(1) Smt. Pravin Swami Vs. State of Rajasthan & Another IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.5910/2005. (Smt. Pravin Swami Vs. State of Rajasthan & Another) DATE OF ORDER : August 14, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. P.P. Choudhary for petitioner. Mr. Rajesh Bhati, Counsel for the State. BY THE COURT : In this writ petition, the petitioner is claiming direction to the respondents for providing appointment to her in the OBC category on the ground that she has secured 78.61 per cent marks and candidate with 76.34 per cent marks has been provided appointment in the General category. According to the petitioner, the candidature of the petitioner has been considered against the vacancies reserved for OBC candidates because the petitioner belongs to OBC (2) Smt. Pravin Swami Vs. State of Rajasthan & Another category; but, in the OBC category, the percentage of marks goes higher than the general category candidates, therefore, the petitioner was not considered for appointment in the OBC category whereas in the general category candidates who secured lesser merit than the petitioner have been provided appointment. I have considered the arguments advanced by learned counsel for the petitioner and so also perused the record. In the reply filed by the respondents, it is admitted that the petitioner has obtained 78.61 per cent marks and she was at S.No.130 in the merit-list of OBC (Female) category in which the petitioner applied. The last merit in the OBC (Female) category for the purpose of appointment was 79.67 per cent marks; but, admittedly, the petitioner secured less marks than the candidate who has been appointment in the category of OBC (Female), therefore, the petitioner was denied appointment. However, in para 5 of the reply, it is admitted by the respondents that one Durgesh Nandini who secured 76.34 per cent marks has been given appointment because she filed her application in the General category whereas the petitioner has filed the application for considering her candidature in the category of OBC (Female). (3) Smt. Pravin Swami Vs. State of Rajasthan & Another In my opinion, the right of the citizen irrespective of the reservation is required to be considered as per Article 14 of the Constitution of India as per her merit in the General category and if the candidate is meritorious than certain candidates in the General category, in that event, the merit of the candidate whose candidature would otherwise be considered in the OBC (Female) category is required to be considered in the General category because, ultimately, under Article 14 and 16 of the Constitution of India, the merit of the candidate cannot be ignored simply by saying that despite her merit she cannot be considered for appointment in the General category as she applied in the category of OBC (Female). In the present case, admittedly, as per para 5 of the reply, appointment was given to candidate with lesser merit than the petitioner in the General category. In view of the aforesaid, this writ petition deserves to be accepted for appropriate direction. Hence the writ petition is allowed. The respondents are directed to examine the merit of the candidate in the General category first and if any candidate with lesser merit than the petitioner has been provided appointment, then, in that event, the claim of the petitioner to appointment may be considered and the petitioner may also be (4) Smt. Pravin Swami Vs. State of Rajasthan & Another provided appointment with effect from the date appointment has been provided to the candidate with lesser merit. The petitioner shall however not be entitled for any arrears of salary till the date of this judgment but she will be entitled to notional benefits in the service. The entire exercise shall be completed by the respondents within a period of three months from today. There shall however be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.