Rajasthan High Court - Jaipur
Vijay Kumar Gehlot And Ors. vs State Of Rajasthan And Ors. on 23 August, 1996
Equivalent citations: 1997(1)WLC1, 1996(2)WLN48
JUDGMENT B.R. Arora, J.
1. (1) Both the writ petition and the special appeal raise a common controversy and, therefore, they are being disposed of by this common judgment.
2. The petitioners are the members of Other Backward Classes (for short, 'the O.B.C). An advertisement dated 21.11.94 was issued by the Rajasthan Public Service Commission, Ajmer inviting applications for Direct Recruitment to Rajasthan State and Subordinate Services by combined Competitive Examination, 1994. The petitioners being eligible for these services, also, applied for the same. The Preliminary Examination for the State and Subordinate Services were held on 10.12.94 and the result of the Preliminary Examination was declared by the Rajasthan Public Service Commission, Ajmer (for short the Commission') on 10.4.96. The Commission neither gave the benefit of proviso to Rule 13 of the Rules, 1962 to keep the cut off marks upto 5% less than the general candidates to the OBC and the result of the Preliminary Examination was not declared category-wise. The petitioners, therefore, challenged the declaration of the result of combined examination by this writ petition and prayed that the respondents may be directed to publish a separate list of the result of O.B.C. candidates fifteen times of the total approximate number of the vacancies advertised by Advertisement Annexure. 1. It has, also, been prayed that the respondents may be directed to give benefit of the 5% less cut off marks to the O.B.C. candidates also as has been given to' the members of Scheduled Castes and the Schedules Tribes as per the proviso to Rule 13 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1962 (for short, 'the Rules, 1962).
3. The writ petition filed by the petitioners has been opposed by the State of Rajasthan as well as by the Rajasthan Public Service Commission. According to the respondents, the benefit of 5% less cut of marks as per Rule 13 of the Rules, 1962 is available only to the Scheduled Caste and Scheduled Tribes candidates and not to the candidates of Other Backward Classes and the Rules no where provides for category-wise publication of the result.
4. It is contended by the learned Counsel for the petitioners that (i) the benefit of 5% less cut of marks, as provided under proviso to Rule 13 of the Rules, 1962 should be extended to the candidates of Other Backward Classes also, as has been done In the cases of the candidates belonging to the Scheduled Castes and the Scheduled Tribes as Scheduled Castes, Scheduled Tribes and Other Backward Classes form the same class; (ii) the result of the preliminary examination should be declared category-wise and should include 15 times of the posts reserved for the Other Backward Classes; and (iii) the reservation policy made applicable to the Other Backward Classes cannot be implemented in its true sense without category-wise declaring the result.
5. Learned Counsel for the Commission as well as the learned Additional Advocate General, on the other hand, have submitted that the proviso to Rule 13 is applicable only to the Scheduled Castes and Scheduled Tribes candidates and not to the candidates of Other Backward Classes as they do not constitute the same class; and (11) the category-wise declaration of the result is not envisaged by the Rules.
6. I have considered the submissions made by the learned Counsel for the parties.
7. The first question which requires consideration is: whether the benefit of 5% less cut off marks available to the Scheduled Castes and Scheduled Tribes as per proviso to Rule 13 of the Rules, 1962, is available to the O.B.C. candidates also or it can be extended to them?
8. The Examination for Rajasthan State and Subordinate Services are conducted under the Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examination) Rules, 1962, made by the State Government under Article 309 of the Constitution of India. These Rules were framed in the year 1962 and at that time there was no reservation in the service for Other Backward Classes. Rules 3 of the Rules, 1962 deals with the Scheme of the Examination, Personality and Viva Voce Test. The proviso appended to Rule 13, which is relevant for resolving the present controversy, reads as under:
Provided further that if adequate number of candidates belonging to the Scheduled Castes/Scheduled Tribes are not available amongst the candidates to be declared qualified for admission to the Main Examination, the Commission may at their discretion, keep them cut off marks upto 5 (five) per cent less than the General Candidates.
The proviso appended to Rule 13 gives a discretion to the Commission to keep the cut off marks upto 5% less to the Scheduled Castes and the Scheduled Tribes candidates than the General Candidates if the number of the candidates belonging to Scheduled Castes and Scheduled Tribes are not available amongst the candidates declared qualified for admission to the Main Examination. The reservation in the service to the Other Backward Classes was made in the year 1994. By making the reservation in favour of Other Backward Classes, the benefit of proviso to Rule 13 available to the Scheduled Castes and Scheduled Tribes candidates automatically will not be available to the candidates belong to Other. Backward Classes. The proviso to Rule 13 of the Rules, 1962 has been made applicable by the State only to the Scheduled Castes and Scheduled Tribes candidates. For giving benefit of this proviso to the Other Backward Classes, the State Government has to make a provision in the Rules taking into consideration the realities and the circumstances prevailing in the State. In the absence of any provision providing benefit of 5% less cut off marks to the candidates of Other Backward Classes, the benefit of this proviso cannot be extended to the Other Backward Classes.
9. Though the expression "Backward Classes of the citizen" used in Article 16(4) of the Constitution of India, does not make any distinction between Scheduled Castes/Scheduled Tribes and the Other Backward Classes but the use of expression "Other Backward Classes" together with "Scheduled Castes and Scheduled Tribes" in Article 15(4) clearly indicates that the "Other Backward Classes" are other than Scheduled Castes and Scheduled Tribes and constitues a distinct class. Therefore it cannot be presumed that the proviso will automatically apply to the Other Backward Classes when the reservation has not been made in their favour. For applicability of the proviso to the Other Backward Classes, an amendment in the Rules, making it applicable to the "Other Backward Classes", has to be made and without relevant amendment in the Rules, the benefit of the proviso to Rule 13 of the Rules, 1962 cannot be extended to the candidates of Other Backward Classes. In the absence of the provision in the Rules, the benefit of 5% less cut off marks is not available to the O.B.C. candidates.
10. There is a Constitutional sanction of reservation for advancement of the Backward Classes of the society. It aims to eradicate our aged-long social injustice through an enlightened Constitutional order. Different Constitutional provisions for reservation in favour of the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes have been made. Articles 15(4) and 16(4) of the Constitution of India confer a privileged status on Scheduled Castes and Scheduled Tribes. Though different language has been used in Article 15(4) and Article 16(4) but the beneficiaries under both these Articles are the same. Article 15(4) authorises the State Government for making any special provision for the advancement of any socially and educationally backward class of citizen or for Scheduled Castes and Scheduled Tribes. Article 16(4) of the Constitution deals with the reservation in appointments in favour of "Backward Classes of Citizen", which, in the opinion of the State, is not adequately represented in the service under the State. Though this Sub-clause (4) of Article 16 does not separately mention the Scheduled Castes and Scheduled Tribes but it includes them in it. Reservation for Scheduled Castes and Scheduled Tribes in the matters of promotion to any class or classes of the posts in the service under the State in favour of the Scheduled Castes and Scheduled Tribes has, also been made under Aritcle 16(4) of the Constitution of India. The reservation in the Parliament and the State Legislature has, also been provided to them under Articles 330 and 332 of the Constitution of India but there is no such reservation provided for Other Backward Classes. Article 335 of the Constitution of India, also, deals with the claims of Scheduled Castes and Scheduled Tribes candidates to the service and posts while no such provision has been made for Other Backward Classes. Backward Classes other than the Scheduled Castes and Scheduled Tribes have been called as "Other Backward Classes" and they cannot be compared with the Scheduled Castes and the Scheduled Tribes. For giving benefit of reservation etc. as per Article 16(4) of the members of the Other Backward Classes, it has to be seen by the State whether the backward classes have been inadequately represented in the service under the State; while no such requirement is necessary for making reservation in the casses of the members of Scheduled Castes and the Scheduled Tribes. The reservation in service for the candidates of Scheduled Castes and Scheduled Tribes is directly proportionate to their population while reservation for Other Backward Classes is about 50% of the population percentage.
11. Article 46 of the Constitution of India which is part of Directive Principles of State Policy, declares the Objectives of the State to promote the educational and economic interests of the weaker sections of the people, in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social in justice and all forms of exploitation. The expression "weaker section" used in Article 46 is much wider than the "backward classes of the citizen". Other Backward Classes are only a part of the "weaker section".
12. The above discussion, therefore, makes it clear that though Scheduled Castes, Scheduled Tribes and Other Backward Classes are privileged Classes and Articles 15(4) and 16(4) confer upon them a privileged status but still in the matter of privileges, they are not comparable and are distinct. In Article 15(4) Scheduled Castes and Scheduled Tribes have been mentioned along with the express "Backward Classes of the citizen" which means that the backward class persons are other than Scheduled Castes and Scheduled Tribes. Scheduled Castes and Scheduled Tribes are specially protected classes while Other Backward Classes are not. There is a Constitutional presumption in favour of the Scheduled Castes and the Scheduled Tribes regarding their social, economic and educational backwardness while there is no such presumption in favour of the Other Backward Classes. These privileges have been given to the members of the Scheduled Castes and the Scheduled Tribes looking to the past social disparities and restricted opportunities. Despite the Constitutional inducement to awaken these utterly deprived and pathetically neglected social categories they have a long social distance to travel for becoming a part of the main stream of the National Life. For the redressal of the past injustice, a National Policy has been framed to provide representation to these Schelduled Castes and Scheduled Tribes people in economy, polity and administration commensurating with their ratio in the population. There is a firm Constitutional commitment for the economic betterment of the members of the Scheduled Castes and the Scheduled Tribes who are Constitutionally defined and carefully designated. The Other Backward Classes, on the other hand, have nowhere been defined in the Constitution and are left at the determination of the State Government (s). The Other Backward Classes are widely perceived to be numerous, populous and indefinitely expandable categories and are not comparable to those of the Scheduled Castes and Scheduled Tribes. Backward Classes other than the Scheduled Castes and the Scheduled Tribes can be called as the "Other Backward Classes" and it is not necessary for a caste to be designated as a Backward Class as it is situated equally to the Scheduled Castes and the Scheduled Tribes categories. It has been classified as a separate category under the Constitution and as such Other Backward Classes cannot be equated with the Scheduled Castes and the Scheduled Tribes. The difference between the "Backward Classes of the Citizens" and the Scheduled Castes and Scheduled Tribes has been accepted even by the Hon'ble Supreme Court in Indra Sawhney v. Union of India and Ors. AIR 1993 SC 447 in para 92-A of the judgment in the following words:
...There is another way of looking at this issue. Article 16(4) recognises only one class viz., "Backward Class of Citizens". It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression "Backward Class of Citizens" and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it ? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, O.B.Cs. will take away all the vacancies leaving Scheduled Castes and the Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say - we may reiterate- that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.
13. Number of seats for Other Backward Classes in different categories of State and subordinate Services were reserved in the 1994 Examination. The Examinations were conducted as per the Rulers, 1962. Since there is no provision in the Rules for giving the benefit relating to 5% less cut off marks to the O.B.C. candidates and it has been limited only to the Scheduled Castes and Scheduled Tribes candidates, the benefit of the proviso to Rule 13 cannot be extended to the petitioners and the other O.B.C. candidates. The proviso to Rule 13 does not suffer from the vice of discrimination or arbitrariness. Looking to the mandate of the Constitution treating Scheduled Castes and Scheduled Tribes as specially protected classes and giving the benefit of 5% less cut off marks to them in passing the Preliminary Examination and not to the Other Backward Classes candidates, cannot be said to be unreasonable. The policy is intended to give benefit to the historically discriminated and pathetically neglected members of Scheduled Castes and Scheduled Tribes. Such relaxation in favour of the Scheduled Castes and Scheduled Tribes candidates is neither unreasonable nor constitutes violation of Article 15(1) or 16 of the Constitution of India. This relaxation, also, does not offend Article 14 of the Constitution of India.
14. The next contention raised by the learned Counsel for the petitioners is regarding category-wise declaration of the result in the ratio of 15 times of each of the categories. This controversy stands concluded by the Division Bench judgment of this Court rendered in: Mahesh Kumar Khandelwal and 16 Ors. v. State of Rajasthan and Ors. 1995 (2) WLC (Raj.) 223. The controversy before the Division Bench in Mahesh Kumar Khandelwal's case was: whether category-wise declaration of result and preparation of separate list of Scheduled Castes and Scheduled Tribes candidates was necessary for the Commission ? The Division Bench of this Court in Khandelwal's case, held that "Scheduled Castes/Scheduled Tribes candidates cannot complain that a separate list should have been prepared with regard to these candidates, when the Rules do not mandate it either by express words or by necessary implication."
15. The contention of the learned Counsel for the petitioners is that for future examination the R.P.S.C. has made a provision for the category-wise publication of the result and the U.P.S.C., in the present year, has, also, published the result category-wise.
.16. Rule 13 of the Rules, as it stood on the relevant day , does not envisage the category-wise publication of the result. Rule 13 of the Rules has, now, been amended. The amended rule makes a provision for category-wise publication of the result but this amended rule is not applicable to the present Examination of 1994.
17. Even otherwise, category-wise publication of the result will not make any difference. Only 352 candidates belonging to Other Backward Classes category have qualified to appear in the Main Examination. There is a short-fall of 428 candidates who could not reach upto the cut-off marks. Even if the category-wise result is declared, the petitioners and the other persons who have failed to reach upto the cut-off marks, cannot be benefitted. The list even if separately prepared, will contain only 352 candidates who have qualified the Preliminary Examination by securing above the cut off marks. In this view of the matter, there will not be any change in the result even If it is declared category-wise. Thus, neither any prejudice has been caused to the petitioners in not category-wise publication of the result nor was it necessary for the R.P.S.C. to do so as has been held by the Division Bench of this Court in Mahesh Kumar Kandelwal's case.
18. The last contention raised by the learned Counsel for the petitioners is that the reservation policy cannot be implemented without category-wise declaration of the result of the Preliminary Examination. The object of category-wise declaration of the result is that fifteen times of the number of the candidates of each category should be allowed to appear in the Main Examination. Fifteen times of the number of the candidates of each categtory can be included in the list provided such number of candidates have crossed the cut off marks. If the number of the candidates who have qualified for the Main Examination by securing the marks above the cut off marks in the category is less than fifteen times then they cannot be included in the List of Successful Candidates to complete the 15 times of the reserved posts. In the present case, only 352 candidates belonging to Other Backward Classes obtained more marks than the cut off marks and, therefore, only those candidates can be included in the list and preparation of the separate list will be of no consequence as only 352 candidates of Other Backward Classes can be included in the list even if it is separately prepared. The Reservation Policy only requires that fifteen times of the persons of the category reserved for that particular category should be declared successful to compete in the Main Examination but if the requisite number of the candidates have not obtained the qualifying marks then their names cannot be included in that particular category. Only successful candidates, who have crossed the cut off marks, are to be included and not the other persons to complete the figure of fifteen times. The contention raised by the learned Counsel for the petitioners is, therefore, bereft of any substance.
19. In the result, I do not find any merit in the writ petition filed by the petitioners and the same deserves to be dismissed. Since the writ petition filed by the petitioners itself has been heard and decided on merit, learned Counsel for the appellants Rajasthan Public Service Commission and Anr. therefore, does not press the appeal which has been filed against the Order dated 1-8-96 passed by the learned Single Judge on the stay application in S.B. Civil Writ Petition No. 1579 of 1996 (Vijay Kumar Gehlot and Ors. v. Rajasthan Public Service Commission and Ors.).
20. In the result, I do not find any merit in this writ petition and the same is hereby dismissed. The appeal filed by the Rajasthan Public Service Commission and another is, also, dismissed as not pressed.
G.C. Verma, J.
21. I had privilege and benefit to go through the Judgment of brother Judge. On certain points in the circumstances of the case, with utmost respect to my brother colleague, I have got my own reservation so far it relates to deprive the benefits of one reserved category from the benefits which have been awarded to another reserved category and to my humble opinion, it shall amount to be against the well defined principles of equality before law which principles are very dear to the Courts. Therefore, I give the separate Judgment.
22. The petitioners, members of other backward classes (for short as "OBC"), a reserved category, brought on the list of reserved category for the purpose of reservation in the services first time in the year 1994, are claiming in the present writ petition, the same benefits which have been awarded to other reserved categories in the Rules vide notification dated 13th Sep. 1962 published in the Rajasthan Rajpatra, Extra ordinary, Part IV(C), dated 13.9.62, under Article 309 of the Constitution of India, whereby the Rules called as the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1962 (for short as "Rules of 1962") had come into force for recruitment in the service by way of competitive examination etc. etc. Rule 13 of the Rules of 1962 provides a Scheme of Examination i.e., the examination is to be conducted by the Commission in two stages i.e., preliminary examination and main examination. The marks obtained in the preliminary examination by the candidates who are declared qualified for admission to the main examinations, are not to be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies to be filled in the year in the various services. A proviso has been added to the Rule 13 to the fact that if adequate number of candidates belonging to the Scheduled Castes/Scheduled Tribes (for short as SC/ST) are not available amongst the candidates, to be declared qualified for admission to the Main Examination, the Commission may at their discretion keep the cut off marks upto 5 per cent less than the General Candidates.
23. The grievance of the petitioners is, that once the proviso to Rule 13 is adopted and the Commission takes a decision to keep the cut off marks upto 5 per cent, for admission to the Main Examination, in respect to the SC/ST, the "OBC" reserved category which has now been inducted in the year 1994 is to be treated alike and give the same benefit as has been bestowed on the SC/ST candidates.
24. Admittedly, when these rules alongwith the proviso were framed in the year 1962, the only reserved class available was SC/ST and, therefore, if there was no "OBC" class available at the relevant time of 1962, there was no question of including the word "OBC" in the proviso itself. The question to be answered by the Court is as to whether the OBC class, once has been declared as entitled to reservation under various Articles of the Constitution of India and after getting the report of the Commission its as appointed under the relevant provisions of the Constitution of India for declaring the reserved class, is also entitled to the similar treatment as being awarded to other reserved category/class. In the present case, it is not disputed that the candidates belonging to SC/ST have been awarded the benefit of cut off marks upto 5 per cent less than the General candidates. But as per the respondents, OBC class has been denied this benefit only because of the reason that in the Rules of 1962, the word "OBC" has not been included and, therefore, until and unless the "OBC" is also mentioned in the rules, no benefit can be derived by the petitioners under the Rules. There is no doubt that under the Rules of 1962, OBC class could not be mentioned as there was no existence of OBC at that time, and the OBC came into being for the first time only in the year 1994 for being treated as a reserved category. The discrimination would arise amongst the equally placed categories if they are treated unequals and thus there would be clear infringement of Article 14 of the Constitution of India. The Courts cannot lose sight of the fact that the main purpose of giving such a concession to, the then reserved class, was to uplift them to some level because of their social, economic and education backwardness. If these very tests are also available to the OBC and the backward classes have been declared as backward class because of their social, economic and educational backwardness status, it shall be legally not permissible to not to include the OBC class for the benefit of proviso of Rule 13 as to bring them parallel to the benefits being given to SC/ST. Article 14 of the Constitution of India provides, equalities before the law or the equal protection of law within the territory of India.
25. To trace the history of equality before the law, Article 15, Sub-clause (4) enables the State for making special provisions for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes and various type of reservations made by the State have been held to be legal if the action of State conforms the four corners of the Constitution of India. In regard to equality of opportunity in the matters of public employment Article 16 Sub-clause (4) further empowers the State Government for making any provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
26. Article 16, Sub-clause (4) clearly talks of the backward classes of citizens who are to be given some protection of reservation, if so considered by the State. The backward class of citizens is a class in themselves, which have been further defined into the SC/ST or given any other name as per the recommendation of various reports of the committees and commissions. In the Constitution itself, the Classes which were already know and defined to be backwards, were included as SC/ST, but certain classes were still to be earmarked by the Commission or the State for the purpose of reservation.
27. It is not disputed that in the present case, reservations have been made for recruitment in the rules of 1962 to the extent of 16 per cent for SC, 12 per cent for ST and 21 per cent for the OBC. The OBC class has been defined as backward class after proper investigation and declaration as such. The State of Rajasthan has reserved 21 per cent for the purpose of recruitment to various classes of employment from amongst the OBC's
28. It is necessary to note whether there is any difference between the SC/ST or OBC or the State can by any of their action; act differently while admitting the said class falling under the reserved categories based on the same criteria of social/economic and educational backwardness, but still depriving one or the other reserved category of some concession, but-awarding same to other reserved category. Had there been any overt action or order in writing or some notification, whereby the OBC reserved category which had been defined for the first time as a reserved category, the same was liable to be analysed in the judicial review. But to say that in the Rules of 1962, the OBC reserved category is not mentioned which category has been for the first time brought in life in the year 1994 and, therefore, not entitled to benefits being provided to other reserve categories, is something which is unimaginable. There is no difference of the reserved categories amongst themselves, once they are included as such for the purpose of reservation for the public employment, may be SC/ST or other OBC reserved category. Article 15(4) authorises the State to make a special provision for advancement of any socially or educationally backward class of citizens as distinguished from SC and ST. Sub-clauses 24 and 25 of Article 366 defines SC and ST respectively, but there is no clause of defining socially and educationally backward class of citizens, and so in determining the question as to whether a particular provision has been validly made under clause 15(4) or not, the first question which falls to be determined is whether the State has validly determined which should be included in the backward class. In the present case, the State has already determined the backward class as per the requirement of Article 15(4). After such determination, the backward class is deemed to be similar for the purpose of other benefits to that of SC and ST which have been defined and were known to be backward class when the Constitution was made. It has been held by Hon'ble Supreme Court in M.R. Balaji and Ors. v. The State of Mysore and Ors. AIR 1963 S.C. 64) as follows:
It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Article 15(4) itself, treated as being similar to the Scheduled Castes, and Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt no doubt that special provision had to be made for their advancement. It was realised that in the Indian society there were other classes of citizens who were equally, or may be somewhat less backward than the Scheduled Castes and Tribes and it was though that some special provision ought to be made even for them. Article 341 provides for the issue of public notification specifying the castes, races; or tribes which shall, for the purposes of this Constitution, be deemed to be Scheduled Castes either in the State or the Union Territory as the case may be. Similarly Art, 342 makes a provision for the issue of public notification in respect of Scheduled Tribes. Under Article 338(3), it is provided that references to the SC and ST shall be construed as including reference to such other backward classes as the Resident may, on receipt of the report of a commission appointed under Article 340(1), by order, specify and also to the Anglo Indian Community. It would thus be seen that this provision contemplates that some Backward Classes may by the Presidential order be included in SC and ST. That helps to bring out the point that the backward Classes for whose improvement special provision is contemplated by Article 15(4) are in the matter of their backwardness comparable to SC and ST.
29. Article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. By Clause (3) of Article 15 the State is, notwithstanding the provision contained in Clause (1), permitted to make special provision for women and children. By Clause (4) a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of Clause (1). But Clause (4) is an exception to Clause (1). Being an exception, it cannot be extended so as in, effect to destroy the guarantee of Clause (1). The Parliament has by enacting Clause (4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement. In order that effect may be given to Clause (4), it must appear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other than the SC and ST, and that the provisions made is for their advancement. Reservation may be adopted to advance the interests of weaker sections of society.
30. In the present case, once the State had come to this conclusion that backward class is now defined as OBC and brought under the reserved category similar to that of SC and ST, it cannot be denied the other benefit which has been bestowed on other reserved category. As soon as any reserved category is defined, and reservation clause is adopted for their advancement, all the reserved categories are treated to be equal and alike and that is the spirit of Article 14 of the Constitution of India. Not treating them alike would be violating the fundamental rights of that reserved category and they cannot be made unequals amongst the equals.
31. It needs no emphasize to say that principal aim of Articles 14 and 16 is equality and equality of opportunity and that Clause 4 of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision, though not an exception to Clause (1). Both the provisions had to be harmonised keeping in mind the fact that both are but the reinstatements of the principle of equality enshrined in Article 14. To say that after defining a particular clause under the exception clause either Clause (4) of Article 15 or (4) of Article 16, there should be discrimination within such clauses, is nothing but an infringement of Article 14 of the Constitution. The action of the State , in exclusion of persons belonging to socially and educationally backward class on the ground of higher income against the reserved seats in Medical College was set aside by the Kerala High Court in the case reported in 1975 A.I.R. 13 3 (Kumari T. Shameen and Ors. v. Principal, Medical College, Trivandrurm) holding that this cannot be the factor for determining the social and educational backwardness under Article 15 of Clause 4 and the restriction imposed was declared unconstitutional and invalid. In (Haryana State Adhyapak Sangh v. State of Haryana) the Apex Court had held that emoluments of teachers of aided private schools and teachers of the government schools are to be given parity as per recommendation of the Kothari Commission. The action of the State Government in revising the payscales of the teachers in the government school and in not giving the same benefit to the teachers of private aided schools was held to be arbitrary and violative of Article 14 of the Constitution on the ground that the teachers as a class cannot be discriminated.
32. In the case (M. Venkatachalam and Ors. v. State of Andhra Pradesh), the rule laying down for giving half fee concession to the economically backward students to the extent of Rs. 3600/- income of their parents was modified to deprive new class of employee-students. The employee-students in the evening classes were deprived of half fee concession. It was held that students are class in themselves and there is no nexus of the object that was sought to be achieved by giving concessions to the economically backward students and the government order was set aside being violative of Article 14 of the Constitution of India.
33. The facts in the present case have already been stated and need not be reproduced. The petitioners who had appeared in the preliminary examination, result of which was published on 10.4.96. The advertisement for inviting the applications was made on 21.11.1994. The examination itself was held on 10.12.1994. The result of the preliminary examination was not declared category- wise, even though the reservations were provided in regard to Scheduled Castes, Scheduled Tribes and OBC. The benefit of 5% less cut marks, as provided under proviso to Rule 13 of the Rules of 1962 was extended to the candidates belonging to the Scheduled Castes and Scheduled Tribes. The counsel for the petitioner has raised the following three contentions to be determined i.e. (i) providing the benefit of 5% less cut off marks, (ii) the result of the preliminary examination be declared category-wise and should include 15 times of the post reserved for other backward classes as well, (ill) result be declared category-wise.
34. The counsel appearing for the respondents has opposed to extend the benefit to the OBC on the ground that benefit of Rule 13 including the proviso is applicable to Scheduled Castes and Scheduled Tribes only as these categories are mentioned in the Rules of 1962, where OBC. Class has not been included and further the OBC is not the same class as that of scheduled castes or Scheduled Tribes. It Was also opposed that category-wise declaration of the result is not envisaged by the Rules.
35. As has been discussed above, that once a discretion by the Commission is exercised to keep the cut off marks upto 5%, less to the reserved categories mentioned in the rules, this benefit is to be made available to all other reserved categories as well i.e., backward class category alongwith Scheduled Castes and Scheduled Tribes. The reservation of O.B.C. in the service was made in the year 1994 and therefore there was no occasion whatsoever to include the OBC, class in the Rules of 1962 from the very initial stage. A clear arbitrariness is writ large when discrimination is made for awarding the benefit of the proviso of Rule 13 amongst reserved class itself. The aim of including such a benefit in the Rules of 1962 at that time was to provide such benefits to all the reserved class existing at that time and if and when any reserved class is defined later on, that class cannot be discriminated against. Once, the OBC has been defined as backward class of the citizens and the State has accepted, such status of such classes in the society and has also granted the reservation in the services by issuing appropriate notification, it shall be not proper for the State to deprive such new included class under the reserved category, to be deprived of the benefits being awarded to other reserved categories. As such, the writ petition is allowed to the extent that OBC. Class as well, is entitled to all such benefits as provided under the Rule 13 and proviso of Rule 13 of the Rules of 1962, in similar and alike manner as that of scheduled castes and scheduled tribes, if the Commission exercises the discretion to bestow such benefits in favour of the Scheduled Castes and Scheduled Tribes. In the case in hand, the Commission has already exercised such discretion in favour of reserved classes of Scheduled Castes and Scheduled Tribes only and has denied such benefits to the OBC. Class mainly on the ground that in the year 1962, OBC was not included under the Rules of 1962, which even otherwise could not have been included as OBC for the reason that it as such was defined only in the year 1994 and the State had accepted the reservation provision for the OBC as socially, economically and educationally backward class.
36. In regard to the contention that Commission was bound to publish a separate list in regard to all the categories i.e. general category and reserved categories. I fully agree to the views of my brother Judge, as the matter stands covered by the Division Bench Judgment of this Court reported in 1995(2) WLC 223, but as has been pointed out and also admitted by the respondents that presently the commission has framed rules to publish the category wise list prospectively and such procedure is also adopted by the Union Public Service Commission, it would be quite appropriate and no harm would be caused that category wise list be prepared in the present case as well. Even though, legally, it cannot be forced upon the Commission to prepare category-wise list because of the Division Bench Judgment in Mahesh Kumar's case. If the Commission has already taken a decision to publish the category-wise result of the preliminary examination, for proper and smooth working of the Commission, and if such procedure has been adopted now, no harm would be caused if the category-wise list is also prepared in the present case by showing grace and to remove doubts in the minds of the candidates. It would have been different matter, if the Commission had not adopted this procedure now prospectively.
37. In the result, the writ petition is allowed and the Commission is directed to bestow the same benefit as provided under the Rule 13 and its proviso of the Rules of 1962 to the reserved category of OBC as well in the same manner as has been adopted in favour of other reserved categories i.e. SC/ST. No order as to costs.