1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5106/03 Imran Khan vs. State & Ors. Date of order : 6/3/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Prasad for the petitioner. Shri Pradeep Kalwania, Addl. Govt. Counsel for the respondents. ****** Controversy raised in tis writ petition is squarely covered by judgement of this Court in Kavita Choudhary vs. State & Ors.- 2006 (5) WLC (Raj.) 652 which was based on the constitution bench judgement of Supreme Court in Indira Sawhney & Ors. vs. Union of India-1992 Supp (3) SCC 217. The petitioner herein belongs to OBC category. He was denied appointment in spite of the fact that he had secured 65% marks, while the cut off marks in the general category is 56.5%. It is contended that since the cut off marks in OBC category is 65.50, therefore he was not granted appointment in that category. However, he should be granted appointment in general category as the last cut off marks in the general category was 56.5%. The respondents however did not consider 2 the case of the petitioner in general category because he has opted for OBC category. This Court on consideration of the law laid down by Constitution Bench of Supreme Court in Indira Sawhney, supra and various other Supreme Court judgements held in para 13 and 14 of judgement in Kavita Choudhary, supra, as under: 13. Critical analysis of the law referred so discussed would show the underlying philosophy of reservation made in favour of SC, ST and OBC with reference to Article 15(4) and 16(4) of the Constitution of India. These provisions confer certain benefits on the persons belonging to these categories which are not in substitution of any other right, which may be otherwise available to them as citizens of country. Benefit of reservation does not substitute or supplant any other right of a person belonging to SC, ST and OBC. Such benefit would be in addition to an already existing right including the fundamental right of equality. If any scheme of reservation or the procedure evolved with a view to giving effect to such scheme, is made to depend upon the condition of truncating the 3 fundamental or any other right of an individual, such scheme of reservation would be contrary to the constitutional provisions and the law, to the extent it curtails fundamental right or any other right of a person belonging to such category would be liable to be declared illegal. Reserving certain posts for different groups of the community in the first instance means that these posts are meant for members belonging to such specified group. This is an additional benefit conferred on them. On account of such additional benefit however they are not precluded from claiming ordinary benefits otherwise available to them. Members belonging to SC, ST and OBC for whom reservation of posts is made are not reserved for these posts although its converse is true. They cannot be asked to occupy only reserved posts. They would be free to occupy any posts including unserved posts. However, the requirement of law is that while claiming appointment against unserved posts, they should prove their merit like any other citizen, who is not entitled to the benefit of reservation. No provisions of law whether substantive or procedural, can be so interpreted as to run contrary to this basic tenet of the Constitution of India. 4 14. Examined in the light of the settled proposition of law as discussed above, it would be evident that the respondents in the present case have mis-applied the law of reservation. This would be evident from a bare perusal of their reply which shows the respondents have prepared separate merit lists for each of categories, namely, general category, OBC, SC and ST. In doing so, they have completely excluded consideration of candidates belonging to OBC against the vacancies meant for general quota just because the OBC candidates in their application forms requiring them to fill up their category in the relevant column described themselves as belonging to OBC category. The stand taken by the respondents that the case of the petitioner against general posts could have been considered only if she had applied as general category candidate cannot be appreciated in law. There insistence that since she applied only as a candidate belonging to OBC, her case could be considered against the post reserved for that category alone cannot be approved. Their argument that the petitioner was free to choose either of the two categories and could apply also as a general category candidate is difficult to appreciate 5 in the light of proposition of law settled by series of judgements rendered by Hon'ble Supreme Court. Such a procedure negates their right to consideration in keeping with the spirit of Articles 14 and 16 of the Constitution of India. What are often described as general posts, to borrow the expression used by their Lordships in Indra Sawhney, were in fact “in the open competition field.”. Their Lordships referred to them as `non- reserved posts'. One can call the category for which these posts belong, as unreserved category. In giving effect to the policy of reservation, the respondents have to broadly divide all posts only in two categories, one unreserved category and another reserved category. Reserved category can further be sub-divided into categories of OBC, SC and ST. They should first initiate the process of making appointment against the posts of unreserved category. In doing so, they have to consider all candidates irrespective of their category based on reservation whether OBC, SC or ST. Having filled up all unreserved post, they can proceed to make appointment against the posts of reserved category in the order of merit from amongst the candidates available at that stage.” 6 The writ petition is accordingly allowed. The respondents are directed to consider the case of the petitioner for appointment on the post of Constable in general category, if he is adjudged suitable with effect from the date the candidate immediately below him in such category was appointed. For the intervening period, however, he shall be entitled to notional benefits. However, his appointment shall be deemed to have been made on the date, the person immediately below him in merit is appointed. Compliance of the judgement be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/