PANWAR, J. - (1.) BY the instant writ petition, petitioner seeks quashing the impugned order dated 10. 11. 1997 (Annex. 6); directing respondents to declare the result again after counting the name of Dr. R. L. Dayma in General Category and treat the petitioner to have been selected on the post of Assistant Professor in Orthopedics in terms of the judgment of this Court dated 30. 1. 1996 (Annex. 5 ).
(2.) PETITIONER, who is a member of Scheduled Caste, has to his credit the qualifications of M. B. B. S. Degree and Master's Degree in Orthopedics. After being selected by the Rajasthan Public Service Commission (for Short, "the Commission"), petitioner was appointed as Civil Assistant Surgeon in May, 1990. Thereafter, in pursuance to the advertisement issued by the State Government, he applied for the post of Assistant Professor and on being selected, vide order dated 18. 4. 1991 (Annex. 1), petitioner was appointed as Assistant Professor on urgent temporary basis and his term of appointment was extended upto 30. 6. 95. The Commission issued the advertisement dated 10. 12. 1993 (Annex. 2) for selection to nine posts of Assistant Professors including two posts reserved for Scheduled Caste candidates; however the Commission did not hold the selections. The Commission again issued an advertisement dated 29. 7. 94 (Annex. 2) inviting applications for ten posts of Assistant Professors and it was specifically made clear that those who had applied in pursuance to earlier advertisement Annex. 2, need not apply again. Vide notice Annex. 4 dated 23. 8. 95, the Commission fixed the date of screening as 1. 10. 1995. PETITIONER challenged the order Annex. 4 by way of filing SBCWP No. 3101/1995 and this Court passed an interim order directing respondents to consider petitioner's case for selection on the post of Assistant Professor in Orthopedics without subjecting him to screening. PETITIONER appeared for interview and his result was kept in sealed cover. The result of the petitioner was produced in the Court on 31. 01. 96 and it was found that he was selected and his name was placed in the merit list, therefore, the said writ petition was allowed vide order dated 30. 1. 96 (Annex. 5) and the respondent Commission was directed to declare the result of the petitioner and forward his name to the State Government for making appointment in accordance with law. The special Appeal filed by the respondents against the order Annex. 5 stood dismissed by the Division Bench of this Court vide order dated 17. 5. 1996. On filing Special Leave Petition by the respondents, initially the Hon'ble Supreme Court granted interim order which was vacated on 24. 9. 1947. In terms of the order of the Hon'ble Supreme Court, the Commission declared the result of those candidates which was withheld. By that time, the number of posts increased to 15 and as per 16% reservation in favour of Scheduled Caste candidates, 3 posts were to be filled up by giving appointment to the candidates belonging to scheduled caste. The grievance of the petitioner is that the respondent Commission, vide impugned order Annex. 6 dated 10. 11. 1997, recommended the names of Dr. Ratan Lal Dayma and Dr. Babu Lal Khojiti as Scheduled caste candidates in the main last and Dr. Banwari Lal Chopra in the wait list as Scheduled Caste candidate and ignored the name of the petitioner. Hence this writ petition. I have heard learned counsel for the parties and perused the record. The main contention raised by the petitioner is that the total number of posts were 15 and as per reservation policy, 3 posts were reserved for scheduled caste candidates by applying roster system. Petitioner's grievance is that the respondents have committed serious illegality in mentioning the name of Dr. R. L. Dayma in the impugned order Annex. 6 as a scheduled caste candidate whereas he was required to be adjusted as General Category candidate as he secured position in between the candidates placed at Serial No. 7 and 8 of the selection list and on account of inclusion of name of Dr. R. L. Dayma in the list of reserved category candidates instead of General Category candidates, the name of the petitioner has wrongly been excluded from the select list. In reply, the respondents have come with the case that the petitioner was placed below Dr. Ratan Lal Dayma, Dr. Babu Lal Khajoti and Dr. Banwari Lal Chopra and as such he was not entitled to be selected. The another stand taken by the respondents is that at the time of passing the order Annex. 5 by this Court, the result of Dr. Ratan lal Dayma and Dr. Babu Lal Khajoti were not available and as such the petitioner is not entitled to claim any benefit form the said order of this Court. There is not dispute to the factual matrix that the petitioner is a member of scheduled caste and possesses requisite qualification for appointment on the post of Assistant Professor in Orthopedics. Further, there is an order dated 30. 1. 1996 (Annex. 5) passed by this Court treating the petitioner as a selected candidate for the post in question and that order attained finality in view of the decisions of the Division Bench and the Apex Court and as such, the said finding would operate as res judicata in subsequent matters as held by the Hon'ble Apex Court in Pawan Kumar Gupta vs. , Rochiram Nagdeo (1 ). Once the petitioner has been held validly selected, there could not be any departure from the said mode without any valid justification as held by the Hon'ble Apex Court in Baba Charan Dass Udhasi vs. Mahant Basant Das Babaji Chela Baba Laxmandas Udasi Sadhu (2) Therefore, it was incumbent upon the respondents to strictly comply with the directions given by this Court vide order Annex. 5, which became final and the same was not liable to be questioned by the Commission or the State Government. Moreso, the stand taken by the respondents that they were not aware about the comparative merit of the petitioner vis-a-vis other candidates, is not easily gulpable as the results are placed in sealed cover after the same is prepared and not prior to that and at the time of preparation of result, merit of such candidates are definitely known to the Commission. Thus, the respondents have committed serious illegalities in not appreciating the case of the petitioner in right perspective and on one pretext or the another, they have tried to over-look the judicial verdicts given in favour of the petitioner regarding his valid selection on the post of Assistant Professor in Orthopedics.
(3.) A perusal of impugned order Annex. 6 dated 10. 11. 97 shows that the merit list and reserve list declared on 20. 12. 95 had been modified and the names of Dr. Ratan Lal Dayma and Dr. Babu Lal Khajoti have been shown as selected candidates from main merit list of scheduled caste candidates and the name of Dr. Banwari Lal Chopra has been shown as a selected candidate from the reserve list of scheduled caste candidates. A perusal of para 11 of the reply filed by the Commission shows that the marks secured by Dr. Ratan Lal Dayma, Dr. Babu Lal Khajoti and Dr. Banwari Lal Chopra were 54, 53 and 52 respectively whereas the petitioner secured 51 marks. The respondents have come with the specific case that the name of petitioner stands after the names of these there persons. There is no dispute that 3 posts were reserved for scheduled caste candidates. The grievance of the petitioner is that Dr. R. L. Dayma secured position in between the candidates placed at serial number 7 and 8 of the General category but his name has been shown against the select list of scheduled caste candidate and had his name been shown in General Category, the petitioner would certainly be entitled for appointment in question. The respondents have not disputed the fact that the merit of Dr. Ratan Lal Dayma stands in between 7 and 8 of the list of General Category and had his name been shown in General Category, the petitioner would have been entitled for appointment. The pertinent question arises for consideration is: whether the respondents were justified in placing the name of Dr. Ratan Lal Dayma in the select list of scheduled caste candidates. In R. K. Sabharwal & Ors. vs. State of Punjab & Ors. (3), a Constitution Bench of the Hon'ble Apex Court held that reserve category candidates can compete for the non-reserve 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 Hon'ble Apex Court further held that the prescribed percentage cannot be varied or changed simply because some of the members of reserved class have already been appointed/promoted against general seats and despite any number of appointees/promotees belonging to the reserved category against the general category posts, the given percentage has to be provided in addition. ;