ORDER
Lakshmanan, C.J.
1. The petitioner belongs to the S.T. category and had applied for RHJS by direct recruitment. A Notification dated 28.10.99 was issued under the signatures of the Registrar General, Rajasthan High Court, whereby applications
were invited from Advocates for filling up 22 vacancies in Rajasthan Higher Judicial Service in accordance with the Rajasthan Higher Judicial Service Rules of 1969. Out of 22 vacancies advertised, 5 vacancies were reserved for [he women candidates in all categories, 4 posts for S.,C., A posts for S.T., 3 posts for OBC and 11 posts for general category candidates. Out of the 4 vacancies, in ST category, one post was reserved for woman candidate. On 6.8.2000, the screening test for all categories was held and result of the said screening lest was declared on 19.9.2000. In the said screening test 88 candidates were declared passed. Since against the three vacancies of ST (M) category, only 6 candidates were available, therefore, it was decided to call all the 6 candidates including the petitioner irrespective of their performance in the screening test. Before the commencement of the interviews, the Interview Committee constituted for selection had resolved that no general category candidate obtaining less than 50% marks should be taken to be suitable for appointment to RHJS. So far as the candidates belonging to reserved category were, concerned, it was scaled down by 10% i.e. upto 40% marks obtained at the interview. It was also re solved by the Interview Committee that the total marks of the interview shall be 400 and each of the member of the Committee would give marks out of 100. The interviews were held from 15.1.2001 to 25.1.2001. The petitioner was interviewed on 22.1.2001.
(2). The Hon’ble Judges Committee have recommended 12 candidates for OBC (for two vacancies for men and one vacancy for woman) for the female candidates in OBC category, altogether 6 female candidates appeared and the Committee had recommended 6 candidates for the interview. As far the SC, though, 4 posts were reserved for this category out of which I is reserved for female and 3 for male candidates. 5 male candidates had appeared and only one female candidate had appeared altogether in the test. Therefore, all the 5 male candidates and 1 female candidate were recommended for interview. As far as the Scheduled Tribe candidates are concerned, four posts were reserved, out of which one is reserved for female candidate. However only six male candidates had appeared and no female candidate had appeared in the test and therefore, all the six persons were recommended for the interview. In so far as general category is concerned, there are 11 posts, out of which 2 posts are reserved for female candidates. Altogether, 288 candidates appeared in the male category and 45 candidates should be recommended for the interview. But, some of the candidates have secured equal marks, the Committee instead of recommending 45 candidates, have recommended 46 candidates for the interview. So far as the female candidates are concerned, against 2 posts, 47 candidates had appeared and the Committee had recommended 10 candidates, but in view of the fact that some candidates have secured equal marks in the merit list, the Committee had recommended 12 women candidates for the interview. Thus, it is clearly seen that the respondent has adopted the reasonable and fair ratio of 1 : 5, but in the category of S.C. (men)-3 vacancies, S.C. (women)-l vacancy, S.T. (men)-3 vacancies and ST (women)-1 vacancy, the requisite number of candidates were not available in the ratio which has resulted in calling of lesser number of candidates than the ratio. As regards the OBC category, in all there were 3 posts, 2 for men and 1 for woman. Against 2 posts for men 12 candidates were called as per the marks obtained in the screening test.
(3). As already noticed, the Interview Committee constituted for selection of candidates had resolved that no general category candidate obtaining less than 50% marks at the interview should be taken to be suitable for appointment to RHJS. So far as the candidates belonging to the reserved categories, it was decided to scale down the criteria by 10% i.e. upto 40% of the marks obtained at the interview. Before the commencement of the interviews, the Interview Committee resolved that the total marks for the interview shall be 400 and each member of the Committee would give marks out of 100. Accordingly, marking was done individually and total marks obtained by a candidate were tabulated and signed and kept in sealed cover pursuant to the directions issued by this Court. Since 15 candidates from the General, OBC and SC
category candidates were found suitable for recommending for the post of RHJS, the names were recommended by the Interview Committee. The Committee did not find any candidate suitable for being recommended for appointment against the four vacancies reserved for ST (General) and ST (Women) candidates and against the one vacancy reserved for SC (women), the Committee found one candidate suitable for recommendation and her name has been included in the list of candidates recommended. The Committee also did no! find any other candidate in the SC category against the three remaining vacancies in that category for recommendation. Since the Committee did not find any other candidate suitable for recommendation for appointment to the Rajasthan Higher Judicial Service, no reserved list is prepared and the remaining seven vacancies in the SC and ST category are recommended to be carried forward to the next recruitment. Accordingly, a notification No. Estt. (RJS) 12/2001, dated, 13th Feb., 2001, calling applications from the Advocates belonging to the SC/ST category for filling 7 reserved unfilled vacant posts of Additional District & Sessions Judges by direct recruitment in the Rajasthan Higher Judicial Service, in accordance with the provisions of the Rajasthan Higher Judicial Service Rules, 1969, was also issued and published in the Hindustan Times dated, February 16, 2001 and In other newspapers.
(4). It is also pertinent to notice that the number of vacancies of reserved category have been worked out as per the roster register and the Government Circular dated 20.11.97, the vacancies in ST category were determined four in number as per the roster register and the Government Circular dated, 20.11.1997, As far as the reservation for the OBC is concerned, the same was rightly determined as three out of which two were for men and one was for women as per the rosier register maintained by the respondent and the Government Circular dated 20.11.1997.
(5). The recommendations of the Interview Committee were placed before the Hon’ble Full Court in Feb., 2001 and the recommendation of the interview Committee was accepted and on 13.2.2001, the unfilled 7 posts of reserved category were re-advertised. Out of which 3 posts are for the SC category and 4 posts for ST category. Out of 4 posts of ST, 1 post is for ST (woman) candidate.
(6). In the instant case, the petitioner who belongs to Meena community which is recognised as Scheduled Tribe under the Constitution (ST) Order, 1959, appeared for the written examination and qualified in the written test, was interviewed by the Interview Committee on 22.1.2001. The following are his submissions:
(a) Article 16(4) of the Constitution of India provides for job reservation to the backward classes and especially to the SC and ST and that the provisions regarding reservation roster are not being implemented in letter and spirit frustrating the very object behind them.
(b) The provisions regarding relaxation, reservation and concession to the candidates of SC and ST had been rightly interpreted and applied in true letter and spirit and the petitioner must have been selected for the appointment to the post of Addl. District & Sessions Judge, but unfortunately this was not done.
(c) The petitioner has now crossed the age of 45 years in terms of the advertisement and, therefore, he cannot apply for the post of Addl. District & Sessions Judge again.
(d) The non-selection of the petitioner is illegal, unfair and violative of Article 14 and 16(4) of the Constitution of India. Though, the written examination was conducted, but no mark-sheet was issued to the candidates.
(e) The petitioner had been working as Asstt. Public Prosecutor and Asstt. Director of Prosecution and conducting various criminal cases including the Sessions Cases, but was not selected against the re-
served post in accordance with the constitutional mandate of proportionate reservation.
(f) Since the suitable candidates in the category are not available in the required number for filling the vacant posts of Scheduled Caste and Scheduled Tribe candidates on the basis of minimum standard, these vacant posts can be filled by giving further relaxation in the minimum standard.
(7). Raising the above contentions, the petitioner has filed the present writ petition with the following prayers:
(1) By appropriate order or direction the respondents be directed to appoint the petitioner as on one of the post of Addl. District & Sessions Judge reserved for ST advertised in advertisement Annex. 2.
(2) In case, if the petitioner is not given appointment on the post of Addl. District & Sessions Judge, then he may be given age relaxation which allowed to apply for post of Addl. District & Sessions Judges advertised through Annex. 5.
(8). Along with the writ petition, the petitioner had annexed caste certificate and the notifications etc.
(9). We have perused the averments made in the writ petition and considered the submissions made and decisions cited by the learned counsel for the petitioner. Learned counsel has prayed for appointment of the petitioner to one of the posts of Additional District & Sessions Judge reserved for ST in pursuance to the Advertisement, Annexure-2 and alternatively prayed that in case the said appointment is not given to him, then he may be given age relaxation for the post of Addl. District & Sessions Judges advertised on 13.2.2001 (Annex. 5). The above mentioned relief has been claimed on the ground that the petitioner is eligible to be considered as a candidate of ST category available for appointment to the vacancies reserved for ST category without making any specific averments regarding the suitability for the said post. We are unable to countenance the said submission. It is settled law that it is not the function of the writ court to issue any direction for appointment to a particular post and that the direction can be limited only to the extent that if the petitioner is found to be suitable, then he can be considered for appointment. In the instant case, the petitioner has not secured the minimum qualifying marks of 10% fixed for reserved category candidates, which was 10% less than the cut off marks of 50% fixed for the general category candidate. The marks for the reserved category candidates has been scaled down keeping in view the efficiency in the administration of justice, which is in consonance with Article 335 of the Constitution of India. Further lowering down of marks would be, in our opinion, contrary to Articles 14, 16 and 335 of the Constitution of India.
(10). Article 335 of the Constitution of India deals with the claim of Scheduled Caste and Scheduled Tribes to services and posts. Art. 335 of the Constitution reads thus:-
Art. 335 The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
Provided that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in mat-
ters of promotion to any class or classes of services or posts in connection with the affairs of She Union or of a State.”
(11). As provided in the above Article, it is the constitutional duty of the State to take into consideration the claims of the members of the Scheduled Caste and Scheduled Tribes in the matter of appointment subject to the consideration of the efficiency of the administration. This duty is to be exercised in keeping with the Directive Principles laid down in Art. 46 to promote with special care the educational and economic interests of the Scheduled Castes and Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. The prolonged controversy as to the reconciliation between the need for reservation under Art.16(4) and the need for efficiency of the administration under Art. 335 has been settled by the majority judgment in the 9-Judges Bench in lndra Sawhney vs. Union of India (1). The propositions laid down in Indra Sawhney’s case are:
I. Reservation is not necessarily anti-meritorian because efficiency is not identical with merit in an examination (Para 836).
II. The condition of maintenance of ‘efficiency of the administration’ has to be respected not only while considering the claims of the S.C. and the S.T., but also the claims of other backward classes and weaker sections (paras 8, 743), who come under Art. 16(4).
III. Even though some sacrifice of merit has to be made in making reservation for the backward classes, that cost has to be paid, for, ensuring ‘social justice’ as an object of our Constitution (para 836).
IV. For being entitled to reservation under Art. 16(4), (a) the claimants must belong to a ‘backward class’ and (b) such class must be inadequately represented in the Services under the State, (para 798).
Whether a particular class is adequately represented in the Services under the State is a matter within the subjective satisfaction of the appropriate Government (paras 798, 286), based on the materials in the possession of the government and the existing conditions” in the society (para 798).
Such satisfaction is not, however, beyond the purview of judicial review. Though the Court shall have due deference to the opinion of the government (para 842), the Court would interfere on any of the grounds laid down in the Barium Chemicals case.
V.A reconciliation between the concepts of reservation and efficiency has been made by the majority judgment by making a classification amongst different categories of appointments, as follows:
A. Recruitment or initial appointment.
(a) Generality of posts.
(b) Posts requiring special efficiency, skill and the like.
B. Promotion to higher posts.
(12). We have perused the Rajasthan Higher Judicial Service Rules, 1969. Rule 14 deals with direct recruitment, which runs as follows:
“14. Age- A candidate for direct recruitment to the service must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January preceding the last date fixed for submission of the application;
Provided that for direct recruitment in the years, 1968, 1969, 1970, 1971 and 1972 the upper age limit shall not apply to any candidate who is a Released Commissioned Officer as defined clause (e) of sub
rule (I) of rule 3 of the Rajasthan Civil Services (Recruitment of Released Emergency Commissioned and Short Services Commissioned Officers) Rules, 19G8, if he fulfils the qualifications laid down in the rule 15.”
(13). Rule-21 deals with the list of candidates selected by direct recruitment, which is reproduced hereunder:
“% The Court shall prepare a list of all the candidates whom it considers suitable for appointment to the service arranging their names in the order in which they are to be appointed and shall recommend their names to the Governor for a appointment to !he service having regard to the provisions of rule 9.”
% Substituted vide govt. Notification No.F.19 (36) Jud./67, GSR 15 dated, 18.6.1969 published in the Rajasthan Gazette, Extra Ordinary dated, 18.6.1969 P, 56.”
(14). In the above rules, there is no provision for relaxation of age and qualification. Rule-14 prescribes the age, which should not be less than 35 years and more than 45 years on 1st January of the preceding year of the day fixed for submission of application. It is settled preposition of law that no direction contrary to the rules can ever be issued. The date of birth of the petitioner, as given, is 8.4.1954 and the petitioner crossed the maximum age limit of 45 years as on 1.1.2000. Therefore, in our opinion, the petitioner is not entitled for any relief of age relaxation.
(15). Learned counsel for the petitioner has relied upon the judgment of Praveen Singh vs. State of Punjab and Ors. (2). In that case; the selection and appointment was made on the basis of marks in viva voce test alone. Their Lordships of the Supreme Court held that the action of the Public Service Commission suffers from vice of arbitrariness and unreasonableness and that the marks secured in the written test cannot be avoided and that both written and viva voce test be taken into consideration for purpose of effecting appointment. In the instant case, there was no written competitive test. Therefore, the said judgment is distinguishable on facts. Learned counsel for the petitioner then cited the judgment of the Supreme Court in the case of Govt. of Andhra Pradesh vs. P.B. Vijay Kumar and another (3). The above case related to the fact that the reserved category candidates cannot be made to compete to general category candidates. As already noticed in paragraph (supra), in the instant case, separate qualifying marks were fixed for the reserved category candidates (40%) and a separate list was prepared for the said category and for other categories 50% marks was fixed. In the above judgment, the Supreme Court held that the category for whose benefit a reservation is provided is not required to compete on equal terms with the open category and that their selection and appointment to reserved posts is independently on their inter se merit and not as compared with the merit of candidates in the open category and that the very purpose of reservation is to protect this weak category against competition from the open category candidates. The ratio of the above judgment is also not applicable to the facts and circumstances of this case. As already seen in the instant case, separate qualifying marks were fixed for the reserved category. Learned counsel for the petitioner further relied upon the judgment of this Court passed in the case of Arvind Kumar Sharma vs. Rajasthan High Court (4), by the Division Bench comprising of Hon’ble Mr. Justice P.P. Naolekar and Hon’ble Mr. Justice P.K. Tewari on the issue of grant of age relaxation. The said judgment is distinguishable on facts and on law. In the above judgment the appellants were not called for interview on account of their dispute of eligibility of counting of their services as APP as experience of advocate and the said dispute was resolved by the Supreme Court in the case of Sushma Suri vs. Government of National-Capital Territories of Delhi (5). By that time the selection was over and the appellants were not called for interview but when the applications were invited and applications were to be filled in and further interviewed the appellants were within the age limit. In the instant case, the petitioner
was called for interview initialed in pursuance to the earlier notification issued on 28.10.1999 but the petitioner was not found suitable for appointment. Therefore, in the above cases, the learned Judges under the peculiar circumstances of the case fell that the appellants in that case should be given one opportunity in the interest of justice and equity and directed that the appellants be called for interview or any other test prescribed under the law in the next direct recruitment process for the appointment to Rajasthan Higher Judicial Service irrespective of their age bar. As noticed, the above case has been decided “in the peculiar circumstances of the case” and the Court has not considered that there is no provision in the Rules of 1969 for any age relaxation. In our opinion, the judgment rendered by the Division Bench in the above case cannot at all be considered and read as a precedent.
(16). In a very recent judgment a Division Bench of this Court comprising of Hon’ble the Chief Justice Dr. AR. Lakshmanan and Hon’ble Mr. Justice A.K. Parihar in the case of Pratap Singh vs. Rajasthan High Court (6), had an occasion to consider the suitability of the candidates belonging to the reserved category while making selection of RHJS and the Division Bench was of the view that even the reserved category candidates should obtain minimum marks as fixed by Interview Committee for selection to RHJS. The Division Bench had expressed its full satisfaction in regard to the procedure adopted and followed during the entire selection.
(17). We have already referred to the judgment of the Supreme Court in Indira Sawhney (supra) in which their Lordships have considered the combined effect of Articles 14, 16(4) & 335 of the Constitution of India. The Supreme Court held that “it may be permissible for the Government to prescribe a reasonably lower standard for Scheduled Castes/Scheduled Tribes/Backward Classes consistent with the requirements of efficiency of administration. It would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature of duties attached to the post and the interest of the general public should also be kept in mind. A programme of reservation may sacrifice merit but does not in any way sacrifice-competence because the beneficiaries under Article 16(4) have to possess the requisite basic qualifications and elgibility and have to compete among themselves though not with the mainstream candidates.
(18). In State of Karnataka vs. Kumari Gowri Narayana Ambiga etc. (7), the Supreme Court held as under:-
“The direct recruitment to various cadres in Class III service in the Karnataka State is on the basis of merit list prepared on the basis of competitive examination or selection made on the basis of objective criteria provided in the various Rules. The Special Rules on the other hand provide entry into various cadres of Class III service to Scheduled Caste, Scheduled Tribe and Backward Tribe candidates without undergoing the process of selection. They are appointed as local candidates in the first instance and thereafter under the Special Rules they are inducted into various cadres of Class III service without going through the process of selection. The procedure provided under the Special Rules is not consistent with the maintenance of standards of efficiency in the State Services. The Special Rules neither provide for any reservation nor any other affirmative action permissible under Art. 16(4). The Rules, therefore, cannot be protected under Art. 16(4) of the Constitution of India. They infract Article 16(1) of the Constitution of India.”
(19). In the above judgment the Supreme Court held that the argument that the irregular selection of the candidates belonging to reserved candidates would seriously impair the standard of efficiency of administration and would weaken the ramparts against inefficiency in public service cannot be rejected. The candidates may have the minimum educational qualification prescribed for the post, but that only satisfied the
eligibility test and not the suitability test. The basic eligibility is quite distinct and different from suitability test with an application of the same yardstick to all candidates with a prescription of a minimum standard.
(20). In Dr. Preeti Srivastava and another vs. State of Madhya Pradesh and others (8), a Constitution Bench of the Supreme Court considering the effect of Article 16(4) and 335 of the Constitution of India held that while considering the claim of Scheduled Castes and Scheduled Tribes for appointments, the maintenance of efficiency of administration shall be kept in sight. In this context para 11 of the judgment can be usefully reproduced hereunder:
“The departure from the principle of equality of opportunity has to be constantly watched. So long as the backward group is not adequately represented in the services under the State, reservations should be made. Clearly, reservations have been considered as a transitory measure that will enable the backward to enter and be adequately represented in the State Services against the backdrop of prejudice and social discrimination. But finally, as the social back drop changes and a change in the social backdrop is one of the constitutional imperatives, as fie backwards are able to secure adequate representation in the services, the reservations will not be required. Article 335 enters a further caveat. While considering the claims of Scheduled Castes and Scheduled Tribes for appointments, the maintenance of efficiency of administration shall be kept in sight.”
(21). Further in Para No. 13 their Lordships of the Supreme Court have held as under:-
“In the case of Article 16(4) the Constitution makers explicity spelt out in Article 335 one such public good which cannot be sacrificed, namely the necessity of maintaining efficiency in administration.
(22). In Satish Kumar vs. Jalandhar Improvement Trust and another (9), their Lordships of the Supreme Court have held that the prescribed eligibility cannot be relaxed de horse the rules and that the general power of supervision and control does not include the power to appoint a person without basic qualification and hence a person not possessing the minimum qualification is not entitled to equal pay as Pumpset Operator and that unequals cannot be treated equally.
(23). In Himachal Road Transport Corporation vs. Dinesh Kumar & Ors. (10), their Lordships of the Supreme Court held that even if a person is fully qualified to be appointed, the court should only give direction for consideration for appointment and not for appointment. The Supreme Court also held that in absence of vacancy (compassionate appointment) it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint a person when vacancy is not available and if person is so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. It is also not open to the Tribunal either to direct the appointment of any person to a post or direct the authorities concerned to create a supernumerary post and then appoint a person to such a post.
(24). In the instant case, the petitioner having appeared before the Selection Committee and having taken a chance, is now estopped by conduct from challenging the selection process in any manner. This Court is justified in refusing to grant the relief prayed for in this writ petition in regard to relaxation of age and for appointment. The writ petition in our opinion, is an after thought and hence, is liable to be dismissed. Accordingly, we do so.