1. - The petitioner in the present case is working on the post of Teacher Grade II (Mathematics). He was appointed vide order dated 1.7.1994 with the Education Department of the State. While in service, he came across an advertisement issued by the RPSC on 7.3.2002 advertising 529 posts of Headmasters. Petitioner being eligible applied for the appointment on the said post. He eventually cleared the written examination and was then called for interview. The respondent-RPSC in the result declared on 18.12.2003 placed his name at S.No.106 of the waiting list of the general candidates.

2. Petitioner belongs to other backward classes (for short-OBC). His grievance is that had the law of reservation been correctly applied by the respondents, he would have secured appointment on the post of Headmaster.

3. Shri Dinesh Yadav, learned counsel appearing for the petitioner has argued that the respondent-RPSC in preparing merit list of the Headmasters has included 13 candidates in the category of OBC, even though they secured more marks than the last candidate of the general category. In the originally filed writ petition, though the petitioner asserted that there were 10 such candidates who had more marks than the cut off marks of the general category and yet included in the list of OBC candidates. The RPSC in its reply to the writ petition has disclosed that in fact number of such candidates were 13. These candidates by dint of their merit were entitled to be treated as general candidates and if their names were included in the merit list of general candidates, correspondingly the name of the petitioner would have been pushed up by 13 ranks. He being fifth candidate in the waiting list of OBC candidates, would have certainly been appointed. The respondents by wrongly applying the law of reservation have committed a serious illegality and deprived the petitioner of his right to appointment. Learned counsel Shri Dinesh Yadav in support of his arguments has relied on the judgement of Constitutional Bench of the Supreme Court in Indra Sawhney & Ors. v. Union of India & Ors.-1992 Supp (3) SCC 217 and other judgements of the Supreme Court in Ajay Kumar Singh & Ors. v. State of Bihar & Ors.-(1994) 4 SCC 401, R.K. Sabharwal v. State of Punjab-(1995) 2 SCC 745, Shri Ritesh R. Sah v. Dr. Y.L. Yamul & Ors.-AIR 1996 SC 1378 and Full Bench judgement of this Court in Shekh Mohd. Afzal & Anr. v. The State of Rajasthan & Anr.- 2008(1) WLC (Raj.) 60. : [2008(3)SLR 551 (Raj)]

4. Shri S.S. Sharma, learned Government Counsel for the State and Shri S.N. Kumawat, learned counsel for the respondent-RPSC have opposed the writ petition.

5. Shri S.N. Kumawat, learned counsel for the respondent-RPSC has contended that though the petitioner upon qualifying the written examination was called for the interview but in the result that was declared thereafter, his name did not find place in the main select list but he was placed at S.No.106 in the waiting list of the general category. Since the State Government did not requisition the names from the reserve list, the petitioner cannot claim appointment. As regards 13 candidates who were included in the OBC category in spite of securing more marks than the cut off of the general category, Shri S.N. Kumawat, submitted that they were those candidates who took advantage of relaxation of age available to the OBC category. Only such candidates were pushed up to be placed in the general merit, who not only secured more marks than the cut off marks of the general category but also did not take any advantage of the relaxation of the age. It was argued that none of the candidates, who deserves to be in general category, has been retained in the list of reserved category unless he has availed of the benefit available to the reserved category to which he belongs. Contention of Shri S.N. Kumawat is that these candidates could not be allowed to take dual benefits both of the relaxation in age and also of counting their seat