IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR
D.B. Writ Miscellaneous Application No. 481 / 2016
in
DB Civil Writ Petition No.1645/2016

1. Captain Gurvinder Singh (Retd.) S/o Sardar Gurbax Singh,

Aged About 56 Years, H.No. 8, Sadul Colony, Bikaner C/o G-II-81,
Bajaj Nagar Apartments, Jaipur

2. N.K. Jhamar S/o Shri S.M. Jhamar, Aged About 57 Years, B-76,
Chhatri Yojna, Vaishali Nagar, Ajmer

3. Yogendra Rathore S/o Shri Ram Singh Rathore, Aged About 50

Years, 68, Bhartendu Nagar, Khatipura, Jaipur

4. Samta Aandolan Samiti Through Its President Shri Parashar

Narayan Sharma S/o Shri K.L. Sharma, G-3, Sangam Residency,
Plot No. 9-10, Gangaram Ki Dhani, Vaishali Nagar, Jaipur (Raj.)

----Petitioners
Versus
1. State of Rajasthan Through Chief Secretary,, Government of
Rajasthan, Secretariat, Jaipur

2. Additional Chief Secretary, Department of Social Justice and

Empowerment, Secretariat, Jaipur

3. Principal Secretary, Department of Personal, Government of

Rajasthan, Secretariat, Jaipur

4. Rajasthan State Backward Classes Commission Through

Member Secretary, A-46, Shanti Path, Tilak Nagar, Jaipur

----Respondents
__________________________________________________
Counsel For applicant-respondents: Mr Tushar Mehta, Additional
Solicitor General with Mr Saransh
Kumar

Mr NM Lodha, Advocate General, State of Rajasthan with Mr

Deepak Bishnoi
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[WMAP-481/2016]

Mr Shiv Mangal Sharma, Additional Advocate General for the State

of Rajasthan

Mr Rajendra Prasad, Additional Advocate General with Mr Surya

Pratap Singh and Mr Madhu
Sudan Sharma

Counsel For non-applicant-petitioner: Mr Shobhit Tiwari with Mr

Divesh Sharma, Mr Pushpendra
Singh Tanwar and Mr Ankit Sethi

__________________________________________________
HON'BLE MR. JUSTICE M.N. BHANDARI

HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA

Order
22/12/2016

Heard on the misc. application.

Mr Tushar Mehta, learned Additional Solicitor General

appearing for the applicants-respondents No.1 to 3, prays for

suspension of the judgment dated 9.12.2016 for a period of one

month or for such reasonable period, as this court may deem just

and proper in the facts and circumstances of the case. It is to

enable the applicants to invoke appellate jurisdiction of the Apex

Court in the meantime.

Learned Additional Solicitor General submits that in the

judgment dated 9.12.2016, an important constitutional issue is

involved thus the State Government has decided to approach the

Supreme Court, however, filing of the Special Leave Petition (SLP)

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[WMAP-481/2016]

would take time thus application to suspend operation of the

judgment dated 9.12.2016 was filed on 12.12.2016 itself.

He further submits that process of recruitment was

started but appointments cannot be made with the benefit of

reservation pursuant to the Rajasthan Special Backward Classes

(Reservation of Seats in Educational Institutions in the State and

of Appointments and Posts in Services under the State) Act, 2015

(for short the Act of 2015) unless the operation of the judgment

is suspended.

Learned counsel for the non-applicants-petitioners Mr

Shobhit Tiwari has opposed the application. It is submitted that

the judgment in the case was pronounced on 9.12.2016. The

State Government was having sufficient time to approach the

Supreme Court but, instead of filing SLP, misc application has

been filed before this court to seek suspension of the judgment

enabling the State Government to make further appointments/

admissions. If the operation of the judgment is suspended

followed by appointments/ admissions, it would create

complications. The Apex Court may decline an interim order in

favour of the State Government as had happened against the

order passed by Bombay High Court, then any appointment/

admission made during the intervening period of suspension of the

judgment cannot be continued after declaring the Act of 2015 to

be unconstitutional. In view of the above, operation of the

judgment may not be suspended.

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[WMAP-481/2016]

It is further submitted that constitutional validity of the

Act of 2015 has already been adjudicated thus suspension of the

judgment would be nothing but reviving an unconstitutional Act.

The prayer is made to dismiss the misc application.

We have considered rival submissions of the parties

and perused the record besides the order dated 9.9.2016 passed

by the Apex Court in the case of State of Gujarat & ors versus Ms

Dulari Mahesh Basarge & anr, Petition for Special Leave to Appeal

(C ) No(s). 23544-23547/2016 so as the order dated 4.8.2016,

passed by the High Court of Gujarat in the case of Dayaram

Khemkaran Verma s/o Khemkaran Verma versus State of Gujarat,

Writ Petition (PIL) No.108 of 2016 and other connected matters.

The perusal of the misc application shows efforts of the

State Government to make further appointments/ admissions

pursuant to the advertisement/s issued during the intervening

period of litigation. If operation of the judgment is suspended for

the aforesaid, it would not be proper after declaring the Act of

2015 to be unconstitutional. It is more so when this court has

noticed a similar issue of reservation, where a detailed order was

passed by Bombay High Court to stay the reservation, the Apex

Court did not pass interim order therein.

We are, however, informed that before pronouncing the

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[WMAP-481/2016]

judgment dated 9.12.2016, appointments/ admissions were made

thus we intend to dispose of this misc application in the light of

the order passed by the Apex Court in the case of Ms Dulari

Mahesh Basarge & anr (supra), wherein, following order was

passed -

pending further orders, we direct that the admissions

made to any educational institution prior to the
pronouncement of the impugned order shall not be
disturbed. We make it clear that since the impugned
Ordinance has been struck down by the High Court, no
further action towards implementation of the reservation
made under the said Ordinance can be taken qua
education and service matters.

In view of the aforesaid, this misc application is

disposed of with a direction that any admission in the educational

institutions or the appointment in service prior to the judgment of

this court dated 9.12.2016 would not be disturbed for a period of

six weeks.

(JAINENDRA KUMAR RANKA)J. (M.N. BHANDARI)J.

bnsharma