied on the judgment of this Court in Sohan Lal Verma & Anr. v. Board of Revenue, Rajasthan, Ajmer : S.B. Civil Writ Petition No. 2325/2013 decided on 6/5/2014 at Jaipur Bench, which held that the benefit of reservation does not substitute or supplant any other right of a person belonging to SC, ST, and OBC, including the fundamental right of equality. The court further held that members belonging to SC, ST, and OBC cannot be asked to occupy only reserved posts and are free to occupy any posts, including unreserved posts, by proving their merit like any other citizen.
Issues: Whether the denial of promotion to the petitioner, a senior candidate belonging to the Scheduled Caste category, due to the exhaustion of vacancies in the reserved category is legal and constitutional.
Ratio Decidendi: The court held that the respondents' action in denying promotion to the petitioner was illegal and unconstitutional because: * The benefit of reservation does not substitute or supplant any other right of a person belonging to SC, ST, and OBC, including the fundamental right of equality. * Members belonging to SC, ST, and OBC cannot be asked to occupy only reserved posts and are free to occupy any posts, including unreserved posts, by proving their merit like any other citizen. * The petitioner had the right to be considered for promotion against unreserved posts and could not be denied consideration only because the vacancies meant for his category stood exhausted.
Final Decision: The court allowed the writ petition and directed the respondents to consider the petitioner's case for promotion as per his seniority and promote him immediately if found suitable, from the date his junior (respondent No. 5) was given promotion. The needful was to be done within three months from the date a copy of the judgment was produced before the respondents.
Arun Bhansali, J.
Though no reply to the writ petition has been filed, learned counsel for the respondents submits that the stand of the respondents is reflected in reply to the notice (Annex.7) and, therefore, the writ petition may be finally heard and decided.
2. This writ petition has been filed by the petitioner aggrieved against the order dated 23/5/2016 (Annex.6) passed by the respondents, whereby, the persons named therein have been promoted from the post of Assistant Forester to the post of Forester against the vacancies of the year 2016-17.
3. The petitioner was initially appointed on the post of Forest Guard in the respondent Department as a Scheduled Caste category candidate on 6/2/1982; he was promoted to the post of Assistant Forester on 31/8/2010. As Assistant Forester, the petitioner was eligible for promotion to the post of Forester in terms of Rajasthan Forest Subordinate Service Rules, 1963 ('the Rules'), wherein, the criteria is seniority-cum-merit. The respondent No. 3 issued a seniority list of Assistant Forester (Annex.4) and in the said seniority list the name of the petitioner appears at serial No. 3, whereas, the name of respondent No. 5 appears at serial No. 10, as the dates of appointment and promotion of the petitioner are 10.2.1982/1.8.2010, whereas that of respondent No. 5 are 22.12.1983/15.12.2012.
4. It is alleged that the respondents ignoring the claim of the petitioner for promotion vide order dated 23/5/2016 (Annex.6) have promoted the respondent No. 5 on the post of Forester from the post of Assistant Forester. When the petitioner questioned the non-grant of promotion by way of notice through counsel, vide Annex.7 it was informed that presently the Department is having adequate Scheduled Caste candidates on the post of Forester and, therefore, the petitioner has not been considered for promotion as he would be considered for promotion only against the vacancy of Scheduled Caste category when the same falls vacant.
5. It is submitted by learned counsel for the petitioner that the action of the respondents is ex facie illegal inasmuch as the petitioner is admittedly senior to respondent No. 5, who has been accorded promotion by the impugned order and irrespective of the category to which the petitioner belongs, as the petitioner falls in seniority he was bound to be considered for promotion to the post of Forester against the vacancies of the year 2016-17, therefore, the order impugned deserves to be quashed and set aside.
6. Reliance was placed on the judgment of this Court in case of Sohan Lal Verma & Anr. v. Board of Revenue, Rajasthan, Ajmer : S.B. Civil Writ Petition No. 2325/2013 decided on 6/5/2014 at Jaipur Bench.
7. Learned counsel for the respondent Department supported the order impugned. It was submitted that as the petitioner belongs to Scheduled Caste category and as there was no vacancy in the said category in the cadre of Forester, the petitioner was rightly refused promotion to the said post of Forester. However, it is denied that the petitioner is senior to respondent No. 5. Learned counsel appearing for the respondent No. 5 adopted the submissions made by learned counsel for the State and submitted that the writ petition deserves to be dismissed.
8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
9. As noticed hereinbefore, there is no dispute between the parties that the petitioner is senior to respondent No. 5 and is otherwise eligible for being promoted from the post of Assistant Forester to the post of Forester against the vacancies of the year 2016-17, however, the respondents have denied promotion to the petitioner despite seniority though the criteria for promotion is seniority-cum-merit, only on account of the fact that as there was 16% reservation for Scheduled Caste category, the promotion could only be given as per the said percentage and even though the petitioner comes in seniority but as
