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9. Mr. Mahaveer Bishnoi, learned counsel appearing for the appellants contended that in the recruitment process where written examinations were to be conducted, the State Government has withdrawn the advertisement issued earlier so as to extend the benefit of reservation to EWS in compliance of the notification dated 19.2.19 and thus, the action of the State in denying similar treatment to the candidates aspiring for appointment to the post of Nurse Gr.II solely on the ground that no written examination is envisaged under the Rules of 1965 for recruitment to the said post, is absolutely illegal, arbitrary and discriminatory. Learned counsel submitted that before issuing the Circular dated 23.6.19 providing reservation for EWS, the respondents had issued only a communication dated 17.6.19 whereby the list of the candidates two times the advertised vacancies was published for verification of documents. Learned counsel submitted that neither the documents were verified prior to 23.6.19 nor the final merit list was prepared. Learned counsel submitted that the respondents extended the benefit of enhanced percentage of reservation for (20 of 31) [SAW-176/2020] MBC even in respect of the recruitment where the examinations were conducted but the similar benefit has not been extended in respect of EWS, which is also illegal, arbitrary and falls foul of Article 14 & 16 of the Constitution of India. Learned counsel submitted that keeping in view the notifications dated 13.2.19 and 19.2.19 when the pending recruitments under the various Service Rules were postponed, then there was no occasion for the respondents to continue with the recruitment process of Nurse Gr.II so as to deny the benefits of reservation provided to EWS vide notification dated 19.2.19. Learned counsel submitted that only on account of the list of the eligible candidates being issued for document verification, no right is created in favour of the candidates whose names were included in the said list and thus, the candidates appearing for selection to the post of Nurse Gr.II pursuant to the advertisement dated 30.5.18 cannot be differently treated.

10. Dr. Nupur Bhati, learned counsel appearing for the appellants contended that the respondents having taken a stand to extend the benefit of reservation in the ongoing selection process and accordingly, the benefits of reservation having extended to the candidates belonging to MBC category for recruitment to the post of Nurse Gr.II pursuant to the advertisement dated 30.5.18, there was no occasion for the respondents not to extend the same benefit to the candidate belonging to the category of EWS. Learned counsel submitted that in respect of the other recruitments such as, recruitment to the post of Pharmacist under the Rules of 1965, the State Government has issued an amended (21 of 31) [SAW-176/2020] advertisement dated 5.12.19 inviting fresh applications from the eligible candidates so as to extend the benefit of reservation provided for the MBC and EWS vide notification dated 13.2.19/19.2.19. Learned counsel reiterated that the process of selection initiated vide advertisement dated 30.5.18 was not completed prior to issuance of Circular dated 23.6.19 and only a list of eligible candidates was issued for verification of the documents. It is submitted that as a matter of fact, the select list containing the names of the successful candidates for appointment to the post of Nurse Gr.II was issued by the competent authority on 24.1.20 and not prior to it. Learned counsel submitted that when the selection process was not completed prior to issuance of Circular dated 23.6.19 and thus, there is no reason why the appellants and their likes aspiring for recruitment to the post of Nurse Gr.II by availing the benefit of reservation provided for EWS should be treated differently vis-a-vis the candidates appearing for recruitment to the various posts wherein the written examinations were not conducted. Learned counsel submitted that as a matter of fact, the action of the respondents in denying the benefit of reservation provided for EWS in ongoing recruitment for the post of Nurse Gr.II amount to conscious discrimination, which is violative of Article 14 of the Constitution of India. Relying upon a Bench decision of this Court in Kamla Godara vs. State of Rajasthan & Anr.: AIR 2000 Raj. 130, learned counsel submitted that once the decision was taken by the State Government to enhance the reservation provided for MBC category as also to provide reservation to EWS category, the same has to be given effect forthwith and therefore, the applicability thereof to ongoing (22 of 31) [SAW-176/2020] recruitments is automatic and even in the cases where the examinations are conducted and the results are declared, no indefeasible right can be said to have been created in favour of the successful candidates and thus, viewed from any angle, the appellants and their likes cannot be denied the benefits of EWS reservation solely on the basis of the stage of the recruitment process at the relevant time.

11. On the other hand, Mr. M.S.Singhvi, learned Advocate General submitted that in the instant case, the appellants are seeking directions for providing benefit of the reservation to the candidates belonging to EWS category in the selection for the post of Nurse Gr.II pursuant to advertisement dated 30.5.18, which cannot be claimed as a matter of right. Learned AG submitted that no mandamus can be issued to the State Government by this Court to grant reservation from a date anterior to the date fixed by the State Government. In support of the contention, learned AG relied upon the decisions of Supreme Court in K.V.Rajalakshmiah Setty & Anr. vs. State of Mysore & Anr.: AIR 1967 SC 993, Ajit Singh & Ors. vs. State of Punjab & Ors.: (1997) 7 SCC 209 and TMA Pai Foundation vs. State of Karnataka: (2002) 8 SCC 481. Learned AG submitted that the recruitment where the written examinations are to be conducted and the recruitment wherein no written examinations are conducted and the merit is prepared solely on the basis of marks obtained in qualifying examination and the bonus marks admissible, cannot be treated at par. Learned AG submitted that where the examinations were conducted, the benefit of the reservation as provided for EWS has (23 of 31) [SAW-176/2020] not been given effect to and thus, for the parity of reasons where the further process was initiated and the list of the eligible candidates two times the advertised vacancies prepared on the basis of the merit had already been issued for verification of the documents, a right was created in favour of the candidates whose names find mention in the list published and thus, the decision of the State Government in not implementing EWS reservation to the recruitment where the merit list of the candidates was published prior to issuance of the Circular dated 23.6.19, was absolutely justified. Learned AG submitted that as a matter of fact, in two sets of the writ petitions, different stand has been taken by the appellants therein; in one set of the petition, it is claimed that the benefit of EWS reservation shall be extended to the ongoing recruitment to the post of Nurse Gr.II whereas, in another set of petition, it is prayed that the advertisement issued for the recruitment should be cancelled and the fresh advertisement should be issued for recruitment in question extending the benefit of reservation of EWS as well. Learned AG submitted that the decision of the State Government on the facts and circumstances of the case, in not extending the benefit of EWS reservation in respect of the recruitment in question cannot be said to be illegal, arbitrary, irrational or discriminatory so as to warrant interference by this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. Learned AG submitted that the selection process for recruitment to the post of Nurse Gr.II has already been completed inasmuch as, pursuant to the select list issued on 24.1.20, the selected candidates have already joined and therefore, no order adversely affecting their rights can be (24 of 31) [SAW-176/2020] passed by this Court in their absence. In support of the contention, learned AG relied upon the decisions of the Supreme Court in Prabodh Verma vs. State of U.P. :(1984) 4 SCC 251, Tridip Kumar Dingal vs. State of West Bengal: (2009) 1 SCC 768 and State of Rajasthan vs. Ucchab Lal: (2014) 1 SCC 144.

18. A perusal of the Circular dated 23.6.19 issued by the State Government for implementing the reservation provided vide notifications dated 13.2.19 and 19.2.19, reveals that so far as the notification dated 13.2.19 providing for enhanced reservation for MBC category i.e. from 1% to 5% of the vacancies advertised has been implemented for all the undergoing recruitments irrespective of their stage whereas, the reservation provided for EWS category was made applicable only to those recruitments wherein the recruitment process was at the nascent stage and it was possible to issue fresh advertisements so as to extend an opportunity to eligible candidates to apply for recruitment against the posts to be reserved for EWS category pursuant to the notification dated 19.2.19. While giving effect to the enhanced percentage of reservation provided for MBC category vide notification dated 13.2.19 in the recruitments where the examination had already been conducted and the results were to be declared, lest the rights of the existing candidates competing for recruitment to the posts advertised may not be adversely affected, it was notified that to the extent of enhanced percentage of reservation provided for MBC category, new posts shall be created. Apparently, different criteria for implementation of the enhanced reservation provided for MBC category and the fresh reservation provided to EWS category was adopted by the State Government keeping in view that reservation for MBC category to the extent of 1% was already there and the candidates eligible to avail the benefits had already (27 of 31) [SAW-176/2020] applied in the said category and therefore, on account of implementation of enhanced percentage of reservation for MBC category, no prejudice was likely to be caused to the aspirant for recruitment to the posts advertised whereas, the reservation for EWS was introduced for the first time and therefore, the candidates eligible to avail the benefit of the reservation, had no occasion to apply for the posts in EWS category. In this view of the matter, the action of the State in adopting different criteria for implementation of the enhanced percentage of the reservation provided to the MBC category and fresh reservation provided to EWS category in no manner can be said to be irrational, unreasonable, illegal and arbitrary so as to violative of Article 14 & 16 of the Constitution of India.