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2019 Supreme(Raj) 733
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
S. Ravindra Bhat, Prakash Gupta, JJ.
State of Rajasthan and Ors. - Appellants
Vs.
Om Prakash Chhipa and Ors. - Respondents
D.B. Special Appeal Writ Nos. 68, 67 and 69 of 2019
Decided On : 19-07-2019
For the Appellant : M.S. Singhvi, AG assisted by C.L. Saini, AAG, Darsh Pareek, Raunak Singhvi and Sheetanshu Sharma
For the Respondents: S.N. Kumawat
The concept of migration of reserved category candidates cannot be an endless affair and is not a source of recruitment but a method to ensure that a candidate claiming the benefit of reservation, who secures a sufficiently high place on the merit list, is shifted to the open category to accommodate another candidate of his category claiming reservation.
Headnote:
MIGRATION OF RESERVED CATEGORY CANDIDATES - CUT OFF MARKS - RE-OPENING OF SELECTION PROCESS - LACHES - CONCEALMENT OF MATERIAL FACTS - RES JUDICATA - CATEGORY OF CANDIDATES APPOINTED - FINALIZATION OF SELECTION LIST - APPOINTMENTS MADE - DELAY IN APPROACHING COURT - REVIEW OF SELECTION LIST - MIGRATION OF OBC CANDIDATES TO OPEN CATEGORY - APPOINTMENT OF ADDITIONAL CANDIDATES DUE TO COURT ORDERS - CALCULATION OF MERIT POSITION - REJECTION OF EARLIER WRIT PETITION - FINITENESS OF MIGRATION PROCEDURE - APPLICABILITY OF RATIO IN R.K. SABHARWAL V. STATE OF PUNJAB - ENABLING PROVISION OF ARTICLE 16(4) OF THE CONSTITUTION - SOLE POWER OF STATE GOVERNMENT TO DECIDE ON RESERVATIONS - IMPERMISSIBILITY OF FRESH ROUND OF MIGRATION - GUILT OF LACHES AND CONCEALMENT OF MATERIAL FACTS - SETTING ASIDE OF IMPUGNED JUDGMENT AND ORDERS - ALLOWANCE OF STATE'S APPEALS.
Fact of the Case:
The State of Rajasthan advertised 1590 posts of Prabodhaks in 2008. The selection process was completed in 2009, and appointments were made soon after. In 2015, three OBC candidates (writ petitioners) approached the court, claiming that the cut-off marks for open category candidates had dropped from 53% to 43%, and sought a direction to the State to arrange the select list by including candidates who had secured 43% or more marks in the open category and then migrate the OBC and other reserved categories securing that cut-off or above, into the general category. The Single Judge allowed the writ petitions, directing the State to arrange the list in the manner indicated and draw a fresh list of OBC category candidates. The State filed review petitions, which were dismissed by the Single Judge. The State then filed appeals challenging the Single Judge's orders.
Finding of the Court:
The court found that the Single Judge erred in directing the State to re-open the selection process and work out the merit position of the writ petitioners. The court held that the process of selection and filling of vacancies had ended by the time the writ petitioners approached the court in 2015, and there was no evidence to support their claim that the cut-off marks had dropped to 43%. The court also found that the writ petitioners had concealed the fact that they had filed a writ petition earlier, which was rejected by the Principal Seat at Jodhpur in 2014, on the same grounds. The court further held that the concept of migration of reserved category candidates cannot be an endless affair and that it is not a source of recruitment but a method to ensure that a candidate claiming the benefit of reservation, who secures a sufficiently high place on the merit list, is shifted to the open category to accommodate another candidate of his category claiming reservation. The court also held that the petitioners were guilty of laches and concealment of material facts, which disentitled them to relief.
Issues: 1. Whether the Single Judge erred in directing the State to re-open the selection process and work out the merit position of the writ petitioners? 2. Whether there was evidence to support the writ petitioners' claim that the cut-off marks had dropped to 43%? 3. Whether the writ petitioners had concealed the fact that they had filed a writ petition earlier, which was rejected by the Principal Seat at Jodhpur in 2014, on the same grounds? 4. Whether the concept of migration of reserved category candidates can be an endless affair? 5. Whether the petitioners were guilty of laches and concealment of material facts?
Ratio Decidendi: 1. The process of selection and filling of vacancies had ended by the time the writ petitioners approached the court in 2015. 2. There was no evidence to support the writ petitioners' claim that the cut-off marks had dropped to 43%. 3. The writ petitioners had concealed the fact that they had filed a writ petition earlier, which was rejected by the Principal Seat at Jodhpur in 2014, on the same grounds. 4. The concept of migration of reserved category candidates cannot be an endless affair. 5. The petitioners were guilty of laches and concealment of material facts.
Final Decision: The court set aside the impugned judgment and orders, allowed the State's appeals, and disposed of all pending applications.
JUDGMENT :
S. Ravindra Bhat, J.
1. This judgment disposes of three connected appeals which challenge the common judgment and order of a learned Single Judge whereby, the State of Rajasthan's (hereafter "the State") review petitions were dismissed and the earlier directions, made by the Single Judge, left undisturbed.
2. Brief facts are that an advertisement dated 31/05/2008 was issued by the State through the District Education Officer, Bhilwara inviting applications to fill up 1590 posts of Prabodhaks. It is not in dispute that these selections were conducted over 10 years ago and the appointments were made about a decade ago. The respondents in these petitions (i.e. original writ petitioners) approached this Court, by filing SBCWP Nos. 5125/2015, 5126/2015 and 5227/2015. Those writ petitions sought a direction to the State to arrange the select list by including candidates who had secured 43% marks or more marks in the open category and then migrate the OBC and the other reserved categories securing that cut off or above, into the general category and for a further direction that a fresh list of OBC category candidates be drawn, having regard to the number of posts reserved.
3. The Single Judge noted that the cut off marks for open category candidates were 53 and that nevertheless on scrutiny, several candidates were found ineligible. In the first impugned order (i.e. 17/12/2015 allowing the writ petitions), the Single Judge held that candidates were invited after despite their securing marks below the cut off marks i.e. 53%. It was further held that the last candidate selected in the open category secured 43% marks. It was in these circumstances that the single judge - by the first original impugned judgment held that "migration of OBC and other reserved categories candidates have been permitted if they secured 43 or more marks" and a list of OBC category candidates was drawn thereupon. Based upon these assumptions, the Single Judge directed as follows:-
"It is not in dispute that the cut off marks for open category is now 43 percent and as per the settled law, those reserve caste candidates possess more marks than the last candidate in the open category, needs to be migrated in the open category. The list of OBC and SC/ST candidates is to be drawn thereupon to the extent of reservation.
In the light of the aforesaid, these writ petitions are allowed with the direction to the respondents to arrange the list in the manner indicated herein above and for clarification, it is again directed that after drawing the merit list of open category, which include every candidate if secured 43 percent or more marks, they would draw the merit list of OBC and other reserve caste category. The post meant for OBC candidate would be filled by drawing the merit list to the size of the post reserved for them and if the petitioners find place in the merit list to the size of the vacancies and otherwise eligible, they would be given appointment within a period of one month from the date of receipt of copy of this order."
4. The State approached the Single Judge in review proceedings, contending that the petitioner (Omprakash, in SBCWP No. 5125/2015 and two others) had approached the Principal Seat at Jodhpur, whereby his petition (SBCWP No. 7510/2010) was rejected on 15/01/2014. The main ground on which the petitioner had approached the court was that the rules did not postulate minimum marks for selection and, therefore, the rejection of his candidature was improper. It was further stated that the petitioners' name found place at Sr. Nos. 1427, 1424 and 1418 but ignoring their candidature one Kailash Chand Koli at Sr. No. 1447 was appointed. The appellant refuted this allegation contending that whereas the petitioners belong to Other Backward Class (OBC Category) Kailash Chand Koli belonged to the SC category. On the basis of the submissions and having regard to the pleadings the court noticed that two petitioners had obtained only 21 and one had obta
