AR. Lakshmanan, C.J.

1. This writ petition was filed by a practicing Advocate at Jaipur Bench of Rajasthan High Court with the following prayer:

(i) Issue an appropriate writ, order or direction directing the RPSC to prepare a list of candidate to the main examination by accommodating all reserved category candidates first in the general category if such candidates secured position in the general category on their merit standing and thereafter prepare a list for the reserved category candidates including the OBC category;

(ii) declaring the part of Rule 15 of the Rules that permits preparation of the list of candidates to be admitted to the main examination from the candidates who were taken the preliminary examination category wise as violative of Articles 14, 15, 16 and 21 of the Constitution of India.

2. It is stated that this writ petition was filed in public interest so as to protect the interest of other backward classes to ensure that benefit of reservation to OBC category is not denied to them. It is claimed that the petitioner has been associated with the movement for protection of the interest of other backward class of the State.

3. The other writ petitions were filed by petitioners who are members of the other backward class community (OBC) who have submitted their application as members of the OBC for the current preliminary examination held by the Rajasthan Public Service Commission (hereinafter referred as the RPSC). It is stated that these writ petitions were filed by the petitioners challenging the action of the RPSC under which for the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1999 (hereinafter referred as the Rules of 1999) lists have been drawn for admission to the main examination in terms of Rule 15 of the Rules. The main grievance of the petitioners is that the RPSC has interpreted Rule 15 in a manner that has turned out to be highly oppressive to the interest of the reserved category i.e. SC, ST and OBC. It is stated that the grave injustice done to the SC, ST and OBC can be appreciated from the fact that while a general category candidate securing 203 marks has been admitted to the main examination, the OBC candidates securing 203 marks have been denied admission to the main examination. It is stated that the RPSC has prepared the list category wise in a manner that the list of general category candidates has been prepared excluding the entire reserved category notwithstanding the fact that reserved category candidates on account of their merit standing can be positioned in the general category. A direct consequence of this is that the RPSC has brought about a positive reservation of 51% in favour of the unreserved category. Such reservation in favour of unreserved category amounts to massive affirmative action in favour of general category which is constitutionally impermissible as it violates the mandate of Articles 14 and 16 of the Constitution of India. It is also further alleged that the reservation in favour of general category is constitutionally not envisaged and on that account also, the RPSC action cannot be sustained.

4. The examination of 1999 is being organised by the RPSC in terms of Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examinations), Rules, 1999. The preliminary examination came to be held on 20.11.1999 and in respect of some papers it was held on March 12, 2000. The result of the preliminary examination came to be declared on 27.5.2000. The RPSC has permitted a general category candidate securing 203 marks to be admitted to main examination. However, in respect of OBC category, a candidate securing 203 marks or less has been denied admission to main examination. The cut-off marks for the general category has been reckoned 203 marks while for OBC category, the same has reckoned as 204 marks. It is, therefore, submitted that the action of the RPSC. ruins down the very concept of reservation.

5. Rule 15 of the Rules of 1999 is reproduced hereunder:

15. Scheme of Examination, Personality and Viva-voce Test: The Competitive Examination shall be conducted by the Commission in two stage i.e. Preliminary Examination and Main Examination as per the scheme specified in Schedule-III. The marks obtained in the Preliminary Examination by the candidates, are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (category wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for any lower range will be admitted to the Main Examination.

Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service candidates having "C" Certificate of N.C.C. will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate.

Provided that the commission, on intimation being received from the Government before declaration of the result of the Preliminary Examination, may increase or decrease the number of vacancies advertised.

6. According to the petitioners the rational interpretation of Rule 15 require that all reserved category candidates who secured place in the merit list on the strength of their merit deserve to be counted in the general category. In D.B. Civil Writ Petition No.3346/2000, the following questions of law have been raised:

(i) Whether it is permissible for the R.P.S.C. to draw a list in terms of Rule 15 by excluding reserved category from general category notwithstanding the fact that reserve category persons on their merit standing find placement in general category

(ii) Whether it is permissible for the R.P.S.C. to have a higher cut off standard for the OBC as compare to the general category

(Ill) Whether it is constitutionally permissible for the R.P.S.C. to operate Rule 15 in a manner that disadvantaged sections, reserved category (OBC) is made to suffer handicaps on account of reservation as compare to general category

(iv) Whether Rule 15 as interpreted by R.P.S. Cr is unconstitutional has offended Articles 14, 15(4) and 16(4) of the Constitution of India

(v) Whether Rule 15 as interpreted by R.P.S.C. is contrary to law Laid down by apex court

(vi) Whether general category can be codified as non-reserved category and excluded in all situations meritorious reserved category candidates and can find place in general category on their own merit standing

(vii) Whether the massive affirmative action in favour of general category (non-reserved category) is permissible under Articles 15 and 16 of the Constitution of India

7. In these circumstances, the public interest litigant - Advocate preferred the above public interest litigation so as to challenge the action of the RPSC under which list of candidates to be admitted to the main examination has been prepared category wise in which reserved category candidates, notwithstanding their merit, have been kept out from general category and interpretation-constitutional validity of Rule 15 to the extent Rule 15 permits category wise preparation of list by holding general category as consisting only of un-reserved category. The impugned action of the RPSC has been challenged as against the provisions of Articles 14, 15, 16 and 21 of the Constitution of India, It is also submitted that the Constitution provides for reservation in favour of SC/ST under Article 15(4)(A) and in favour of backward classes of citizens under Article 16(4) and 15(4) and that the principle of equity enshrined in Article 14 and 16(1) can be qualified by an affirmative action only in favour of SC/ST and backward class citizens and for no other category much less the unreserved category.

8. It is also urged that the reservation for the OBC category candidates is to the extent of 21% while the percentage of participating population in this category is much in excess of 21% and, therefore, the RPSC was required to prepare list on the same pattern on which the list is prepared in terms of Rule 17 of the Rules of 1999 while making recommendations to the Government.

Rule 17 of the Rules of 1999 runs thus:

17. Recommendation, of the Commission: (1) The Commission shall prepare for each Service, a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate. If two or more of such candidates obtain equal marks in the aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service:

Provided that the candidate(s) belonging to the Other Backward Classes/Scheduled Castes/Scheduled Tribes, who get placement in the merit list as a result of special concession given to them in terms of "age" and "fees" or such other concession granted by the Government shall be counted against the reserved vacancies determined for the candidate belonging to the Other Backward Classes/Scheduled Castes/Scheduled Tribes irrespective of the marks obtained by them.

(2) The Commission, while giving weightage to the preference for the posts in the different services expressed by a candidate in his/her application, may recommend him/her for appointment to any post in any such service for which it considers him suitable.

(3) The list complied under this rule shall be immediately sent to the Government and also be published for general information.

9. In this view of the matter also it is submitted that the impugned action is not sustainable in law. The public interest litigation in WP 3346/2000 was argued by Mr, Jagdeep Dhankar Senior Advocate, and for some of the petitioners by Mr. Praveen Balwada, Mr. P.P. Singh, Mr. D.V. Tholia, Mr. Ajay Rastogi, Mr. Manish Bhandari, Mr. Ved Prakash, Mr. Rajendra Soni, Others have adopted the arguments of learned Sr. Advocate Mr. Jagdeep Dhankar. On behalf of the State of Rajasthan Mr. R.N. Mathur, Additional Advocate General was heard. Mr. J.P. Joshi assisted by Mr. S.N. Kumawat have addressed arguments on behalf of the RPSC. On behalf of the interveners Mr. A.K. Sharma and Mr. Bharat Vyas have argued the case.

10. On behalf of the State of Rajasthan and RPSC, separate reply affidavit have been filed. An additional affidavit dated 1.8.2000 was placed before the Bench by the RPSC for its perusal as directed vide order dated 28.7.2000 by a Division Bench. On 31.7.2000, when the matters were listed, it was suggested that pending final adjudication on the questions of law raised, it was suggested that since main examinations are scheduled to be held on 6.8.2000 for which intimation letters have already been issued to all those candidates who were successful and list whereof was prepared by the RPSC, that the candidates - students who have approached this Court be permitted to sit In the examination to be held on 6.8.2000 and that the result of the examination to be held on 6.8.2000 will not be declared without the permission of this Court. Mr. Jagdeep Dhankar, learned Counsel appearing for the public interest litigant submitted that since the RPSC has in general category excluded the entire reserved category notwithstanding merit, and that the OBC candidates having above cut-off marks compared to general candidates should be permitted to appear for the examination. Mr. Joshi, learned Counsel appearing for the RPSC was not agreeable to the said submission. Mr. Joshi submitted that if the reservation has to take place in accordance with the interpretation put forth by Mr. Jagdeep Dhankar, the cut-off marks in each category shall have to be revised and, therefore, such suggestion is impossible of performance at this stage. According to Mr. Joshi, the list of successful candidates has been prepared by the RPSC in terms of Rule 15 of the Rules of 1999 as interpreted by the Honble Supreme Court of India and as per the directions given by the Supreme Court in the case of Chattar Singh and Ors. v. State of Rajasthan and Ors., reported in : AIR1997SC303 and, therefore, it is impossible for the RPSC to postpone the examination to be held on 6.8.2000. Since there was no consensus, the learned senior counsel appearing for the public interest litigant and others requested this Court to hear the main writ petitions themselves on 1.8.2000 so that the rival claims made by either party can be considered and resolved finally by this Court. Accordingly, all these cases were listed for hearing on 1.8.2000 before this Bench.

11. The principal argument was made by Mr. Jagdeep Dhankar on behalf of the petitioner in WP N.3346/2000 and counsel appearing for the other writ petitions have adopted the arguments of the learned senior counsel. Mr. Jagdeep Dhankar invited our attention to the relevant rule viz. Rules 15 and 17 of the Rules of 1999 and also the provisions of Articles 14, 15(4) and 16(4) of the Constitution of India. Mr. Jagdeep Dhankar formulated the following questions of law which are required to be determined by this Bench:

(i) Whether it is permissible for the RPSC to draw a list in terms of Rule 15 by excluding the entire reserved category from the general category notwithstanding the fact that reserved category candidates on their merit standing can find place in the general category

(ii) Whether it is permissible for the RPSC to have a high cut off standard for the OBC as compared to the general category for admission to the main examination

(iii) Whether it is constitutionally permissible for the RPSC to interprete Rule 15 in a manner whereby disadvantaged sections i.e. the reserved category is made to suffer handicaps on account of reservation as compared to general category

(iv) Whether Rule 15 as interpreted by RPSC is unconstitutional as the same offends Articles 14 & 16 by denying equality to the reserved category in relation to the general category

(v) Whether the interpretation of Rule 15 by the RPSC runs faul to Articles 15(4) and 16(4) of the Constitution

(vi) Whether general category in Rule 15 can be codified as consisting only of non-reserved category and excluding in all situations meritorious reserved category candidates who can find placement in the general category on account of their merit standing

(vii) Whether the massive affirmative action in favour of general category (un-reserved category) is permissible under the constitutional scheme of things

12. Mr. Dhankar submitted that principle of equality enshrined under Articles 14 and 16 of the Constitution can be qualified by affirmative action in favour of SC, ST and other backward classes of citizens and for no category much less the unreserved category. According to him, the RPSC has operated Rule 15 in a manner that while general (unreserved category) candidates securing 203 marks are admitted to the main examination, the OBC candidates with 203 marks are denied the same. Thus, the equality enshrined in Articles 14 and 16(1) has been sacrificed by the RPSC. Such an action is exfacie illegal and contrary to the provisions of Article 14 and 16 of the Constitution. Further more, a classification in which less meritorious general category candidates unreserved category still march over OBC candidates cannot be reckoned as valid classification as it lacks rationality and reasonableness apart from having no nexus with the object to be achieved. He relief on the judgment of the Honble Supreme Court in case of Indra Sawhney v. Union of India in which it was held that the reservation contemplated in Clause 4 of Article 16 should not exceed 50%. Learned Counsel invited our attention to para 94 of the said judgment. He again invited our attention to the observation made by the Honble Supreme Court in Indra Sawhneys case wherein a special bench of 9 Judges dealt with the issues so as "to finally settle the legal position relating to reservation." The meaning and conduct of the expression reservation has been examined by the Apex Court in para 58 of the judgment. He also cited judgments in case of Janki Prasad Parimoo : [1973]3SCR236 and in case of Devadasan : (1965)IILLJ560SC . In Janki Prasads case, it was observed that "it is implicit in the idea of reservation that a less meritorious person is preferred to another who is more meritorious". In Devadasan case (supra), it was observed that "it is inevitable in the nature of reservations that there will be lowering of standards to some extent". Our attention was also drawn to para 388 in Indra Sawhneys case to show that the various provisions in the Constitution relating to reservation, therefore, acknowledge that reservations are an integral part of the principle of equality where inequalities exist.

13. Placing strong reliance on the above observations, Mr. Dhankar submitted that the RPSC in interpreting Rule 15 and in evolving its mechanism has virtually redefined the very concept of reservations and in so doing ignored Apex Court judgment and provisions of the Constitution. Lowering of standards for un-reserved category in preference to the reserved category, the disadvantaged segments of society would contribute towards perpetuating the injustice sought to be undone under Articles 15(4) and 16(4) of the Constitution of India.

14. Our attention was invited to the reported decision of the Apex Court in case of Ritesh R. Sah v. Y.L. Yamul, reported in : [1996]2SCR695 . Learned Counsel drew our attention to the relevant reflection of the Apex Court in the above judgment. The passage is quoted hereunder:

The writ petition under Article 32 of the Constitution of India raises the question whether a candidate belonging to the Scheduled Caste or any other reserved category even if is entitled to be selected for selection for admission in the open competition on the basis of his own merit yet can he be counted against the quota meant for reserved category or he will be treated as an open competition candidate

15. Learned Counsel invited our attention to Rules 13 and 17 of the Rules and submitted that under the Rules of 1999, the expression "category" has not been defined. However, according to the learned Counsel, its parameters can be gathered from Rule 17 proviso wherein it is given out that general category would not include SC/ST/OBC category who-get placement in the merit list as a result of special concessions and such candidate would be reckoned in the general category. According to Mr. Dhankar, the consequence of the aforesaid is unambiguous and as per this, SC, ST and OBC candidate who get placement in the merit list without securing special concessions would be reckoned in the general category. However, the RPSC has ignored the aforesaid while interpreting Rule 15 of the Rules of 1999. He has also cited some decisions in regard to the public interest litigation.

16. Mr. Ajay Rastogi submitted that there are three categories and not four as alleged namely; the general category. He invited our attention to the advertisement released and the relaxations given to certain persons and the quota fixed for handicapped persons, Rajasthan Police etc. and age relaxation. He also invited our attention to the ambit and scope of Rules 15 and 17 and also advanced arguments on Articles 16(2) and 16(4). He has also invited our attention to certain datas collected and mentioned in para 14 of the writ petition No. 2825/2000 to show to this Court that the reservation which has been extended to the OBC does not commensurate to the total number of population of other backward classes residing in the State of Rajasthan. Para 14 is reproduced hereunder:

As per earlier Census which was made by the Government in the year 1991, there were 52 communities which were included in OBC as per Notification dated 6.8.1994 and by subsequent Notifications dated 15th March, 1997, 7 more communities were added in the other Backward Classes and thereafter a further Notification was issued on 3.11.1999 and thereafter on 12.11.1999, 1.1.2000, 2.1.2000 and 10.1.2000 and by including all these communities total communities as on today are members of OBC is 74. It is pertinent to mention that as per the satitical analysis made by the Government for Scheduled Caste, 16% Reservation is provided to the total population which is 17.29% of the total population and for ST 12% reservation is provided which 12.44% of the total population and for OBC, 21% reservation is provided to the population which is more than 55 to 57% of the total population of the State. Meaning thereby, approximately 57% of the population of the state is now being member of OBC is claiming reservation in public employment at 21% quota. The reservation, in fact, was extended to the communities for their proper representation in the public employment with the object that this will be in addition to the general category merit which is available to all eligible candidates irrespective of their caste, creed or community and after due adjustment of all those who are members of reserved category, falling, in general category, will no benefit of reservation will be extended to them. Thus, the object behind providing reservation was that whose who are members of reserved category but could not compete in general merit, this additional benefit may be made available under Article 16(4) but by this indirect method all persons who are falling in general merit have been adjusted against reserved vacancies and reservation has been given complete go bye. Thus, the very interpretation made by the respondent Commission in preparing the list category wise 15 times of the number of approximate vacancies is totally misleading. Such interpretation made by the Commission Under Rule 6 of the Rules of 1999 is totally illegal, arbitrary and violative of the provisions of Article 16(4) of the Constitution of India.

17. He has adopted the arguments of Mr. Dhankar in other respects.

18. Mr. Rajendra Soni, after adopting the arguments of the learned Senior Advocate in support of his contentions raised in Writ Petition No.2785/2000 and Cited the judgments in S,B. Civil Writ Petition No. 2931/96. 1988(2) SLR 321 and 1995(2) SCT 65.

19. Mr. Ved Prakash, learned Counsel appearing in Writ Petition No.3457/2000 submitted that the interpretation of RPSC of Rule 15 is unconstitutional and is against Articles 14, 15(4) and 16(4) of the Constitution and that the said interpretation by RPSC is contrary to law Laid down by the Apex Court. He prayed that a direction be issued to the RPSC to prepare the list of candidates to the main examination by accommodating all reserved category candidates first in the general category if such candidates secured position in the general category on their merit standing and, thereafter, prepare a list for the reserved category candidates including the OBC category.

20. Mr. Joshi, learned Counsel appearing for the RPSC submitted that the decisions cited by learned senior counsel are not relevant for the purpose of determining the questions at issue and that those judgments are distinguishable on facts and law. He raised the preliminary objection to the maintainability of the writ petition and submitted that an Advocate practicing at Jaipur Bench has filed the writ petition without showing his locus stand and by seeking a relief as prayed for the writ petition. It is further submitted that the writ petition is belated and, therefore, it deserves to be dismissed on the ground of delay and laches. It is submitted that the result of the preliminary examination was declared on 27.5.2000 and the main examinations are scheduled to be held from 6.8.2000 and the writ petitions were filed only on 24.7.2000 by the public interest litigant. He invited our attention to Rules 15 and 17 of the Rules of 1999 and submitted that the RPSC has interpreted the rule on the basis of the authority to pronouncement of the law declared by this Court and the Honble Supreme Court of India and has prepared the list category wise on the basis of number of vacancies available in each category and that, therefore, there is no scope for any different interpretation of Rule 15 of the Rules of 1999 and, therefore, no exception can be taken to the action of the Commission which is based on the interpretation of Rule 15 as given by the Honble Supreme Court in Chattar Singhs case (supra). He would further submit that challenge to the validity of rule after declaration of the result and after the time-table for holding the main examination has been issued is thus not maintainable on the ground of delay and laches and that the petitioner in Writ Petition No. 3346/2000 has no locus standi to file such petition. On merits, Mr. Joshi submitted that the issues raised by the petitioner in this writ petition have been considered by this Court in the past and after considering the scheme of the examination envisaged by the relevant rules amended from time to time, this court in Mahesh Kumar Khandelwal v. State of Rajasthan 1995 (2) WLC 223 has held that the rule is quite consistent with reservation policy of the State and is further in consonance with the provisions of Article 335 of the Constitution of India and it does not take any SC/ST candidates. He invited our attention to the judgment of V.K. Gehlot v. State of Rajasthan, reported in 1996 (3) RLW (Raj.) 344 and the opinion expressed by the third Judge Under Rule 61-A of the Rajasthan High Court Rules to whom the reference was made. He drew our attention to the certain observations made by Honble the Supreme Court in Chattar Singhs case (supra) and submitted that in view of law laid down by the Supreme Court, the contention of the petitioner that the list of successful candidates in the preliminary examination should be prepared on the basis of the merit of the candidates secured by them in the preliminary examination and should not be prepared category wise is wholly untenable in law. According to Mr. Joshi, the final merit is prepared in accordance with the scheme of the examination and only after holding the main examination and interviews as per Rule 17 of the Rules of 1999. It is submitted by the counsel for the RPSC that the Commission has given affect to the rule of its correct interpretation by the rule making authority in the State of Raj as than. It. is also submitted that Rule 15 does not speak about merit and does not lay down any restriction as Laid down in Rule 17 of Rules which speaks of preparation of merit list.

21. Mr. Mathur, learned Additional Advocate General after referring to Rules 13, 15 and 17 submitted that the petitioner has failed to make out any case whereby Rule 15 of the Rules of 1999 violates the provisions of Articles 14, 15 and 16 of the Constitution of India and that the petitioners have mis-interpreted Rule 6 Schedule-Ill of the Rules. He would also submit that the petitioner after getting benefit of reservation and got relaxation in the category of other backward classes (OBC) cannot be treated as member of the general category. Since the petitioners remained unsuccessful and did not find themselves within the zone of 15 times on the basis of marks so obtained by them in the preliminary examination. According to the learned Additional Advocate General, the preliminary examination had been held only for the purpose of short listing the candidates and to permit the candidates to the extent of 15 times of the total vacancies category wise for the main examination and that the marks obtained in the main examination will be the qualifying marks for appearing in the interview and the final select list has to be drawn on the basis of marks obtained in the main examination as well as in the interview. It is also submitted that Articles 15(4) and 16(4) have not been violated as alleged and that the petitioners have no right to challenge the various notifications by which other class were included in the category of OBC.

22. Mr. A.K. Sharma appeared for Naresh Shukla and other applications who appeared in the RAS (Pre.) Examination, 1999 and have been held successful candidates eligibly to appear in RAS (Main) Examination, 1999 to be held from 6th August, 2000 and the call letters entitling all the applicants to appear in RAS (Main) Examination have been issued by the RPSC. It is submitted that the applicants are appearing in the main examination in the general category as per merit prepared in accordance with Rule 15 and the interest of the applicants vests in this examination and any order passed holding Rule 15 unconstitutional shall effect the applicants. They filed the application to implead them as necessary and proper parties to the petition. In our opinion, the interveners are the proper and necessary parties to the lis and they are, therefore, impleaded as respondent Nos. 3 to 6 in Writ Petition No.3346/2000 in order to effectively adjudicate the questions at issue and also to avoid multiplicity of proceedings.

23. Mr. Bharat Vyas, learned Counsel filed another application on behalf of one Chandra Shekhar Bohra who was declared successful by the RPSC and permitted to take-up the final examination to be held from 6.8.2000 as an intervener in Writ Petition No.3346/2000. The applicant in this application is also declared as a successful candidate and permitted to take-up the final examination and any decision taken behind his back, it will affect his Interest and, therefore, we implead him as party/respondent No.7 in Writ Petition No.3346/2000. Mr. Bharat Vyas submitted that there cannot be any direction to act contrary to Rule 15 of the Rules of 1999 and in support of the said contention, he cited the ruling reported in JT 1993(4) 78 .

24. Mr. Jagdeep Dhankar, in reply to the arguments advanced by Mr. Joshi and Mr. R.N. Mathur, submitted that the judgments cited by the State and the RPSC are not apt for the preposition submitted by them and that the judgment of the Supreme Court in case of R.K. Sabharwal v. State of Punjab : [1995]2SCR35 support the case of the petitioners and in so far as locus standi question raised by the learned Counsel for the respondents are concerned, he submitted that this Court on many occasions entertained the writ petitions filed by the Advocates and very recently this Court has entertained a D.B. Civil Writ Petition No.436/2000 filed by the Advocates. Concluding his argument, Mr. Dhankar submitted that the interpretation of Rule 15 by the RPSC runs counter to Articles 15(4) and 16(4) of the Constitution of India and, therefore, the list drawn by the RPSC in terms of Rule 15 by excluding the entire reserved category from the general category notwithstanding the fact that reserved category candidates on their merit standing can find place in the general category is wholly incorrect and impermissible in law and, therefore, it is submitted that the entire selection process on the basis of the preliminary examination should be set aside and justice rendered to the petitioner and the persons similarly placed in other writ petitions.

25. We have given our, anxious consideration to the rival submissions made by the counsel appearing on either side. We have carefully gone through the entire materials very scrupulously and we are of the opinion that there are adequate and compelling circumstances placed on record to accept the interpretation made on Rule 15 by the RPSC which is on the basis of the rulings cited by the counsel for the RPSC rendered by this Court and also of the Apex Court.

26. We shall now consider the decision cited by the learned Counsel for the petitioners. In Parents Association and another v. Union of India : [2000]1SCR429 , the writ petition was filed by the Parents Association of Ten Years Students, Andaman and Nicobar, Islands, against the Union of India and others to set aside the proceedings of Union of India, Ministry of Home Affairs dated, 14.2.1984, 4.9.1991 and 30.5.1996 as being violative of Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India. Para-33 of the said judgment was relief on by the petitioners counsel. The Supreme Court has observed that normally, it is expected the reserved categories cannot exceed 50% of the quota as decided in various decisions of the same Court and rest must go to merit candidates. But, on the peculiar facts of the case, relating to Andaman and Nicobar Islands, the Supreme Court has observed that classification and quota cannot be said to be offending the said principle. The Supreme Court has also observed that having regard to the rather special facts obtaining in the Island, it cannot be said the adequate provision has not been made in favour of merit candidates.

27. The next case relied on by the learned Counsel for the petitioners is State of U.P. v. Dr. Dina Nath Shukla and Anr. : [1997]1SCR750 . This case relates to direct recruitment to the post of Professors, Readers and Lecturers in Universities/Colleges established under the U.P. Act. In the said case, subsequent of the enactment of the Uttar Pradesh Public Services (Reservation for Schedule Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short the Act), an advertisement was issued by the University of Allahabad inviting applications form all eligible persons for posts of Professors, Readers and Lecturers including the posts reserved for Scheduled, Castes, Scheduled Tribes and other Backward Classes. A clarification was issued by the Government stating that for recruitment to the posts of Professors, Readers and Lecturers, University or College is treated as a unit and the recruitment would be made applying the rule of reservation for the SCs, STs and OBCs. in respect of all the posts. The said notification was held to be bad in the High Court. The State/N appellant contended that for most of the subjects there were single posts of Professors, Readers and Lecturers in the University/College, if recruitment was made to each single post there would be total non-application of the rule of reservation. Dismissing the appeal, the Supreme Court held that from Sees 3(1) to (7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classess) Act, 1994, it is clear that while issuing any advertisement for direct recruitment to fill up any post or service in any grade or cadre in the University/educational institution established under the U.P. Act, the University/educational institution should work out the posts beforehand and to make recruitment accordingly. Para-8 of the judgment was relied on by the petitioners counsel. The Supreme Court has observed that Article 335 read with Article 46, 38 and 16 would give the socioeconomic empowerment to the Dalits and Tribes and rule of reservation in that matter of appointment to a service or post under the State is a part of the constitutional scheme as a positive facility and opportunity available to them and where it is extended to OBCs, they too get, opportunity to strive to improve excellence in a service or a post in which he or she gets appointment. In a democracy governed by rule of law, every segment of the society is entitled to a share in the governance of the country. The Supreme Court has observed that the Act gives practical content to implement the constitutional mandate of equality of opportunity and status to the Dalits, Tribes and OBCs in the matter of appointment to a public service or a post under the State of U.P. including an appointment in a University or educational institution.

28. In Indra Sawhney etc. etc. v. Union of India and Ors. : AIR1993SC477 , Paras 26 and 94A were relied on by the learned Counsel for the petitioners. Para 26 deals with issue for consideration. The Supreme Courts held that the reservation contemplated in Clause (4) of Article 16 should not exceed 50% and 50% shall be the rule. It is necessary not to put of consideration certain extra-ordinary situations inherent in the great diversity of this country and the people and therefore, some relaxation in this strict rule may become operative. The Supreme Court has also observed that in doing so, extra-ordinary caution has to be exercised and a special case is made out. It is held that the reservations under Article 16(4) do not operative like a communal reservation. It may well happen that some members belonging to the Scheduled Castes get selected in open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates. According to Mr. Dhankhar, learned Counsel for the petitioner, RPSC has ignored the dictum of Indra Sawhneys case.

29. The next judgment relied on by the learned Counsel is Ritesh R. Sah v. Dr. Y.L. Yamul and Ors. 1993(3) SCC 253. In this case, the respondents 5 to 36 belonging to the reserved category were admitted as against reserved category and as a result, the petitioner also belonging to the reserved category was excluded from getting admission into the MBBS course. The Supreme Court held that a student who is entitled to be admitted on the basis of merit, though belonging to a reserved category, cannot be considered to be admitted against the seats reserved for reserved category, but at the same time, the provision should be so made that it will not work out to the disadvantage of such candidate and he cannot be placed at a more disadvantageous position than the other less meritorious reserved category candidates. It is also observed that while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but in computing the percentage of reservation, he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate. Paragraphs 13, 14, 15 and 16 were relied on by the counsel for the petitioners.

30. The case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors. : 1985ECR4(SC) was cited by the learned Counsel for the proposition that the High Court is bound to follow the principle of law Laid down by the Supreme Court.

31. In State of Bihar and another v. Bal Mukund Sah and Ors. : [2000]2SCR299 relied on by the learned Counsel for the petitioner, a question arose as to whether the Legislature of the State of Bihar was competent to enact the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991. The Supreme Court held per majority that Section 4 of the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act is ultra vires of Articles 233 and 234 of the Constitution and the State Legislature cannot enact a statutory provision introducing a scheme of reservation in the Judicial Service comprised of District Judges cadre as well as the cadre of Judges subordinate thereto.

32. The case of Secretary, Rajasthan Public Service Commission, Ajmer v. Om Dutt Sharma and Anr. RLR 1990(1) 182, was relied on for the proposition that if merit is the criteria, then it must be judged by taking into consideration the candidature of all persons who have passed examination conducted by the Commission and confining the relief only to petitioners and denial of consideration to the candidates who may be more meritorious but have not filed writ petitions would amount to discrimination.

33. The case of Indra Sawhney v. Union of India and Ors. : AIR2000SC498 , was cited for proposition that rule of equality is a basic feature of the Constitution and that any legislation or executive action violating the basic features and basic structure of the Constitution would be unconstitutional. The anguish of the Court can be seen from Paras 87, 88 and 89 of the said judgment. The Supreme Court held the exclusion of creamy layer cannot be avoided even by legislative enactment, because, no enactment can violate the basic features of the Constitution.

34. Head note A and B of the judgment reported in State of Punjab and Ors. v. G. S. GUI and Anr. : [1997]3SCR412 was relied on by the learned Counsel. The issue before the Supreme Court was, whether the action of the State of Punjab applying reservation for SCs/STs to a single post was valid. According to roster point, the vacancy fell to the share of an SC candidate and therefore, the respondent No.2 was promoted. Respondent No. 1 who was a general category candidate, contended that reservation could not be applied because it was a solitary post. He prayed for a mandamus or direction to the Government to de reserve the carried forward post and to consider his case for promotion as a general candidate. The Supreme Court held that the carry forward rule is constitutionally permissible. It is an extension of the principle of providing facility and opportunity to secure adequacy of the representation to SCs and STs mandated by Article 335 and even in the post where the vacancy as per roster was available, but candidates were not available, same could be carried forward for three years. However, in each recruitment year, the carry-forward rule cannot exceed 50% of the vacancies. This question however, does not arise in a situation where there is a single post/cadre. The Supreme Court also held that a general category candidate has no right to seek de-reservation.

35. In Ajit Singh and Ors. v. The State of Punjab and Ors. : AIR1999SC3471 , our attention was invited to Para-76 of the judgment and conclusions on points 1 and 2 by the Court. The Supreme Court held that the roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the, promoted post vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate-he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. 36. This point was further explained under Point No.3 by the Supreme Court.

37. The case of R.K. Sabharwal and Ors. v. State of Punjab and Ors. : [1995]2SCR35 was heavily relied on by the learned Counsel for the petitioner for the proposition that when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. The Court further observed as under:

Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above, the roster point which is reserved for a Backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Class are operative the same have to be followed. Despite any number of appointees/promotees belong to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned Counsel and reject the same.

38. We shall now advert to the decisions cited by Shri J.P. Joshi, learned Counsel for the R.P.S.C. Mr. Joshi submitted that Rule-13 of the Rajasthan Civil Services (State and Subordinate Examination) Rules, 1962, has undergone some change in 1993. It was substituted by Act No.44 dated, 2.3.1999. The proviso to Rule- 13 came up for interpretation of the High Court and later by the Honble Supreme Court which deals with relaxation to SC/ST candidates. Rule 15, according to Mr. Joshi provides vital consideration and to short list candidates arid the final order of merit will be prepared only after final examination. According to Mr. Joshi, Rule 15 is not a select list. Rule 13 came up for challenge before this Court. The judgment of the Division Bench is reported in Mahesh Kumar Khandelwal and 16 Ors. v. state of Rajasthan and Ors. 1995(2) WLC Raj 223. It has been pleaded before the Bench that the preliminary examination held by the RPSC is not a competitive examination, but it is only a screening test. It is also pleaded that till the main examination takes place, there is no Us between the SC/ST candidates and the general category candidates and that SC/ST candidates cannot be asked to compete with the general category candidates, inasmuch as, reservation as has been made available to SC/ST candidates by virtue of Article 16(4) of the Constitution and by issuance of a common list of SC/ST candidates and the general category candidates, the very purpose of protection has been frustrated. Upon such pleas, the petitioners prayed to quash and set aside Rule 13 of the Rules of 1962 as amended by Amendment Act No.44 dated 3.2.1993 and to declare a fresh result of 15 times of number of vacancies plus 5% in addition to the preliminary examination held in pursuance to the advertisement, so far as it relates to the category of SC/ST and to allow the petitioners and other similarly situated persons who are members of the SC/ST and who are found successful candidates in fresh list to appear in the main examination to take place in pursuance to the advertisement. The Division Bench, after careful consideration of the rival contentions and after carefully analysing the provisions relating to cut-off percentage of marks to be applied by the candidate at the preliminary examination so as to qualify the candidates for taking the main examination, held that a relaxation of 5% has already been made by proviso to Rule 13 in favour of SC/ST candidates and this, in their opinion, takes adequate care of the rights and interest of the SC/ST candidates and by the very nature of relaxation SC/ST candidates stand on a more privileged pedestal than the ordinary and general candidates and it cannot be said that fixing of a general cut-off percentage of marks is violative of the reservation made in their favour or is violative of Articles 14 & 16 of the Constitution of India.

In para 32, the Court held as follows:

It was for the executive Government to devise ways and means as to how reservation in favour of SC/ST candidates has to be achieved consistent with the provisions of Article 335 of the Constitution of India. If the rule making authority did to deem it proper to make it incumbent for the RPSC to prepare separate lists of general category and SC/ST candidates qualifying at the preliminary examination, no fault could be found with the provision, which does guarantee a reservation in favour of SC/ST categories in a particular manner, as thought suitable by the rule making authority.

39. In Para 33 the Division Bench has also followed the judgment of the Supreme Court reported in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh kumar Sheth : [1985]1SCR29 , wherein the Apex Court made the following observations:

The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than "is necessary" or that it does not incorporate certain provisions which, in the opinion of the Court, would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make bye-laws, must ordinarily be presumed to know what is necessary, reasonable, just and fair.

The Division Bench has further observed as under:

In our opinion, this dictum would squarely apply to rules framed under proviso to Article 309 of the Constitution and we would not be justified in striking down the scheme of reservation provided in the proviso to Rule 13 of the Rules merely because, as contended by the petitioners a better mode of reservation, could have been provided by making it incumbent upon the RPSC to prepare separate lists of General category and SC/ST candidates. The rule as obtaining in the present case is neither unreasonable, nor arbitrary nor capricious or for that matter, unjust or inequitable. To our mind, the Rule is quite consistent with the reservation policy of the State and is further in consonance with the provisions of Article 335 of the Constitution of India. It does not take away any vested substantive right of SC/ST candidates and pertains only to realm of procedure of the examination process with a view to achieve requisite screening. We, therefore, do not find that the provision in question suffers from any vice, so as to render it invalid or bad in law, in any manner.

In para 35, it is further observed:

It is not a mere screening test as contended on behalf of the petitioners. In a competitive process, a certain minimum attainment is expected of all the candidates and those who fail to achieve the minimum cannot complain that they have been left out of the, competition at the threshold. The scheme of the competitive examination envisaged in the schedule to the Rules, already reproduced elsewhere makes it abundantly clear that non-achievers have to be eliminated at different stage, some are eliminated as a result of the preliminary test; others are eliminated at the main examination; lastly, some are bound to be eliminated at the viva voce stage. SC/ST candidates cannot complain that a separate list should have been prepared with regard to these candidates, when the Rules do not mandate it, either by express words or even by necessary implication. We, therefore, reject the contentions raised in this behalf.

40. This Court, accordingly, disposed of the writ petitions by directing the Commission to publish the result of the preliminary examination held by it in two prominent daily newspapers of the State by showing formula of moderation adopted by it, as also the cut-off percentage and should also indicate raw marks in the bracket and scaled marks outside the bracket against roll number of each of the candidate. A direction to declare the result was also made.

41. In Vijay Kumar Gehlot and Ors. v. State of Rajasthan and Ors. RLW 1996 (3)344, a reference was made to the third judge (V.S. Kokje, J.), decided in S.B. Civil Writ Petitions No. 1579/96 and 427/96, Under Rule 61-A of the Rules on difference of opinion between B.R. Arora, J. and J.C. Verma, J., who heard the petition. When the matter came up before the learned Single Judge, he issued ad interim writ directing the RPSC to publish the result of the preliminary examination of Raj as than State and Subordinate Service Direct Recruitment by Combined Competitive Examination, category-wise for the Scheduled Caste, Scheduled Tribe and other Backward classes candidates and rest of the candidates in general category separately. It was also directed that number of candidates permitted to take examination should be 15 times of the vacancies. It was further directed that the main examination be not held on the basis of the result of the preliminary examination already published which was under challenge. The learned Judge later dismissed the application under Article 226(3) of the Constitution filed by the State of Rajasthan and others and confirmed the earlier ad interim order with modification that if the RPSC decides to publish the result of preliminary examination category-wise, then the main examination may be held, but the result of the main examination so held should not be declared till pendency of the writ petition. The RPSC filed D.B. Civil Special Appeal No. 427/96 against the order of- the learned Single Judge. The petitioner, who belongs to OBC cotended that the reservations have been provided by a general order in the Government employment to SC/ST and OBC. Reservation to the SC and ST candidates was available when initially the Rules were framed in 1962. Subsequently in the year 1994, reservations were also granted to OBCs. The petitioners contended that the results of the preliminary examination have to be declared separately category-wise for the SC, ST and OBC and the general or unreserved class. It was also contended that the concession of lowering the cut-off marks by five percent in case of shortfall of candidates has also to be made available to the candidates has also to be made available to the candidates belonging to OBCs as it is available to SC and ST candidates. However, the Division Bench turned down the contention that it was necessary for the Commission to publish the result of the preliminary examination category-wise. B.R. Arora, J. was of the view that since the Rules did not specifically provide for any such concession to be given to the OBC candidates, no such concession could be made available to them. J.C. Verma, J. was of the view that no distinction could be made in the treatment to be meted out to them. Because of this difference of opinion, the Division Bench directed the matter to be placed before Honble the Chief Justice, who nominated Kokje J. as a Judge to hear the reference. After considering rival submissions made by both the parties, the learned Judge in Para 34 of the judgment has held as follows:

It was vehemently argued by the learned Counsel for the petitioners injustice being done to the members of the OBC. It was contended that the, to the OBC is to see that they really get adequate representation in the service by occupying the posts reserved for them. By depriving them of an opportunity to appear at the main examination, the very purpose of the reservation was being defeated as per the learned Counsel for the petitioners. The answer to all these pleas is very simple. If the petitioners wanted to canvass that point, it was open to them to challenge the very basis of providing cut-off marks for the preliminary examination. A preliminary examination is short-listing candidates to a reasonable and practical extent so that in the main examination, the confusion and disorder likely to be created because of large number of candidates is avoided. In these days of ever increasing unemployment, hundreds of applications are received for one post. To allow all the candidates holding minimum qualifications for the posts to appear at the written test or the interviews is simply not only impracticable but almost and an impossible task. It also involves tremendous wastage of time, money and energy. The short-listing procedure has therefore, gained wide acceptability. Short listing can be made in two ways (i) by prescribing the maximum number of candidates in order of merit who could be allowed to take the main examination or (ii) or fixing minimum qualifying marks which may be called cut-off marks for deciding as to who can appear at the main examination. All this becomes necessary when the number of candidates is large as compared to the seats available. When the number of qualifying candidates available is less, problem of short-listing should not arise. In the present case, when the number of candidates available in the categories of SC and ST and OBC are not even fifteen times the number of posts available for them, there is indeed no rationale behind-prescribing cut-off marks at the preliminary examination. It is true that because of Article 335 of the Constitution of India, the power Under Article 16(4) is subject to the rider of maintenance of efficiency in the administration and therefore, it is necessary for the State to fix certain minimum standard even for the reserved categories. But this rider cannot apply to preliminary examination and could apply top the main examination because only because some one is allowed to complete at the main examination he does not get automatically inducted in the Government Service and giving a chance to appear in the main examination does not interfere with or lower down the standard of administrative efficiency.