1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R (1) S. B. CIVIL WRIT PETITION NO.8201/2007 SIKANDAR YADAV (EX-SERGEANT) V. RPSC, AJMER & ORS. (2) S. B. CIVIL WRIT PETITION NO.8202/2007 DEVA RAM SARAN (EX-SERGEANT) V. RPSC, AJMER & ORS. (3) S. B. CIVIL WRIT PETITION NO.8203/2007 BABULAL JALVANIYA (EX-SERGEANT) V. RPSC, AJMER & ` OTHERS. (4) S. B. CIVIL WRIT PETITION NO.8204/2007 LIKHMA RAM BHARI (EX-SERGEANT) V. RPSC, AJMER & OTHERS. (5) S. B. CIVIL WRIT PETITION NO.8205/2007 RAM BUX BHAKAR (EX-SERGEANT) V. RPSC, AJMER & ORS. (6) S. B. CIVIL WRIT PETITION NO.8206/2007 HEM SINGH (EX-SERGEANT) V. RPSC, AJMER & ORS. (7) S. B. CIVIL WRIT PETITION NO.8210/2007 KUMBA RAM DHAKA (EX-SERGEANT) V. RPSC, AJMER & OTHERS (8) S. B. CIVIL WRIT PETITION NO.8211/2007 NARAYAN SINGH (EX-SERGEANT) V. RPSC, AJMER & ORS. (9) S. B. CIVIL WRIT PETITION NO.8212/2007 OMPRAKASH CHAHAR (EX-SERGEANT) V. RPSC, AJMER & OTHERS (10) S. B. CIVIL WRIT PETITION NO.8213/2007 RAMESHWAR RAM CHABA (EX-SERGEANT) V. RPSC, AJMER & OTHERS 2 (11) S. B. CIVIL WRIT PETITION NO.8214/2007 MUKAND SINGH (EX-SERGEANT) V. RPSC, AJMER & ORS. (12) S. B. CIVIL WRIT PETITION NO.8215/2007 MANEE RAM (EX-SERGEANT) V. RPSC, AJMER & ORS. (13) S. B. CIVIL WRIT PETITION NO.8216/2007 SHIMBHU RAM CHOUDHARY (EX-SERGEANT) V. RPSC, AJMER & ORS. (14) S. B. CIVIL WRIT PETITION NO.8217/2007 JAGVIR SINGH (EX-SERGEANT) V. RPSC, AJMER & ORS. (15) S. B. CIVIL WRIT PETITION NO.127/2008 NATHU RAM V. RPSC, AJMER & ORS. (16) S. B. CIVIL WRIT PETITION NO.1576/2008 BIJENDRA SINGH & ANR. V. RPSC, AJMER & ORS. DATE OF ORDER ::: 09/04/2008 HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. N.R.Choudhary, for Petitioner (s). Mr. J.P.Joshi, for respondent – RPSC. Mr.Rameshwar Dave, Addl. State Counsel. Mr. S.S.Ladrecha, State Counsel. This bunch of writ petitions has been filed by the petitioners, raising grievance regarding non-extension of the benefit of reservation in favour of ex-servicemen. 3 It is contended by the learned counsel for the petitioners that after holding preliminary examination for Rajasthan State and Subordinate Services, the respondents should declare result separately for ex-servicemen which then should be fifteen times to the vacancies notified for the ex-servicemen. It is further prayed that the compliance of Rule 20 (1) of the Rules of 1999 may also be made by the respondents. During the pendency of the writ petitions, the result of the preliminary examination was declared and pursuant to the order of this Court dated 14.03.2008, learned counsel appearing for the R.P.S.C. had given statement of result showing as to how many ex-servicemen could find place for appearance in the Main examinations. The perusal of the statement of shows that as against total 46 posts meant for ex-servicemen, only 11 candidates could pass out preliminary examination and, thereby, if the RPSC proceed with the final selections, then the ex-servicemen would not get a chance of consideration, even to the extent the post is reserved for them, more so, when as per the Rules of 1999, the representation of each category should be to the extent 4 of 15 times of the posts reserved. Learned counsel appearing for the respondents, on the other hand, submits that the result of the preliminary examination has been declared, keeping in mind the Rules of 1999 and there category denote only open category, Scheduled Castes, Scheduled Tribes and OBC, thus requirement of declaring result to the extent of 15 times applies to those category only and, in that case, the action of the RPSC cannot be faulted only for the reasons that ex- servicemen could not come up to the extent of cut off marks fixed for each four categories, more so, when Commission is having authority to decide the minimum marks for determining the merit for consideration of the candidature of the candidates for final examination. Learned counsel for the petitioners, referring to the judgment of the Hon'ble Apex Court reported in 1994 Supp. (2) SCC 55, State of Orissa v. Mohd. Yunus and Others, submits that the issue involved in the present matter was otherwise an issue even before the Hon'ble Apex Court and in the judgment aforesaid, the following directions were 5 given by the Apex Court. Relevant portion is quoted below:- “3. The only question that arises for consideration in this appeal is whether the respondent could be treated on a par with members of the Scheduled Castes and Scheduled Tribes for lowering the standard for selection by the Public Service Commission. The tribunal following the judgment of the Full Bench of Punjab and Haryana High Court in the case of Jagdish Rai v. State of Haryana (SLP © No.10343 of 1993) directed that the respondent is entitled to the same benefits. We are unable to agree with the tribunal and the ratio in the Full Bench judgment. The members of the 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 posts 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 or other conditions. It is stated by Mr. Mehta, learned counsel for the State that the Commission has put a minimum of 780 marks as qualifying marks for the general candidates. The respondent admittedly belongs to the general category. Though three posts have been reserved for ex-servicemen, if a candidate who belongs to ex-servicemen gets eligibility by securing 780 minimum 6 marks, irrespective of the fact whether he/they comes by general selection or not, by virtue of reservation made to the ex- servicemen, he/they become eligible for consideration. This relaxation has been made in contradistinction with other general candidates but for which the respondent would be ineligible. The fixation of the general standard marks prescribed for the general candidates would undoubtedly be a handicap to the ex- service personnel who are made to compete with youngsters after several years of service put in the defence service. The State Government and the Public Service Commission are directed to consider the desirability to fix a lesser standard than that of the general candidates as ex-servicemen have served the nation in its defence and in the process they may not come on a par with the general candidates. Therefore, some relaxation in their behalf would be necessary to meet the exigencies of copying up with the reservation given to them. Otherwise, reservation would be illusory. The State Government in consultation with the Public Service Commission would decide this issue within a period of three month from the date of the receipt of this order and thereafter consider the case of the respondent accordingly.” Referring to the judgment, learned counsel for the petitioners submits that similar directions should be given 7 to the RPSC, so that the ex-servicemen may get right of proper consideration for State and Subordinate Services pursuant to the selection under consideration. It is further contended that while the female candidates were given 20% reservation and it being a case of horizontal reservation, the respondents have given the right of consideration to the female candidates to the extent of fifteen times in their respective category by even lowering down the cut off marks and the case of ex-servicemen being a case of horizontal reservation, similar benefit has not been given in a discriminatory manner. I have considered the submissions made by the learned counsel for the parties and perused the record as well as the judgment of the Hon'ble Apex Court. The basic grievance raised by the petitioners is that regarding non-grant of right of consideration in main selection to the extent reservation provided for ex- serviceman. It is, otherwise, contended that the ex- servicemen should have been given right of consideration to the extent of fifteen times to the post reserved for them by 8 declaring the result accordingly, all the ex-servicemen should be given chance of consideration in the main selection as otherwise given to female candidate. For that purposes, the perusal of rule shows that reservation is being provided in favour of ex-serviceman but it being a horizontal reservation separate result cannot be prayed, however, that is not the end of the matter, because looking to the result declared, it reveals that the ex-servicemen would not be getting representation, even to the extent of the post kept reserved and, thereby, the reservation otherwise provided for ex-servicemen is nullified, hence, to balance the equities, it is necessary to direct the respondents to undertake the exercise as otherwise directed by the Hon'ble Apex Court in the case of State of Orissa v. Mohd. Yunus and Others (Supra) and if need be, to relax the standard for ex-servicemen, in view of the observations made by the Hon'ble Apex Court, where similar issue came up for consideration and was otherwise decided. The effort of RPSC should be to provide proper chance of consideration to the ex-servicemen, so that looking to the post reserved for ex-servicemen, desirable number of ex-servicemen may get chance of consideration in the final selection. 9 It is more so when preliminary examination is conducted to short-listing of the candidates for main selection and marks obtained in the above referred exams. are not counted in main examination thus actual right of consideration is in the main examination only. Now in view of the action of the RPSC, ex-serviceman would not be getting even a right of consideration in main selection to the extent of the post reserved for them, thus RPSC should have included ex-serviceman to reasonable times to the post reserved for them. In that regard, necessary exercise may be undertaken by the respondents in the light of the judgment of the Apex Court referred to above within a period of one month. The candidates who now find place pursuant to the decision of the respondents their results should be declared within a period of seven days after considering their cases as directed above within a period of one month. So far as the issue regarding reservation in favour of the female and application of reservation horizontally, it is 10 necessary to clarify that in case of female reservation, necessary reservation is provided within their category say 20% in the open category and the same way, 20% for each other category, like Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC), therefore, to balance 20% reservation within the category, the respondents declared results separately for female candidates, however, so far as the ex-servicemen is concerned, they have been given reservation on all over basis and, therefore, same yardstick as otherwise is applied in the case of female candidate. It is, however, observed that for proper representation of ex-servicemen, respondents would be taking their action in the light of the judgment of the Apex Court, thus the main grievance of the petitioner regarding grant of proper representation and right of consideration in the final selection is concerned, that will come to an end. It is, however, made clear that even after taking necessary decision by the respondents, in the light of the judgment of the Apex Court, if anything remains, the petitioners may approach this Court again. Learned counsel for the petitioners further submits 11 that while considering the ex-servicemen as as per direction candidates coming out of the State of Rajasthan should not be considered. Learned counsel appearing for the RPSC submits that consideration against reserved post would be given to the ex-servicemen of the State of Rajasthan only. With the aforesaid directions, these writ petitions are disposed of. (M. N. BHANDARI), J. scd