- (1.) THE question involved in all above mentioned writ petitions is analogous and, therefore, they are heard and being decided together by this common order.
(2.) FACTS, in brief, relevant for adjudication of the question involved in the writ petitions are that vide advertisement No. 2/pariksha "rajya-Adhi/98-99 dated 10. 5. 1999 the Rajasthan Public Service Commission (hereinafter shall be referred to as `the RPSC') invited applications for filling up the posts of Rajasthan State & Subordinate Services for the years 1997-98 and 1998-99 under the Rajasthan state and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (for short `the Rules of 1999' ). pursuant to the aforesaid advertisement the petitioners submitted their applications as general category candidates and appeared in three tier examination scheme i. e. Preliminary. Mains and Viva-Voce examination. After successfully clearing all the three stages of examination in the final result, the petitioners were allocated different cadres. The petitioners' grievance is that six woman candidates were allocated category in accordance with their merit in respective category ignoring reservation provided for woman candidates in pursuance of the Circular dated 31. 5. 2000 and, therefore, they have not been provided the cadre which they were eligible. It is the case of the petitioners that petitioner Sameer Kumar who has been provided R. P. S. cadre would be entitled for R. A. S. Cadre, Chandan Singh who has been provided with Industries would be entitled for R. P. S. cadre, Rajesh Sharma who has been given Transport would be entitled for R. P. S. cadre, Dayanand Saran who has been provided with R. P. S. cadre would be entitled for R. A. S. cadre, Puran Singh who has been provided Commercial Taxes would be entitled for R. P. S. cadre and Milind Kumar Johiya who has been given R. P. S. cadre would be entitled for R. A. S. cadre, had woman candidates were allocated cadre in accordance with reservation provided for woman candidates. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan amended Rules of 1999 by "the Various Service (Amendment) Rules, 1999" which came into force with effect 1. 4. 1999. The relevant amendment, which has been incorporated, is as under:- " Reservation of vacancies for women candidates:- Reservation of vacancies for woman candidates shall be 20% category wise, in direct recruitment. In the even of non- availability of the eligible and suitable woman candidates in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i. e. the reservation of woman candidates shall be adjusted proportionately in the respective category to which the woman candidates belong. " This amendment has been incorporated in as many as eighty nine service rules of the State of Rajasthan mentioned in the Schedule appended to the amendment Rules. Later on by further amendment the reservation of vacancies for woman candidates was enhanced to 30% category wise. Thus, under the Rules, 30% of the vacancies are reserved for woman candidates in direct recruitment. It may be stated here that the validity of the provisions of providing 30% of reservation of vacancies for woman candidates in direct recruitment by the amendment is not challenged in these petitions. The State of Rajasthan has issued a Circular dated 31. 5. 2000 wherein it has been provided:- (a) The women candidates who apply by taking the benefit of the relaxations given to them under the rules for women candidates and are placed in the select list above the last candidate of male category, such women candidates will be deemed to have been selected against the vacancies reserved for women candidates. (b) However, those women candidates who apply without taking the benefit of relaxation given to them under the rules for women candidates and secure position above the last male candidate, such women candidates will be deemed to have been selected against the vacancies of male category. In the Rajasthan Administrative Service forty posts were vacant to be filled in by the R. P. S. C. for the year 1997-98 and 1998-99; out of them, 22 seats were available for the General Category, 6 posts for Scheduled Caste (SC), 4 posts for Scheduled Tribe (ST) and 8 seats for Other Backward Classes (OBC) candidates. 30% vertical reservation has been provided for the woman candidates as per the amended rules. Thus, by virtue of reservation provided for the woman candidates, seven posts were reserved for the woman candidates in the General Category, two for the SC woman candidates, 1 for ST woman candidate and 2 for OBC woman candidates. Grievance of the petitioners is that on account of the Circular, issued by the State Government on 31st of May, 2000 number of woman candidates selected was increased to 11 in General Category, 3 in SC category, 1 in ST category and 3 in OBC category, whereby the woman candidates have occupied in excess 4 posts available for General Category male candidates, 1 post available for SC category male candidate and 1 post available for OBC category male candidate. The State, by operating the Circular dated 31. 5. 2000, gave 4 General category woman candidates, 1 SC category woman candidate and 1 OBC category woman candidate, appointment over and above 30% of the quota prescribed under the Rules. In other words, it is the contention of the petitioners that the woman candidates could have been selected according to their merits but could only be given appointment under the reservation provided to them i. e. in no case the woman candidates could have been given appointment exceeding 30% of the category wise vacancies. The argument proceeded on the premises that even though the women candidates stand on their own merit for selection, they have to be considered within the reservation provided under the Rules and not as a General Category candidate selected on the basis of their merit.
(3.) IN the Circular issued by the State on 11. 5. 2000 a distinction has been drawn between the woman candidates i. e. woman candidates who fall within the relaxations given to woman candidates under the Rules, as woman candidates and the woman candidates who do not claim benefit of relaxation given to them under the Rules of 1999. The woman candidates who have not taken benefit of relaxation under the Rules of 1999, being the woman candidates, have been treated as the candidate who have applied outside the reservation fixed for the women candidates and the women candidates who have taken the benefit of relaxation are treated as applicants within the reservation. It is this distinction drawn by the State Government by Circular dated 31. 5. 2000 is under challenge. Under Rule 13 of the Rules of 1999 a candidate for direct recruitment to the posts to be filled in by Combined Competitive Examination conducted by the RPSC under the Rules of 1999 must have attained the age of 21 years and must not have attained the age of 33 years on the first day of January next following the last date fixed for receipt of applications. Under the proviso to this Rule the upper age limit is relaxed by 5 years in the case of woman candidates and the candidates belonging to the Scheduled Castes and Scheduled Tribe of Rajasthan. Therefore, the woman candidates can take advantage of relaxation of the upper age limit. There may be a woman candidate who does not claim any relaxation in the age and apply before attaining the age of 33 years and therefore to be considered as general candidate or there may be a woman candidate who seek relaxation as a woman candidate by claiming benefit of upper age limit. Can this distinction drawn by the State by Circular be called artificial and arbitrary or real and inconformity of constitutional scheme? In the case of Indra Sawhney and Others vs. Union of India and Others (1), the Apex Court held as under:- " In this connection it is well to remember that the reservations under Article 16 (4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field 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. " ;