IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 1. SPL. APPL. WRIT No. 401 of 2008 R.P.S.C., AJMER V/S RAMESHWAR RAM CHABA (EX- SER.)& ORS 2. SPL. APPL. WRIT No. 517 of 2008 R.P.S.C., AJMER V/S RAM BUX BHAKAR (EX- SER.)& ORS 3. SPL. APPL. WRIT No. 518 of 2008 R.P.S.C., AJMER V/S KUMBHA RAM DHAKA (EX- SER.)& ORS 4. SPL. APPL. WRIT No. 519 of 2008 R.P.S.C., AJMER V/S BABU LAL JALVANIYA (EX- SER.)& ORS 5. SPL. APPL. WRIT No. 520 of 2008 R.P.S.C., AJMER V/S NATHU RAM (EX- SER.)& ORS 6. SPL. APPL. WRIT No. 521 of 2008 R.P.S.C., AJMER V/S MUKUND SINGH(EX- SER.)& ORS 7. SPL. APPL. WRIT No. 522 of 2008 R.P.S.C., AJMER V/S NARAYAN SINGH(EX- SER.)& ORS. 8. SPL. APPL. WRIT No. 523 of 2008 R.P.S.C., AJMER V/S MANEE RAM (EX- SER.)& ORS 9. SPL. APPL. WRIT No. 524 of 2008 R.P.S.C., AJMER V/S OM PRAKASH CHAHAR(EX- SER.)& ORS 10. SPL. APPL. WRIT No. 525 of 2008 R.P.S.C., AJMER V/S SIKANDAR YADAV (EX- SER.)& ORS 11. SPL. APPL. WRIT No. 561 of 2008 R.P.S.C., AJMER V/S LIKHMA RAM BHARI (EX- SERGEANT)& ORS 12. SPL. APPL. WRIT No. 567 of 2008 R.P.S.C., AJMER V/S DEVA RAM SARAN (EX- SERGEANT)& ORS 13. SPL. APPL. WRIT No. 568 of 2008 R.P.S.C., AJMER V/S HEM SINGH(EX- SERGEANT)& ORS Mr. TARUN JOSHI, for the appellant / petitioner Mr. M.MRIDUL, & N.R. Chowdhary and for the respondents. Date of Order : 21.7.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MANAK LALL MOHTA,J. ORDER ----- This bunch of appeals arises out of the judgment of learned Single Judge dt. 19.4.2008, deciding 16 writ petitions, and disposing them of, with a direction, that to provide representation to ex-serviceman, the respondents would be taking their action in the light of the judgment of the Apex Court, rendered in the case of State of Orissa Vs. Mohd. Yunus, reported in 1994 Supp. (2) SCC-55, and if even after taking necessary decision by the respondents, anything remains, the petitioners may approach this Court again. 2 Thus, in substance the impugned judgment has been rendered by following the judgment of Hon’ble the Supreme Court in Mohd. Yunus’s case. In Mohd. Yunus’s case the Tribunal followed the Full Bench judgment of the Punjab & Haryana High Court, deciding the matter, and observed, that members of SCs and STs have been given benefit by operation of Article 16(4) of the Constitution. Any concession or relaxation in their favour is in compliance of the constitutional mandate to provide adequate representation of them in any service or post under the State. Any other category, other than SCs and STs cannot be put on a par with them in the matters of relaxation of the conditions for recruitment of other conditions, and it was noticed, that in view of the minimum marks put by the Public Service Commission, as qualifying marks, which is the marks prescribed for the general category, also would undoubtedly be a handicap to the ex-serviceman personnel, who are made to compete with youngsters, after several years of service, and therefore found, that some relaxation in their behalf is necessary to meet his exigencies of coping up with the reservation given to them, and therefore, the State Government was directed to decide the issue within a period of three months in consultation with the Public Service Commission, and thereafter consider the case of the incumbents accordingly. 3 Obviously the judgment of Hon’ble the Supreme Court is required to be followed, in its letter and spirit as well. In that view of the matter, when the matter earlier came up, we requested the learned counsel for the respondent to point out, as to what has been the outcome of the aforesaid judgment, and the decision taken by the concerned State in that regard. Learned counsel placed for our perusal the reservation made by the State of Punjab, State of Orissa, State of Haryana, the Office Memorandum issued by the Government of India on 1.12.1994, and so on, and from over all perusal of all those, all that it transpires is, that a horizontal reservation has been provided to this category of persons. While the Rules of the State of Rajasthan, being the Rajasthan Civil Services (Absorption of Ex-servicemen) Rules, 1988 do also show, that it already makes over-riding provision for the reservation of ex-serviceman, by couching the language of Rule 2 with nonobstante clause. Thus, it is clear, that the reservation in favour of ex- serviceman has already been provided in the State of Rajasthan, as well. Then the question, as to how the reservation is to be implemented, does arise, and it has repeatedly been recognised by the Hon’ble the Supreme Court, including by the Constitutional Bench, in Indira Sawhney’s case (Indira Sawhney Vs. Union of India reported in 1993 SC-477) that the reservation for SC, ST and Other Backward Classes under Article 16 (4) would be vertical reservation, whereas the 4 reservation in favour of physically handicapped, under Article 16(1) is to be treated as horizontal reservation. In view of the established legal proposition, as propounded by Hon’ble the Supreme Court, laying down the upper cap in the matter of reservation, obviously no further vertical reservation is possible, as reservation is already in force rather at a saturated level. Apart from the fact, that Article 16(4) do not contemplate any such vertical reservation, in favour of ex-serviceman. The inevitable result of the above is, that reservation can be provided to the ex-serviceman, only as a horizontal reservation, and that has clearly been provided under the Rules. Not only that, a look at the advertisement issued by the Commission appellant does show, that specified number of seats have been reserved for the candidates belonging to category of ex-serviceman, in the Subordinate Service, specified number of seats have been reserved for physically handicapped persons, specified number of seats have been reserved for ex-serviceman, then specified number of seats have been reserved for outstanding athletes, and specified number of seats have been reserved for departmental candidates. Obviously all these reservations have to operate horizontally, and at par. Thus, when provision has already been made in this regard in the Rules, for making reservation in favour of ex-serviceman, and posts have been reserved in the advertisement itself, by the Commission 5 appellant, in our view, letter and spirit of observations, made by Hon’ble the Supreme Court, in Mohd. Yunus’s case, do stand fully complied with. Learned counsel for the respondent pressed hard upon us, to direct that a separate lower level of merit should be provided for this category of candidates. In our view, even that would tantamount to making vertical reservation, instead of horizontal, and that obviously can not be accepted. It is not open to us to comment upon consequences of reservations, that are being faced by the country, as reservations have been provided under Article 16(4), 164-A, and 16(1) of the Constitution, but then, leaning in favour of reservation, even to micro millimetre, beyond the one provided in the Constitution, would be doing violence with the language of Article 16(4) of the Constitution, which we are neither expected, nor are inclined to. We do not mean to deny the reservation, even to an extent of micro millimetre less, from the one provided under and in accordance with the Constitution, but then at the same time we are not entitled to increase to an extent of even a micro millimetre more, nor do we intend to extend it. The net result of the aforesaid discussion is, that we do not find ourselves in a position to sustain the impugned judgment. 6 Consequently, the appeals are allowed. The impugned judgment is set aside, and the writ petitions are dismissed. The parties shall bear their own costs. (MANAK LALL MOHTA), J. (N.P.GUPTA), J. 7