Dr. LAKSHMANAN, CJ. - (1.) -
(2.) THIS writ petition was filed by a practising 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 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; (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." 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. The other writ petitioners 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 Examination) 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 candi-date 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 Article 14 & 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. 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 29.11.99 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 have 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. 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 stages 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 (categorywise) 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."
(3.) 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 O.B.C. as compare to the general category ? (iii) 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.C. 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 Article 15 and 16 of the Constitution of India ? 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 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. 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 compiled under this rule shall be immediately sent to the Government and also be published for general information." ;