JUDGMENT [ENTITY], J.
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 [ACT] (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.
3. 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 [ENTITY] who has been provided R.P.S. cadre would be entitled for R.A.S. Cadre, [ENTITY] who has been provided with Industries would be entitled for R.P.S. cadre, [ENTITY] who has been given Transport would be entitled for R.P.S. cadre, [ENTITY] who has been provided with R.P.S. cadre would be entitled for R.A.S. cadre, [ENTITY] who has been provided Commercial Taxes would be entitled for R.P.S. cadre and [ENTITY] 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.
4. In exercise of the powers conferred by the proviso to [SECTION] of the [ACT], the Governor of Rajasthan amended Rules of 1999 by "the [ACT]" 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.
5. 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.
6. 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.
7. In the Circular issued by the Slate 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.
8. Under [SECTION] 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 Slate by Circular be called artificial and arbitrary or real and inconformity of constitutional scheme?
9. In the case of [PRECEDENT], the Apex Court held as under:-
"In this connection it is well to remember that the reservations under [SECTION] 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."
10. The [ACT]al Bench of the Supreme Court in the case [PRECEDENT], considered the question of appointments and promotion and roster point vis-a-vis reservation and, held as under:-
"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-reserve posts and in the even of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation."
11. In [PRECEDENT] (3), the Apex Court has held that while determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.
In the case of [PRECEDENT], it is held by the Apex Court that " In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible 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 seats reserved for reserved category "
12. Reservation made in favour of the woman candidates appears to be under [SECTION] of the [ACT]. In [PRECEDENT]'s case (supra) in paragraph 733 the Apex Court has said that [SECTION] is a facet of [SECTION]. Just as [SECTION] permits reasonable classification, sadoes [SECTION]. A classification may involve reservation of seats or vacancies, as the case may be. In other words, under [SECTION], appointments and/or posts can be reserved in favour of a class. Further in paragraph No. 741 it is said-that [SECTION] being a facet of the doctrine of equality enshrined in [SECTION] being a facet of the doctrine of equality enshrined in [SECTION] permits reasonable classification just as [SECTION] does. [SECTION] does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. [SECTION] is an instance of such classification, put in to place the matter beyond controversy. That [SECTION] is not an exception to [SECTION]. It is an instance of classification. It is an instance of classification implicit in and permitted by Clause (1). And, then in paragraph 744 while dealing with the question whether any reservation can be provided outside Clause (4) i.e., under [SECTION], the Apex Court has said that- "There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that Clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in Clause (1) is exhausted thereby. To say so would not be correct in principle."
13. In paragraph 812 in [PRECEDENT]'s case (supra), the Apex Court has said that there are two types of reservations, which may, for the sake of convenience, be referred to as vertical reservation and horizontal reservation. The reservation in favour of SC, ST and OBC candidates under [SECTION] may be called vertical reservation whereas reservation in favour of physically handicapped under [SECTION] can be called horizontal reservation. Horizontal reservations cut across the vertical reserva-tions-what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to [SECTION]. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain-the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
14. From the aforesaid statement of Apex Court it is clear that the reserve category candidates, what is called vertical reservationists, selected on their own merit shall not occupy reserve category seats; there can be a reservation under [SECTION] of the [ACT] besides 16(4) for backward classes of citizens. The reservation for woman candidates is not a reservation for backward classes and thus can be referable to under [SECTION] of the [ACT] and would be adjusted in horizontal reservation if woman candidates apply taking the benefit of reservation for women. Since the amendment providing reservation to the woman candidates is not under challenge, I need not go into the question whether reservation provided to women under [SECTION] of the [ACT] is justified or not; nor into question whether Circular issued by the State dated 31.5.2000 is valid or not because it does not treat woman candidates below 33 years of age as reserve woman category candidates, because none of the petitioners belongs to that category. Suffice is to say that [SECTION] authorizes reservation apart from the reservation which can be given to the backward classes of citizens under [SECTION] of the [ACT].
15. It is submitted by counsel for petitioner that in Annexure-1 Chart issued by the State, of the vacant posts under State and subordinate service, specific posts are to be filled in from amongst the male category candidates only and, therefore, the Circular dated 31.5.2000 issued by the State whereunder the posts can be filled in by female candidates is in breach of published policy decision of the State and, therefore, not sustainable in law. The argument cannot be accepted. The categorization made by the State in Annexure-1 under the heading 'male General, SC, ST or OBC candidates cannot be read as seats reserved for only male candidates that has to be read as seats meant for male and female candidates. The seats are shown under the heading 'male only for the purpose of showing separate number of female seats reserved for female candidates in each category for horizontal reservation.
16. Had it been not so, the reservation of the seats only for male candidates would be hit by [SECTION] of the [ACT] whereby the discrimination is prohibited on the basis of sex. No seats, in the circumstances of present case, in the General, SC, ST or OBC categories can exclusively be allocated for male candidates. Therefore seats outside reservation, of General, SC, ST and OBC categories would be open seats and to be considered for the male and female both for the purposes of appointment. There is no prohibition in the Rule that seats of General, SC, ST and OBC categories cannot be filled in by woman candidates who do not claim benefit of the reservation. If a woman candidate appear, without claiming reservation, in the examination and is being selected on her own merit, she can certainly be allocated the seat on the basis of her own merit and if such allocation is made of the woman candidate on the basis of her merit, that seat cannot be said to be occupied by the woman candidate on the basis of reservation. The Government in its wisdom has differentiated the woman candidates for consideration for appointment on the post on the basis-whether they have to be considered as woman reserved quota candidates or general category candidates and for the said purpose the explanatory Circular dated 31.5.2000 has been issued, which, according to my opinion, does not transgress any provision of the [ACT] or the Rules. The candidates, do not fall in the category of reserved seats for women, shall be considered on their merit in respective categories. It is not contrary to any Regulation or Circular or the Rules framed by the Government governing the appointments.
17. For the aforesaid reasons the petitions fail and are dismissed. However, there shall be no order as to costs.