IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 1277 of 1999 PRAKASH CHANDRA CHOUDHARY V/S RPSC,AJMER & ANR Mr. SANJAY MATHUR, for the appellant / petitioner Mr. JP JOSHI, for the respondent Date of Order : 4.4.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER ----- Heard learned counsel for the appellant. The appellant has filed the appeal against the judgment of the learned Single Judge dated 13.08.99 dismissing the petitioner's writ petition. The necessary facts are that the petitioner appellant applied in response to the advertisement dated 10.05.99 issued by RPSC for appearing in competitive examination for subordinate services. The petitioner qualified in the main examination and was directed to appear before the Selection Committee for interview on 06.07.99, on which date he reported but he was not permitted to face interview on the ground that he cannot be considered as a member of OBC, as he is covered by the principle of exclusion of creamy layer. The communication given to the petitioner in this regard has been produced as Annex.1. The petitioner's contention is that a notification issued in this regard does not debar the candidate as is clear from the notification Annex.2 and Annex.3 wherein, the descendants of wards of the persons holding Group B/Class II Officer of Central and State Services are excluded from the reservation. It is contended that the provision clearly provides for exclusion of sons and daughters of parents, both of whom are Class II officer, parents of whom only the husband is Class Officer and he gets into Class I at the age of 40 or earlier, or parents both of whom are class II officers, and all of them dies or suffers permanent incapacitation, or either of them has had the benefit of employment in any International Organization etc for a period of not less than five years before death or permanent incapacitation. Thus, it is contended that since the disqualification attaches only on the basis of either of the parent being in employment, the petitioner could not be excluded from reservation. We have considered the submissions of the learned counsel for the appellant. Learned Single Judge has found that the proposition is preposterous, for the reason that if the petitioner's children can be deprived because of income of the petitioner from benefit of belonging to OBC category, why petitioner himself cannot be excluded. In our view, may be that on the face of it, this purports for providing reservation to the extent of 21% in favour of Backward classes, as notified by Department vide notification dated 28.09.93 but then the reservation has been provided subject to the conditions mentioned therein which condition operate excluding the person to be eligible to claim reservation, if the candidate falls in any of such categories catalogued as conditions. In our view, however, the fact does remain that in the very nature of things, reservation though admissible under Constitution, but it runs contrary to the spirit of Article 14 & 16 of the Constitution of India and therefore, the provision for reservation is required to be construed in such a manner that the person not entitled to the benefit of reservation, in view of the letter and spirit of the notification, may not avail the benefit, by resorting to hyper technicalities, or some subterfuge. Considered from that point, it is writ large, that very nature of conditions do show, that these conditions are intended to exclude the persons, who are above a specified contemplated standard of living. Obviously, from the catalogued conditions, it could not be interpreted that the person who is already holding the post, which if held by first parent or parents would have rendered him or his descendants disentitled to reservation would himself claim reservation. In that view of the matter, the gap is required to be filled, and the notification is required to be read, in the manner, that even where the incumbent himself is holding any of the post mentioned in Annex.2, then he too would not be entitled to get reservation. Consequently, though for different reasons, we do not find any ground to interfere with the order impugned. The appeal is therefore, dismissed. ( SANGEET LODHA ),J. ( N P GUPTA ),J. bjsh