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2018 Supreme(Raj) 1088

IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Veerendr Singh Siradhana, J.
Sunil – Appellant
Versus
State of Rajasthan through Principal Secretary – Respondent
Civil Writ Nos. 918 of 2013, 8090 of 2016, 11261, 23082 of 2017, 11208, 11904, 12233, 12270, 12512, 12621, 12655, 12762, 12764, 12793, 12805, 12808, 12809, 12818, 12917, 12957, 12993, 13016, 13020, 13026, 13118, 13168, 13173 of 2018
Decided On : 07-09-2018

Headnote:

RECRUITMENT - SAFAI KARAMCHARI - LOTTERY SYSTEM - VALIDITY - VACANCIES RESERVED FOR SCHEDULED CASTE - CONSIDERATION OF SCHEDULED CASTE CANDIDATES AGAINST OPEN/GENERAL CATEGORY VACANCIES - WITHDRAWAL OF UNFILLED VACANCIES OF 2012 SELECTION PROCESS AND INCLUSION IN 2018 SELECTION PROCESS - LEGALITY - PREFERENCE TO MANUAL SCAVENGERS IN SELECTION PROCESS - LEGALITY.

Fact of the Case:

The State Government issued an advertisement inviting applications for the post of Safai Karamchari, withdrawing the earlier advertisement. The candidature of the participating candidates of the recruitment of 2012 was to be considered in the new selection process initiated vide advertisement dated 13th April, 2018, allowing relaxation of age. Various grounds were raised challenging the recruitment process.

Finding of the Court:

1. The procedure for direct recruitment on the basis of Lottery system is valid and legal. 2. The vacancies year-marked for reserved category after having been filled up, the candidates of reserved category could be considered against Open/General category vacancies. 3. The left over vacancies of the selection process of year 2012, to the extent where appointments could not be made, could be withdrawn and included in the selection process of year 2018. 4. The manual scavengers were/are not entitled for preference in the selection process.

Issues: 1. Whether the procedure for direct recruitment on the basis of Lottery system, is valid and legal? 2. Whether the vacancies year-marked for reserved category after having been filled up, the candidates of reserved category could be considered against Open/General category vacancies? 3. Whether the left over vacancies of the selection process of year 2012, to the extent where appointments could not be made, could be withdrawn and included in the selection process of year 2018? 4. Whether the manual scavengers were/are not entitled for preference in the selection process?

Ratio Decidendi: 1. The Supreme Court in Akhil Bhartiya Valmiki Samaj Arakshan Samajik Shodh and Vikas Samiti held that the method of selection by lottery is not illegal. 2. The Supreme Court in Indira Sawhney vs. Union of India held that the reservations under Article 16(4) do not operate like a communal reservation. 3. The Supreme Court in Shankarsan Dash held that a candidate whose name appears in merit list, does not acquire any right for appointment. 4. The Division Bench of this Court in Akhil Bhartiya Valmiki Samaj Arakshan Samajik Shodh and Vikas Samiti held that the post of Safai Karamchari cannot be earmarked for one society or caste.

Final Decision: The writ applications were adjudicated upon on all the four issues, as answered herein-above.

JUDGMENT

1. Consented by the counsel for the parties, the batch of writ applications has been taken up together, at this stage, for final disposal by this common order, in view of the identicalness of questions of facts and law raised.

2. Shorn off unnecessary details, the essential skeletal material facts are: that the State-respondents vide advertisement dated 13th April, 2018, invited applications from eligible candidates for appointment to the post of Safai Karamchari withdrawing the earlier advertisement dated 25th May, 2012 and 31st May, 2012, to the extent of appointments not made, even after completion of selection process. However, the candidature of the participating candidates of recruitment of 2012, was to be considered in the new selection process initiated vide advertisement dated 13th April, 2018, allowing relaxation of age. The above noted writ applications have been instituted assailing the recruitment process initiated vide advertisement dated 13th April, 2018, on various grounds. In view of the pleadings of the parties; the controversy projected in the writ applications can, broadly, be classified into five issues, which needs adjudication by this Court. The five issues that emerge for adjudication are:

(A) whether the procedure for direct recruitment on the basis of Lottery system, is valid and legal?

(B) whether the vacancies year-marked for reserved category after having been filled up, the candidates of reserved category could be considered against Open/General category vacancies?

(C) whether the left over vacancies of the selection process of year 2012, to the extent where appointments could not be made, could be withdrawn and included in the selection process of year 2018?

(D) whether the manual scavengers were/are not entitled for preference in the selection process?

3. In order to appreciate the controversy on the issues aforesaid; it will be profitable to take note of the singular factual matrix and circumstances of the case at hand, wherein recruitment to the post of Safai Karamchari, could not be made for a long time since 1992.

(i) A Coordinate Bench of this Court, while adjudicating upon SBCWP No. 1177/1992, Sushila Vs. State of Rajasthan & Ors. along with analogous matters, decided on 21st October, 1992, in the backdrop of claim of the petitioners therein for regularization and challenge to termination of their employment; while issuing the directions, made an order for selection on the basis of lottery system, relying upon earlier opinion of this court in the case of Rajasthan Dainik Vetan Bhogi Anshkalin Safai Mazdoor Sangathan and Ors. Vs. State of Rajasthan and Ors. 1992 (2) Raj LR 516, wherein it was observed that where no minimum qualification is required at all and all uneducated persons are eligible than the appointment in such a case could only be properly made by lottery system.

(ii) On 13 January, 2003, a circular was issued for selection on the basis of lottery. Be that as it may, in SBCWP No. 12234/2009, a Co-ordinate Bench of this Court stayed the appointment on the post of sweeper in favour of those who had worked for less than 240 days.

(iii) In the case of Shankar and Ors. Vs. State of Rajasthan and Ors. SBCWP No. 10715/2009, the circular dated 13th January, 2003, providing appointment by lottery system was depricated unless the statutory rules provided for such a procedure, and therefore, directed the respondents not to continue the process under the aforesaid circular.

4. It was in the aforesaid background, the recruitment process was initiated afresh vide advertisement No. 1/2012 dated 25th May, 2012, and advertisement No. 2/2012 dated 31st May, 2012; for recruitment on the post of Safai Karamcharies. The vacancies initially advertised were subsequently increased. On 3rd May, 2013, the State Respondents decided to fill up 20,000 posts from amongst open category and Scheduled Cast









































































































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