Honble RAFIQ, J.–The present writ petition has been filed by the petitioner Jitendra Singh Rawat with the prayer that the respondents be directed to give him appointment on the post of Instructor, Physical Education, according to his placement in the merit list and in the alternative, it has also been prayed that the respondents may be directed to fill in 6th vacancy at Roster Point No. 29 pertaining to the other backward Classes (in short OBC) for the purpose of appointment on the post of Instructor, Physical Education thereby appointing him on the said post.

(2). The case of the petitioner in nut shell is that the respondents by an advertisement invited applications from eligible candidates for appointment on the post of Instructor, Physical Education in District Rajsamand against the vacancies of the year 1989-99. Last date for submitting the applications forms was 15th Sept., 1998 and on the same day, the respondents held the selection proceedings and prepared a merit list. This merit list was consisting of 20 persons in General Category and 20 persons in OBC category, besides the candidates belonging to Scheduled Castes and Scheduled Tribes categories. The petitioner alleged that last person in the category of general candidates was having 89.37% marks and the petitioner who was at S.No. 6 in the category of OBC was having 91.22% marks and hence, the petitioner was entitled to be placed in General Category at S. No. 6. However, his name was not shown in General Category because the respondents prepared a separate list for OBC category. It has also been alleged that the respondent No. 3 issued various appointment orders for the period commencing from 10.3.1999 to 24.3.1999 and during this period, appointments were given to 30 male candidates and 5 female candidates. Last candidate among them had 90.18% marks. Accordingly, the petitioners right to consideration for appointment has been defeated inasmuch as the respondents have mis-applied the policy of reservation thereby violating the right to equality enshrined in Article 14 and 16 of the Constitution of India. It has also been alternatively argued that the respondents have filled in 30 vacancies. Six posts out of these 30 were required to be filled in from the candidates of OBC category as per their quota of reservation whereas the respondents have filled in only five vacancies.

(3). Learned counsel for the petitioner in support of his arguments relied upon various judgments of Honble Supreme Court in (1) Indra Sawhney vs. Union of India reported in AIR 1993 SC 477 (2) Yoganand Vishwarao Patil vs. State of Maharashtra & Ors. reported in (2005) 12 SCC 311 (3) R.K. Sabharwal vs. State of Punjab reported in (1995) 2 SCC 745 and (4) Ritesh R. Sah vs. Dr. Y.L. Yamul & Ors. reported in AIR 1996 SC 1378. Learned counsel for the petitioner cited above referred judgments on the proposition of law that even if a candidate belonging to reserved category has been able to secure a place in merit of general category, in other words, has secured more marks than the marks of the last candidate in general category, he cannot be considered for appointment against the reserved category and accordingly, his appointment should be made against the post meant for general category.

(4). On the other hand, the respondents have in their reply stated that they have prepared separate merit lists of general category, OBC, S.C. and S.T. Categories. Appointments were given to the selected candidates according to the Procedure of roster point. It has been stated that since the petitioner has applied for the post as an OBC candidate therefore, his candidature was considered accordingly to such selection procedure at roster point of OBC candidate. Since only five persons of OBC were appointed and petitioners name was placed at S.No. 7 in their merit, he could not be appointed. The petitioner at this stage cannot claim selection in general category because he had applied as a candidate of OBC and not as a ca

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