D.B. CIVIL SPECIAL APPEAL (WRIT) NO.189/2007 Mamraj Sharma Vs. State of Rajasthan & Ors. Date of Judgment :: April 01, 2008. HON'BLE THE CHIEF JUSTICE MR.NARAYAN ROY HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Dr. Vikram Singh Nain for the appellant. *** The delay in filing this appeal is condoned. The matter was heard on merits. This appeal seeks to challenge the judgment dated 2.5.2006 passed by the learned Single Judge in SB Civil Writ Petition no.4092/1996 whereby the writ petition of the appellant was dismissed on the premise that since the whole selection process is over with the process of recruitment having been initiated pursuant to the advertisement on 11.5.1995, the relief as sought for cannot be granted. In order to satisfy ourselves on the correctness of dismissal of writ petition, we have also heard the matter on merits of the case. Learned counsel for the appellant has argued that most of the appointments have been given to the candidates belonging to the reserved category but very few candidates from the general category have been appointed. The counter affidavits filed by the respondents clearly indicates that the marks secured by two writ petitioners namely, writ petitioner no.1 Shri Mamraj Sharma were 65.33% whereas the writ petitioner no.2 namely Shri Rajesh Kumar Sharma were 68.35%. The respondents in their counter affidavit -2- have clarified that the last candidate appointed in the general category secured 77.54% marks. It is trite law that if the candidate, who may even though belong to OBC, SC/ST, were able to secure more marks than the last candidate in the general/open category, they shall be entitled to appointment in open/general category. Reference in this connection may be made to the judgment of the Constitution Bench of the Supreme Court in Indra Sawhney & Ors. Vs. Union of India & Ors., 1992 SCC Supp.(3) 217; paragraph 811 of which is as under :- “In this connection it is well to remember that the reservations under Article 16(4) 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.” We, therefore, do not find any merit in this appeal which is accordingly dismissed. (MOHAMMAD RAFIQ),J. (NARAYAN ROY),CJ. Skant/-