24 September 1996
Supreme Court


Case number: C.A. No.-013118-013118 / 1996
Diary number: 78331 / 1996






DATE OF JUDGMENT:       24/09/1996




JUDGMENT:                          O R D E R      Mr. B.D.  Sharma, learned  counsel for  Public  Service commission, takes notice.      We have heard learned counsel for the parties.      Leave granted.      This appeal  by special  leave arises from the judgment and order  of the  High Court  of Rajasthan,  made on August 30,1996 in Civil Writ Petition No.1579/96. The Government of Rajasthan  issued  a  notification  on  September  28,  1993 declaring reservation  of the  extent of 21% of the posts in various services of state of Rajasthan reserved for the OBCs which was given statutory force by Rule 8-A of the Rajasthan State   and  Subordinate  Services  (Direct  Recruitment  by combined Competitive  Examinations) Rules,  1962 (for short, ’the Rules’)  w.e.f. September  28, 1993. Notification dated November  21,  1994  was  issued  calling  applications  for recruitment to  275 posts  in administrative and subordinate services: of  them, 137  were for general candidates; 52 for OBCs.; 50 for Schedules Castes; and 36 for Schedules Tribes. On April  9, 1996,  preliminary examinations  were conducted and results  of the  candidates for  final examination  were declared. Candidates belonging to OBCs came to challenge the vires of the proviso to Rule 13.      Rule 13  of the Rules prescribes the mode of conducting preliminary as well as main examination. It reads as under:      "13.   Scheme    of    Examination,      personality  and  viva-voce  Test:-      The Competitive  Examination  shall      be conduct by the Commission in two      stages      i.e.,       preliminary      Examination and  Main   Examination      as  per  the  scheme  specified  in      Schedule-III. The marks obtained in      the preliminary  Examination by the      candidates,   who    are   declared      qualified for admission to the Main      Examination will not 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    and    posts;      provided   they    are    otherwise      eligible, but in the said range all      those candidates,  who  secure  the      same percentage  of marks as may be      fixed by  the  Commission  for  any      lowest range  will be  admitted  to      the Main Examination.’      Provided further  that if  adequate      number of  candidates belonging  to      the   Scheduled    Castes/Scheduled      Tribes are  not available  amongest      the  candidates   to  be   declared      qualified for admission to the Main      Examination, the  Commission may at      their discretion  keep the  cut off      marks up  to 5 (five) per cent less      than the General candidates.      Candidates who  obtain such minimum      qualifying  marks   in   the   Main      Examination as  may be fixed by the      Commission  in   their   discretion      shall be  summoned by  them for  an      interview.  The   Commission  shall      award  marks   to  each   candidate      interviewed by  them, having regard      to  their  character,  personality,      address, physique  and knowledge of      Rajasthani  Culture.   However  for      selection to  the Rajasthan  Police      Service   Candidates   having   ’C’      certificate of N.C.C. will be given      preference. The  marks  so  awarded      shall  be   added  to   the   marks      obtained in the Main Examination by      each such candidate."      Rule 7 prescribes the syllabus for examinations and the subjects in  which the  candidates are required to write the examination as  set out  in Schedule III which deals in that behalf.      A reading  of Rule  7  read  with  Schedule  III  would indicate that the Scheme of Examination consists of:      (i)  Preliminary Examination;      (ii) Main Examination.      The Preliminary  Examination will consist of two papers i.e., one  Compulsory Paper  and one  Optional Paper,  which will be  objective type  and would  carry a  maximum of  400 marks in the subjects mentioned in Sections ’A’ and ’B’. The Examination is  meant to serve as a screening test only. The marks,  obtained  in  the  Preliminary  Examination  by  the candidates, who  are declared qualified for admission to the Main Examination will not 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 or approximate  number of vacancies to be filled in the year in various  services and  posts, provided they are otherwise eligible, but  in the  said range  all those candidates, who secure the  same percentage  of marks as May be fixed by the Commission for  any lowest  range, will  be admitted  to the main Examination. The proviso left that embargo and empowers the commission  to keep  in its discretion the cut off marks up to  5  percent  less  than  the  general  candidates,  if



adequate number  of candidates  belonging to  the  Scheduled Castes/Scheduled  Tribes   are  nor  available  amongst  the candidates to  be declared  qualified for  admission to  the Main Examination      When the  matter had  gone before  the  Division  Bench consisting of Hon’ble B.R. Arora and J.C. Verma, JJ., the learned Judges differed on the interpretation of the  proviso to  Rule 13.  The learned  Judge Mr. Justice B.R. Arora  had held  that the  OBCs are not entitled to the benefit of  the proviso  to Rule  to for  reducing 5% of the qualifying marks  secured in the preliminary Examinations so as to  enable the OBCs to be 15 times the required number of posts reserved  for OBCs. The learned Judge Mr. Justice J.C. Verma held that having included OBCs, SC and STs as backward classes in Article 16(4), the omission of them in proviso to Rule 13 would violate Article 16(4), the Constitution. When  the matter  was referred  to  the  third Judge limited  to the  point of  difference of  opinion, the learned Judge  Mr. Justice  V.J.  Kokje,  agreed  with  Shri Justice Arora  and held  that proviso  does not apply to the OBCs. Therefore  OBCs. are  not  eligible to claim reduction of 5%  of the  marks secured  by  them  in  the  Preliminary Examination  for   enabling  them  to  appear  in  the  Main examinations. Thus, this appeal by special leave.      Shri  Sushil   Kumar  Jain,  learned  counsel  for  the appellant raises  three-fold contention.  According  to  the learned counsel,  the main part of Rule 13 does not speak of any minimum marks so as to enable the candidate to appear in the Main Examination. The rule requires consideration of all those candidates who have applied for the post, if they have fulfilled basic qualifications prescribed for the posts. The qualified  candidates  are  eligible  to  write  Preliminary Examination conducted  by Public  Service  Commission  While calling the  qualified candidates  to the  main examination, the  PSC   should  announce  results  in  such  a  way  that candidates numbering 15 times the total posts  earmarked for each category,  are called  to write  the main  examination. Under Rule  13 on working Out the number, the Public Service Commission has to put the minimum of the marks in such a way that there  would be  available opportunity  to the 15 times the candidates belonging tb various categories to appear for the main  examination. Therefore,  the prescription  of  the minimum of  the marks  and  elimination  of  the  candidates irrespective of  the fact  whether or  not they  reached  15 times the posts is an arbitrary procedure adopted by the Public Service Commission.      Secondly, it  is contended  that Article  16(4) of  the Constitution does  not specify whether they should belong to Scheduled  Castes,   Scheduled  Tribes  or  OBCs.  All  ar-e compendiously called  Backward Classes.  OBCs have  now been declared eligible  for selection  under the  reserved quota, having been  fused for  the purpose  of Article 16(4); their elimination under proviso to Rule 13 is arbitrary. violating their fundamental right to equality enshrined in Articles 14 and 16(1)  and 16(4).  He further  contends  that  once  the reservation  has  been  prescribed  to  various  categories, namely, Scheduled  Castes, Scheduled  Tribes  &  OBCs  under Article 16(4)  the Public  Service Commission is required to prepare a  separate list  of the  candidates while declaring the result  of  the  Preliminary  Examination  and  to  call candidates numbering  15 times the total posts earmarked for them. The  candidates who secure the minimum of the marks so as to eligible to appear in the main exams should be called. The latest amendment to Rule 13 and IIIrd Schedule to Rule 7 and also  to Rule  10(1) of  the Rules by notification dated



April 2,  1996 which  indicates that  the result  should  be declared categorywise, was relied on. So categorywise declaration is  implicit in  it. The  High Court, therefore, was not right in its consideration of the effect of Rule 13.      Shri Badri  Das Sharma,  learned counsel for the Public Service Commission,  contended that  main part of Rule 13 is that the  Public Service  Commission would prescribe minimum cut off  marks out  of the  aggregate marks  secured by  the general candidates  in the preliminary examination conducted as per  Rule 7  read with  IIIrd Schedule.  From  among  the candidates who  obtain such  minimum qualifying marks as may be  fixed   by  the  Commission  in  their  discretion,  and candidates numbering 15 times the posts shall be summoned by them for main examinations. If more candidates should secure same cut off marks, all will be called for main examination. If the candidates are more than the 15 times the posts, only that number,  and all  candidates who secure the minimum cut off marks,  irrespective of  whether it exceeded 15 times or not are  to be  permitted to  write main  examination.  This interpretation is  consistent with the main part of Rule 13. The operation  of the  proviso should  be extended  only  in cases where  the SCs and STs do not come upto the minimum of 15 times  even after getting 5% of the minimum cut off marks in the  lowest range.  Those candidates  who secured further lowest of  5% marks  less than  the lowest  range of general candidates  will   be  called   to  appear   for  the   main examination. The  Rule thus worked out by the Public Service Commission is  consistent with the spirit and letter of Rule 13. He also contends that though OBCs were declared eligible for the  selection to  the said  services and had 21% of the vacancies reserved  for them,  the OBCs and Scheduled Castes and Scheduled  Tribes are  distinct classes.  The  Scheduled Castes and  Scheduled Tribes have been dealt with separately by the  Constitution. All OBCs. are not identified under the Constitution to  get the  benefit  under  Article  16(4)  or 15(4);  those,   among  them,  identified  by  a  Commission Appointed  by   the  President  under  Article  340  of  the Constitution and accepted by the State Government or Central Government and  notified in  the Gazette  as OBCs  alone are treated as  a Class  but they  cannot be  confused with  the Scheduled Castes  or Scheduled  Tribes  who  would  stand  a separate class.  The learned minority Judge was not right in holding that Article 14 was violated.      As regards  the third  contention of  Mr. Sushil  Kumar Jain, Shri  Sharma contends that there is no need to prepare a separate  result  of  various  categories  for  which  the recruitment was called for That became necessary only as per the amended  Rule under the notification dated April 2, 1996 which is  only prospective.  Therefore, it does not apply to the recruitment for the year 1991.      In  view  of  the  respective  contentions,  the  first question that  arises for  consideration is whether Rule 13, as interpretated by Shri Sushil Kumar Jain, is valid in law? To be  fair to  the learned  Judges of  the High  Court, the first question  was not  addressed before the learned Judges in the  manner in  which it was argued before us. The thrust of the  arguments before  them was  on proviso to Rule 13. A reading  of   Rule  13   would  indicate   that  competitive examination  shall   be  conducted  by  the  Public  Service Commission in  two stages,  namely, Preliminary  Examination and Main  Examination. As per the Scheme specified in Rule 7 and Schedule  III, preliminary examinations are conducted on the subjects  as per  the syllabus  and aggregate  marks are taken into  consideration to  call the  candidates for  main examination. Marks  obtained in  the preliminary examination



by a  candidate would not be counted for the purpose of Main Examination to determine 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 of  recruitment in  the  various  services  and posts/vacancies   notified   or   expected,   However,   the candidates Would  be  otherwise  eligible  in  a  particular range. All  those candidates, who secure the same percentage of marks  as may  be fixed  as  the  lowest  range  will  be admitted for  the main  examination, It  would thus  be seen that Rule  13 read  with Rule  7 and  Schedule III  does not prescribe any  minimum of  the lowest  range  of  marks  for calling  the   candidates  for   appearing   in   the   main examination. What  requires to  be done  is that  the Public Service Commission  has to  consider the number of vacancies notified or  likely to  be filled in the year of recruitment for which  notification was  published. Then  candidates who had appeared  for the  preliminary Examination and qualified for main  examination are  to be  screened by  the test. The object is  to eliminate  unduly long  list of  candidates so that opportunity to sit for main examination should be given to   candidates    numbering   15    times   the    notified posts/vacancies in  various services in various services; in other words  for every  one post/vacancy  there should be 15 candidates. There  would be  wider scope  to get best of the talent  by  way  of  competition  in  the  examination.  The ultimate object is to get at least three candidates or as is prescribed, who  may be called for vivo-voce. Therefore, the lowest range  of aggregate  marks as  cut  off  for  general candidates should  be so  worked out  as to get the required number of  candidates including  OBCs, Scheduled  Castes and Scheduled Tribes.  The lowest  range  would,  therefore,  be worked out  in such a way that candidates numbering 15 times the notified  posts/vacancies would  be  secured  so  as  to afford an  opportunity to  the candidates  to compete in the main examination.      Under the  proviso, if  that range has not been reached by the candidates belonging to the SCs or the STs, there may be 5% further cut off from the last range worked out for the general candidates  so as  to declare  them as qualified for appearing in  the main  examination. In  other words,  where candidates belonging  to the  SCs and STs numbering 15 times the total vacancies reserved for them are not available then Service Commission  has to go down further and cut off 5% of the marks  from the  lowest  of  the  range  prescribed  for general candidates  and then  declare as eligible the SC and ST candidates  who secured  5% less  than the  lowest  range fixed by  P.S.C. for general candidates so as to enable them to appear  for the main examination. The candidates who thus obtain qualifying marks are eligible to appear and write the main examination. The respective proportion of 1:3 or as may be prescribed  and candidates  who  qualified  in  the  main examination will  be called  by  the  Commission,  in  their discretion, for  interview. The Commission shall award marks to each  candidate interviewed  by them,  having  regard  to their  character,   personality,   address,   physique   and knowledge of Rajasthani culture as is in vogue as per rules. However, for  selection to  the  Rajasthan  Police  Service, candidates having  ’C’ Certificate  of N.C.C.  will be given preference. The marks so awarded shall be added to the marks obtained in the main examination by each such candidate.      In working  out this  procedure, if  the minimum  of 15 times of the candidates are identified and results declared, it would  not be  necessary to pick up more general/reserved candidates. It would not bef necessary to declare the result



of more  than 15 times the total notified vacancies/posts so as to  enable them  to compete  in the main examination. The object of  screening test is to eliminate unduly long number of  persons   to  appear   for  main  examination.  If  more candidates  are   called  by   declaring  their   result  in priliminary examination  the object  of  Rule  13  would  be frustrated.      The next  question is:  whether  the  OBCs  are  to  be treated alike  Scheduled Castes  and  Scheduled  Tribes  and given the  5% cut  off marks  in the Preliminary Examination under proviso  to  Rule  13  and  whether  omission  thereof prohibits the  right to  equality envisaged  in Article  14? Article 14  provides right  to equality  of opportunity  and equal protection  of law.  Articles 15 and 16 are species of Article 14. Article 16(1) prohibits discrimination and gives equality of opportunity to every citizen in matters relating to employment  or appointment to any office under the state. Article 16(14)  elongates the  equality  of  opportunity  to unequals by  affirmative action  by enjoining upon the State to make  provision for reservation of appointments for posts in favour  of "any  backward class of citizens" which in the opinion of  the State  is not  adequately represented in the service under  the state.  It  is  now  well  settled  legal position that Article 16(4) is not exception but a facet of Articles 14  and 16(1).  It gives  power  to  the  State  to effectuate the opportunity of equality to any backward class of citizens.  Article 366(24) defines ’Scheduled Castes" and Article 366(25)  defines  ’Scheduled  Tribes’.  Article  341 empowers the  President in consultation with the Governor of the State  specify by public notification that the tribes or tribal communities  or parts  of or  groups within tribes or tribal communities  which shall  for the  purposes  of  this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be Similarly, Article 342(1)  gives power  to the President to specify the tribes or tribal communities which shall, for the purpose of Constitution, be  deemed to  be Scheduled Castes in relation to the  State or Union Territories, as the case may be. That will be  subject to  the law  made by  the Parliament  under clause (2) of Article 341 and 342(2) thereof. The expression "Backward  Classes"   has  not   been  defined   under   the Constitution but the President has been empowered to appoint a Commission  to investigate into the conditions of backward classes for  recommendation with regard to steps to be taken by the Union or the State Governments to remove difficulties and to  improve their  conditions. Commission  like  Kelckar Commission and  Mandal  Commission  were  appointed  by  the President  who   identified   the   backward   classes.   On identification of  social and  educational backwardness  and acceptance  thereof   by  the  appropriate  Government,  the President or  the Governor  of the  State  Government  would issue public  notification extending the benefits to improve their conditions.  Until such  a notification  is published, Backward  Classes   are  not  entitled  to  the  benefit  of reservation  under   Article   15(4)   or   16(4)   of   the Constitution. Articles  14 and  16 read  with  the  Preamble gives  equality   of  opportunity  in  matters  relating  to employment or  appointment to any office under the State. By hierarchical   unequal   social   status   and   denial   of opportunities and  facilities  due  to    untouchability,  a practice against  Scheduled Castes  and    Scheduled  Tribes living in  the forest  area require  protective measures  to remove handicaps  and disadvantages  suffered by the members belonging to the Scheduled Castes and Scheduled Tribes so as to enable  them to  compete for selection. The appearance of



injustice is  denial of  justice. In Madhu Kishwar & Ors. v. State of  Bihar &  Ors.[(1996) 5  SCC 125,  para 38], it was laid down  that law  is the  manifestation of  principles of justice. Rule  of law should establish a uniform pattern for harmonious existence  in a  society where  every  individual should exercise  his rights to his best advantage to achieve excellence, subject  to the  protective discrimination.  The best advantage of one person could be the worst disadvantage to another.  Law steps  in to  iron  out  such  creases  and ensures equality  of protection  to individuals  as well  as group liberties.  Man’s status  is a creature of substantive as well  as procedural  law to  which legal  incidents would attach. Justice,  equality and  fraternity are  Trinity  for social  and   economic  equality.   Therefore,  law  is  the foundation on  which the potential of the society stands. If the law  is to  adapt itself  to the  needs of  the changing society,  it   must   be   flexible   and   adaptable.   The constitutional objective  of socioeconomic  democracy cannot be realised  unless all  sections of the society participate in the  State power  Equally irrespective  of,  their  cast, community, race,  religion and  sex. All  discriminations in sharing the  State power  made on  these grounds  and  those discriminations are  to be removed by positive measures. The concept of  equality, therefore, requires that law should be adaptable to  meet equality. Article 38 mandates to minimise inequality in  income and  to eliminate  the  inequality  in status, facilities  and opportunities  not  only  among  the individual but  also among the groups of people to secure to them adequate  means to  improve excellence  in all walks of life. Article  46 directs  the State to promote with special care the  educational and  economic interests  of the weaker sections of the people, and, in particular, of the Scheduled Castes and  the Scheduled  Tribes, and  to protect them from social  injustice  and  all  forms  of  exploitation.  Equal protection class, therefore, requires affirmative action for those placed  unequally. Equality for unequals is secured by treating them  unequally.  Affirmative  action  or  positive discrimination,  therefore,   is  inbuilt   in  equality  of opportunity in  status enshrined in Articles 14 and 16(1) of the Constitution.  Therefore, Scheduled Castes and Scheduled Tribes stand as two separate classes while OBCs stand apart.      The State  had evolved  the principle of reservation to an office  of the  State or post as an affirmative action to accord socio-economic  justice guaranteed in the Preamble of the Constitution;  the fundamental  rights and the directive principles which  are the  Trinity of  the  Constitution  to remove social  education  and  economic  backwardness  as  a constitutional policy  to accord  equality  of  opportunity, social status  or  dignity  of  person  as  is  enjoined  in Articles 14,  15, 16,  21, 38,  39, 39A, 46 etc. Article 335 enjoins the  State to  take the  claims of Dalits and Tribes into consideration for appointment to an office/post in the services  of  the  State  consistently  with  efficiency  of administration. Though  OBCs are  socially and educationally not forward,  they do  not suffer  the same social handicaps inflicted upon  Scheduled  Castes  and    Scheduled  Tribes. Articles  15(2)  and  17  furnish    historical  and  social dissatisfaction inflicted on them. The object of reservation for the  Scheduled Castes  and Scheduled  Tribes is to bring them  into  the  mainstream  of  national  life,  while  the objective in  respect of  the backward  classes is to remove their social and educational handicaps. Therefore, they are always  treated   dis-similar  and   they  do  not  form  an integrated class  with Dalits  and Tribes for the purpose of Article 16(4)  or 15(4).  Obviously, therefore,  proviso  to



Rule 13  confines the  5%  further  cut  off  marks  in  the preliminary examination  from the  lowest  range  fixed  for general candidates. So, it is confined only to the Scheduled Castes and  Scheduled Tribes  who  could  not  secure  total aggregate marks on par with the general candidates. The Rule expressly confines  the benefit  of the proviso to Scheduled Castes and  Scheduled tribes.  By process of interpretation, OBCs. cannot  be declared  alike the  Scheduled  Castes  and Scheduled  Tribes.   Therefore,  the   contention  that  the doctrine of  fusing  "any  backward  class  of  citizen’  in Article 16(J),  further classification  of Scheduled  Castes and Scheduled  Tribes and  OBCs. as distinct classes for the purpose of  reservation and  omission  to  extend  the  same benefits to OBCs violates Article 14 is devoid of substance. If the  logic of equality as propounded by minority Judge is given  acceptance,  logically  they  are  also  entitled  to reservation of  seats in  the House  of the People or in the Legislative  Assemblies   of  States,   though  confined  to Scheduled Tribes  and  Scheduled  Castes,  by  operation  of Article 334(a)  of the  Constitution  with  a  non  obstante clause engrafted  therein. The  founding    fathers  of  the Constitution, having  been alive  to the  dissimilarities of the  socio-economic   and  educational   conditions  of  the Scheduled Castes and Scheduled Tribes and others segments of the society  have  given  them  separate  treatment  in  the Constitution. The  Constitution has  not expressly  provided such benefits  to the  OBCs except by way of specific orders and public  notifications by  the appropriate Government. It would, therefore, be illogical and unrealistic to think that omission to  provide same  benefits to OBCs, as was provided to Scheduled  Castes and  Scheduled Tribes,  was void  under Articles 16(1) and 14 of the Constitution.      Accordingly we  are of  the view that the OBCs. are not entitled to 5% cut off marks in the preliminary examination. as provided under proviso to Rule 13.      As regards the preparation of separate list of General, OBCs, SCs,  STs and  physically handicapped,  in view of the fact that  the Latest  amendment has been made explicit what was implicit  in Rule  13, we  are of the view that separate lists are required to be published by the Service Commission in respect of the candidates in the respective categories so as to make up number of candidates 15 times the notified or anticipated posts/vacancies so as to enable them to appear in the main examination. It is true that the amendment is  prospective in operation. However, it does not detract from  the efficiency  of Rule 13 originally made. In view of the above, the Public Service Commission is directed to call  all those  candidates that  constitute 15 times the posts/vacancies notified  or anticipated  in  terms  of  the above declaration  of law  so as to enable them to appear in the main examination.      The appeal is accordingly disposed of. No costs.