1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 1122/2006 (Smt. Komal Vs. State of Rajasthan & Ors.) ......... Date of Order : 26/11/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. N.K.Bohra for the petitioner. Mr. R.R.Kanwar, Dy. Govt. Counsel for the respondents. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondents to provide appointment to her on the post of Nurse Gr.II in pursuance of the advertisement Annex.1 in the General Category female. I have heard learned counsel for the parties. Learned counsel for the petitioner submits that the controversy involved in the instant writ petition stands concluded by the decision of this Court in Jaiwanti Solanki and Another Vs. State of Rajasthan and Ors., SBCW No.784/2004 decided on 14.12.2005. Learned counsel for the petitioner further submits that 2 though the petitioner applied for the post of Nurse Gr.II under the category “Other Backward Class” since she belongs to that category and cut off marks for OBC female category was 63.321%, whereas the petitioner secured 62.39% marks, but so far as the General Category (Female) is concerned, the last candidate selected and appointed by the respondents has secured 60.012% marks and the respondents No.3 and 4 who are less meritorious have also been selected and appointed though they secured 60.038% and 60.012% marks respectively and as such are much below the marks secured by the petitioner. It has been averred by the petitioner that in pursuance to advertisement Annex.1, the petitioner applied for the post of Nurse Gr.II on contract and fixed amount basis. In all 825 vacant posts were advertised vide Annex.1. The petitioner passed Senior Secondary Examination in the year 1993 and thereafter passed the General Nursing and Midwifery Course held in May 2002 and as such she is eligible for appointment on the said post. The petitioner belongs to OBC, a certificate to that effect has been placed on record as Annex.4, and she applied under the OBC Female category. As per the criteria laid down by the respondents as per the advertisement Annex.1, the petitioner secured 62.39% marks, whereas the respondents No.3 and 4 secured 60.038% and 60.012% marks respectively, though the respondents No. 3 and 4 were in General category, female. So far as the specific averment made by the petitioner with regard to 3 securing of the marks by the petitioner as also by the respondents No. 3 and 4 are concerned, this fact has not been denied by the respondents in the reply to the writ petition. However, the respondents came with a case that as per Rule 7-B of the Rajasthan Medical and Health Subordinate Service Rules, 1965 (for short 'the Rules of 1965 hereinafter) 30% reservation to the women candidates has been provided and the petitioner belongs to OBC category and therefore, her candidature was required to be considered under the OBC female category and the last OBC female candidate who has been selected secured 63.321% marks, whereas the petitioner has secured 62.39% marks. The case of the petitioner was considered only to the category to which the petitioner belongs i.e. OBC female. A similar controversy came up before this Court in Jaiwanti Solanki and Another Vs. State of Rajasthan and Ors., SBCW No.784/2004 decided on 14.12.2005 wherein also the respondent State took the same stand that the case of the OBC female candidate was to be considered under that category alone and the candidates who are belonging to General female category cannot be equated with that of the OBC female category. In that case also, a similar stand was taken that so far as the respondents No. 3 and 4 are concerned, they belong to General category and therefore, their candidature was considered against the vacancies 4 reserved for General female category. The last candidate belongs to General female candidate secured 60.012% marks and the respondent No.3 secured 60.038% marks and the respondent No.4 secured 60.012% marks, since they came in the merit they have been granted appointment under the category General female. This Court held that the stand taken by the respondents as noticed above is absolutely misconceived and is absolutely erroneous as no reservation is prescribed for general categories. The reservation prescribed is only for socially and educationally backward categories, those are, Scheduled Castes, Scheduled Tribes and OBCs. It is well settled that if a person belonging to reserved categories stands in general merit then his/ her candidature is required to be considered in accordance with general merit. Appointment in accordance with general merit cannot be denied to a person belonging to a Scheduled Castes, Scheduled Tribes or OBCs, otherwise that shall be contrary to the spirit of the object behind providing reservation to those categories. The authorities empowered to implement reservation provided for Scheduled Castes, Scheduled Tribes and OBCs must understand that the percentage to the extent reservation is prescribed is minimum quota required to be filled in. It should always be kept in mind that the reservation policy is framed with an object to uplift social and educational status of the underprivileged classes of our society. The interpretation put forth in present case is totally contrary to 5 the object for providing reservation of OBCs, while making appointments as it restricts appointment to the extent of reservation prescribed, as if by prescribing a maximum limit is prescribed with regard to the categories for benefit of whom reservation is in prevalence. On the above premises, this Court held that the petitioners belong to OBC but they are having marks sufficient to be considered for appointment as a candidate belonging to general female category, therefore, it was obligatory for the respondents to consider their appointment in that category and to appoint them as Nurse Gr.II, if they are otherwise eligible. In R.K.Sabharwal & Ors. Vs. State of Punjab and Ors., AIR 1995 SC 1371, 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. In Union of India & Ors. Vs. Virpal Singh Chauhan and Ors, (1995) 6 SCC 684, the Hon'ble Supreme Court held that while 6 determining the said number of candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation), shall not be counted as reserved category candidate. A Coordinate Bench of this Court, in Mahesh Kumar and Anr. Vs. State of Rajasthan and Anr., WLR 1998 Raj. 49, held that candidates belonging to O.B.C., if found to have been appointed as per seniority, he is to be treated to have been promoted/appointed from amongst general category, even though he belongs to O.B.C. The facts of the instant writ petition are almost nearer rather identical to that of the facts of SBCW No. 784/2004 Jaiwanti Solanki and Anr. Vs. State of Rajasthan and Ors. In the instant case, it has not been disputed by the respondents that the last general candidate selected under the female category secured 60.012% marks and the petitioner is having 62.39% marks in female category. In the circumstances, therefore, the respondents were not justified in denying consideration to the petitioner for appointment on the post of Nurse Gr.II. In view of the aforesaid discussion, the writ petition is allowed. The respondents are directed to consider the candidature of the petitioner for the purpose of appointment according to her 7 merit in general category of women and if appointment is given to any person having less marks than the petitioner in that category, the appointment be accorded to the petitioner also, if she is otherwise eligible. No order as to costs. Stay petition also stands disposed of. (H.R.PANWAR), J. rp