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6. Thus, sub-section (4) of Section 4 became a hurdle for the reserved category candidates. This is well settled that if a reserved category candidate received more or equal marks qua UR category candidate, he will secure birth in UR category and he cannot be treated to be a reserve category candidate. The respondents in preliminary examination and main examination are not implementing this settled principle in view of the impugned amendment in Examination Rules dated 17.2.2020.
7. Shri Vinayak Shah, learned counsel for these petitioners placed further reliance on the order passed by another Division Bench (Indore ) in W.A. 1450 of 2018 (Madhya Pradesh Public Service Commission Vs. Vishal Jain and others) decided on 1.2.2019 and urged that this order is solely based on the previous judgment of Division Bench in Hemraj (supra) and the judgment of Supreme Court reported in 2017 (12) SCC 680 (Deepa E.V. vs. Union of India and others). Judgment of Deepa E.V. (supra) cannot be applied submits Shri Vinayak Prasad Shah, Advocate by contending that OBC candidate therein had applied in OBC category by taking advantage of relaxation of age being a reserved category candidate whereas in the instant cases, the petitioners have not taken any such advantage of reserve category except relating to relaxation of fees which is permissible under the Rules. It is further argued that when W.A. No. 1450/2018 was decided on 1.2.2019, the Admission Rules of 2015 came into being. The attention of Division Bench was not drawn on para -7 of the judgment of Hemraj (supra) and Admissions Rules.
Therefore, the order of Division Bench in the case of Vishal Jain (supra) is per incuriam.
8. It is common ground taken by all the petitioners that the selection process started with issuance of advertisement on 14.11.2019. As per the Rules prevailing at that point of time, the respondents were obliged to treat the reserve category candidates who have secured marks equal or more to an UR candidate as UR candidate at all stages including preliminary and main examination. This procedure laid down in the main Rules could not have been changed to the detriment of the petitioners after game was started. In nutshell, it is argued that Rules of game cannot be permitted to be changed after commencement of the game.
21. Shri Vinayak Shah in his rejoinder submissions urged that unless the principles laid down in Indra Sawhney (supra) and Saurav Yadav (supra) are applied in toto at the stage of preliminary examination and main examination, the constitutional mandate ingrained in Article 15 and 16 cannot be translated into reality. Unless a reserve category candidate who has secured more or equal marks qua UR category candidate is given birth in all stages including preliminary and main examination in UR Category, he will not get actual benefits envisaged in aforesaid Articles as well as judgment of Supreme Court in Indra Sawhney (supra).
4. Mode of preparation of (d) (I) Results of 4. In Rule 4 sub rule (3) for clause (a) Preliminary/Main the following clause shall be select list -
Examination, the candidates substituted, namely :-
(1) (a) (i) On the basis of
shall be declared in the
marks obtained in Preliminary category mentioned as their (3) (a) (i) After the interview,
category in their online the merit list of the candidates shall
Examination, candidates
application form. be prepared by the Commission on
numbering 15 times the vacancies the basis of the total marks obtained
as advertised categorywise will be by them in the main examination and
(II) Candidates of reserved interview. The order of merit of the
declared successful forMain category ( Scheduled caste/ candidates securing equal marks shall
Scheduled Tribe ? Other be determined as per the criteria
examination subject to the
Banckwards Classes/ prescribed by the order of the
condition that candidates have Economically Weaker Section) Commission.
who get selected like general
scored minimum passing marks as
category cadidates without any (ii) First of all, a list of
may be specified by the relaxation shall not be adjusted unreserved category (which includes
against the posts reserved for Scheduled Castes, Scheduled Tribes,
Commission. In addition to this,
those reserved categories. Other Backward Classes and
all the other candidates who get They shall be adjusted against Economically Weaker Sections) shall
vacancies of unreserved be prepared. After this, those
marks equal to "Cut Off Marks"
category. candidates belonging to the reserved
will also be declared successful category (Scheduled Castes,
for the main examination. Scheduled Tribes, Other Backward
(III) But above adjusment Classes and Economically Weaker
will only be at the time of Sections) included in the unreserved
final sleection, not at the category (which also includes
(ii) Firstly, a list of
time of preliminary/ main Scheduled Castes, Scheduled Tribes,
Candidates of unreserved category examination. Other Backward Classes and
shall be prepared. This list will Economically Weaker Sections) who
have taken the benefit of relaxations
include the candidates selected on from time to time, shall be included
the basis of the common merit in the respective category by
separating them from the list of
from Scheduled Castes, unreserved category.
Scheduled Tribes and Other
(iii) Secondly, separate lists of
Backward Classes, who have not
candidates belonging to Scheduled
taken any advantage/relaxation Castes, Scheduled Tribes and Other
Backward Classes and Economically
given to the concerned category.
Weaker Sections shall be prepared.
(iii) Secondly, separate lists of
Scheduled Castes, Scheduled
Tribes and Other Backward
Classes will be prepared.