Patnaik, C.J. -- 1. This is the writ appeal against the order dated 24.4.2006 passed by learned single Judge in WP NO. 1706 of 2006 (S).

2. The facts briefly are that an advertisement 9.10.2003 was issued by the Madhya Pradesh Public Service Commission (for short the M.P. PSC), respondent No.2, inviting applications for recruitment to the different posts in the State Civil Services. In the said advertisement 91 posts were reserved for OBC category candidates and 281 posts were meant for General candidates, besides other posts reserved for SC, ST and other categories. In response to the said advertisement the appellant who belongs to the OBC category applied and the respondent No.2 issued admission card to the appellant for appearing in the preliminary examination. The appellant, however, did not succeed in the preliminary examination. He filed WP No. 1706 of 2006 (S) before this Court contending that under sub-section (4) of section 4 of the M.P. Lok Sewa (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhde Vargon Ke Liye Arakshan) Adhiniyam, 1994 (for short the Adhiniyam of 1994), those amongst the OBC candidates who get selected on the basis of their merit will not be considered for the posts reserved for OBC candidates. The learned single Judge of this Court dismissed the writ petition by order dated 24.4.2006. Aggrieved, the appellant has filed this writ appeal.

3. Mr. Thakur, learned counsel for the appellant submitted that the appellant had obtained 317 marks in the preliminary examination and the cut-off marks in respect of candidates who were selected for appearing in the main examination were 325. He submitted that sub-section (4) of section 4 of the Adhiniyam of 1994 is clear that if a person belonging to any of the reserved categories gets selected on the basis of merit in open competition, he shall not be adjusted against vacancies meant for reserved categories but he will be adjusted against vacancies meant for General category candidates. He also cited the decision of the Division Bench of this Court in Rajshri Tiwari v. State of M.P. and others [2006 (I) Vidhi Bhasvar 311 = 2006 (2) MPLJ 121] in which it has been held, relying on the aforesaid provision in section 4 (4) of the Adhiniyam of 1994 as well as the decisions of the apex Court that reserved category candidates can compete for unreserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation.

4. Mr. Hemant Shrivastava, learned counsel for respondent No.2, on the other hand, submitted that sub-section (4) of section 4 of the Adhiniyam of 1994 will apply at the time of final selection of candidates and not to the preliminary examinations conducted for screening the candidates for the main examination through the preliminary examination. He further submitted that normally by such preliminary examination candidates numbering 15 times the number of posts advertised are called for main examination on the basis of performance in the preliminary examination and following this principle, the respondent No.2 has called 7907 candidates for 542 posts for the main examination on the basis of the marks secured by them in the preliminary examination. On a query by the Court as to how many of these candidates who have been called for the main examination on the basis of their marks in the preliminary examination belong to OBC category, Mr. Shrivastava submitted that as many as 1365 candidates belonging to OBC category have been called for main examination.

5. Sub-section (4) of section 4 of the Adhiniyam of 1994 on which great reliance has been placed by Mr. Thakur, is quoted herein below:

"4. Fixation of percentage for reservation of posts and standard of evaluation -

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(4) If a person belonging to any of the categories mentioned in sub-section (2) gets selected on the basis of merit in an open competition with general candi