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LAWS(MPH)-2022-4-106

HIGH COURT OF MADHYA PRADESH (AT: JABALPUR)

Coram : SUJOY PAUL J.

Decided On : April 07, 2022

Appeal Type : W. P. No. 542 of 2021 and WRIT PETITION No. 419 of 2021

Appellant(s) :

Kishor Choudhary

Respondent(s) :

STATE OF MADHYA PRADESH

Advocate(s) :

Vibhor Khandelwal, ASHISH AGRAWAL, Ashish Anand Bernard, BHARAT SINGH,

PRAMOD THAKRE, A.S.BAGHEL, PARAG TIWARI

Equivalent Citation :

ILR(MP)-2022-0-1671, MPLJ-2022-3-131, LAWS(MPH)-2022-4-106

Referred Judgement(s) :
- Charanjit Lal Chowdhary Vs. Union Of India, [AIR 1951 SC 41] [Referred To]
- State Of Orissa Vs. Sudhansu Sekhar Misra, [AIR 1968 SC 647] [Referred To]
- Regional Manager Vs. Pawan Kumar Dubey, [AIR 1976 SC 1766] [Referred To]
- Ambica Quarry Works Ambalal Manibhai Patel Vs. State Of Gujarat, [AIR 1987 SC 1073] [Referred
To]
- Indra Sawhney Vs. Union Of India, [1992 SUPP3 SCC 217] [Referred To]
- Sec A P Public Service Commission Vs. B Swapna, [2005 4 SCC 154] [Referred To]
- Union Of India Vs. Major Bahadur Singh, [2006 1 SCC 368] [Referred To]
- Commnr Of Customs Port Chennai Vs. Toyota Kirloskar Motor Pvt Ltd, [2007 5 SCC 371]
[Referred To]
- Prafull Goradia Vs. Union Of India, [2011 2 SCC 568] [Referred To]
- Cmd Chairman B S N L Vs. Mishri Lal, [2011 14 SCC 739] [Referred To]
- Rajshri Tiwari Vs. State Of Madhya Pradesh, [2006 2 MPLJ 121] [Referred To]
- Hemraj Rana Vs. State Of M P, [2006 3 MPHT 477] [Referred To]
- Namit Sharma Vs. Union Of India, [2013 1 SCC 745] [Referred To]
- Dharmendra Kirthal Vs. State Of U.P., [2013 8 SCC 368] [Referred To]
- Cellular Operators Association Of India Vs. Telecom Regulatory Authority Of India, [2016 7 SCC
703] [Referred To]
- Deepa E.V. Vs. Union Of India And Ors., [2017 12 SCC 680] [Referred To]

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- Viva Highways Ltd. Vs. Madhya Pradesh Road Development Corporation Ltd., [2017 2 MPLJ 681]
[Referred To]
- Saurav Yadav Vs. State Of Uttar Pradesh, [2021 4 SCC 542] [Referred To]
Referred Act(s) :
- Constitution Of India, Art.14, Art.15, Art.16, Art.309, Art.338B(9)
- Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jation Aur Anya Pichhade Vargon Ke
Liye Arakshan) Adhiniyam, 1994, S.4(4)
Headnote:
A. CONSTITUTION OF INDIA - ART.14 - Equality before law, ART.15 - Prohibition of
discrimination on the grounds of religion, race, caste, sex or place of birth, ART.16 - Equality
of opportunity in matters of public employment, ART.309 - Recruitment and conditions of
service of persons serving the Union or a State, ART.338B(9), MADHYA PRADESH LOK
SEVA (ANUSUCHIT JATIYON, ANUSUCHIT JAN JATION AUR ANYA PICHHADE
VARGON KE LIYE ARAKSHAN) ADHINIYAM, 1994 - S.4(4) - (2) gets selected on the
basis of merit in an open competition with general candidates, he shall not be adjusted against
the vacancies reserved for such category under sub-sec. - (supra) cannot be applied submits
Shri Vinayak Prasad Shah, Advocate by contending that OBC candidate therein had applied
in OBC category by taking advantage of relaxation of age being a reserved category
candidate whereas in the instant cases, the petitioners have not taken any such advantage of
reserve category except relating to relaxation of fees which is permissible under the Rules. -
Unless a reserve category candidate who has secured more or equal marks qua UR category
candidate is given birth in all stages including preliminary and main examination in UR
Category, he will not get actual benefits envisaged in aforesaid Articles as well as judgment of
Supreme Court in Indra Sawhney (supra). - 4 of the Adhiniyam of 1994 will equally apply to
preliminary examinations conducted for the purpose of screening candidates for the main
examination, the MP PSC would be well within its discretion to decide as to what would be
the procedure which should be followed in the preliminary examination for screening
candidates for the main examination.
B. In absence of any specific provision in the Rules, the Division Bench expressed its inability to
apply the principle that a reserve category candidate secured equal or more marks than UR
category candidate will occupy a UR seat. - As per these Rules, the State itself decided to
apply the said principle in favour of such reserve category candidates, who have secured
equal or more marks than general category candidates in all levels of selection including
preliminary and main examination. - The relevant provisions are reproduced herein under in
tabular form to examine the provisions in
juxtaposition.JUDGEMENT_106_LAWS(MPH)4_2022.htmA comparative reading of main
Rule and two subsequent amendments above makes it clear that as per main unamended
Rule, the meritorious reserved category candidate was entitled to compete with U.R. - Peter
Howking) held as under :-"though a law be fair on its face and impartial in operation, yet, if

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it is administered by public authority with an evil eye and an unequal hand so as practically
to make illegal discrimination between persons in similar circumstances materially to their
right, the denial of equal justice is still within the prohibition of the Constitution.
C. Peter Howking) held as under :-"though a law be fair on its face and impartial in operation,
yet, if it is administered by public authority with an evil eye and an unequal hand so as
practically to make illegal discrimination between persons in similar circumstances
materially to their right, the denial of equal justice is still within the prohibition of the
Constitution. - State of Bihar) held that when constitutionality of a provision is called in
question what is necessary to examine is that whether there exists a nexus between the basis
of classification and the object of the impugned provision under consideration.
D. Rule 4(3)(d)(III) introduced by Amendment in Examination Rules on 17/2/2020 is declared as
ultra vires and set aside. - Writ petitions are partly allowed to the extent indicated above.

Judgment :

SUJOY PAUL,J.

(1.) Few writ petitions of this batch of 49 petitions are filed assailing constitutionality of sub-sec. (4)
of Sec. 4 of Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade
Vargon Ke Liye Arakshan) Adhiniyam, 1994 (Adhiniyam) whereas rest of them are filed with a prayer
to declare Rule 4(3)(d) III of Amendment dtd. 17/2/2020 in Madhya Pradesh State Service
Examination Rules 2015 (Examination Rules) as ultra vires.

(2.) The admitted facts between the parties are that Madhya Pradesh Public Service Commission
(PSC) published an advertisement on 14/11/2019 for conducting State Service Examination 2019 for a
total 571 posts including the posts for reserved category. In furtherance thereof, the petitioners
submitted their candidature in prescribed form for appearing in the said examination. On 12/1/2020,
preliminary exam was conducted by P.S.C. Soon thereafter, the impugned amendment in the Rules
came into being by publishing it in the Official Gazette on 17/2/2020. The result of said examination
was declared on 21/12/2020 on the basis of amended Rules of 2020. Aggrieved, these batch of writ
petitions were filed.

(3.) In these petitions, the respondents were put to notice and in turn, they filed reply. After receiving
notices in the petitions, yet another amendment dtd. 20/12/2021 was published in the Official Gazette
on 20/12/2021 amending the said Examination Rules. On 31/12/2021 the PSC declared the result of
said examination (mains) and proceeded further to take interview of the candidates. Contentions of
petitioners:-

(4.) Shri Rameshwar Singh Thakur and Shri Vinayak Prasad, learned counsel for the petitioners while
arguing W.P. Nos. 419/2021, 807/2021, 1029/2021 1588/2021, 2482/2021, 2891/2021, 5594/2021,
14468/2021 and 1918/2022 urged that in these petitions, the petitioners have prayed for a declaration
that sub-sec. (4) of Sec. 4 Adhiniyam, and Rule 4(3)(d) III of Amendment dtd. 17/2/2020 in Madhya

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Pradesh State Examination Rules be declared as ultra virus Article 14, 15 and 16 of the Constitution as
well as against the aims and object of reservation policy.

(5.) Learned counsel for the petitioners in these batch of matters argued that sub-sec. (4) of Sec. 4 of
Adhiniyam provides that if a person belonging to any of the categories mentioned in sub-sec. (2) gets
selected on the basis of merit in an open competition with general candidates, he shall not be adjusted
against the vacancies reserved for such category under sub-sec. (2). It is urged that when 1994 Act
was introduced, no Rule like examination Rules of 2015 were framed for implementing the provisions
of the Adhiniyam. In this backdrop, a Division Bench of this Court in the case of Hemraj Rana Vs.
State of M.P. (2006) 3 MPHT 477 interpreted the word 'selected' and opined that it will apply only at
the time of final selection of candidates and not at the time of preliminary examination.

(6.) Thus, sub-sec. (4) of Sec. 4 became a hurdle for the reserved category candidates. This is well
settled that if a reserved category candidate received more or equal marks qua UR category candidate,
he will secure birth in UR category and he cannot be treated to be a reserve category candidate. The
respondents in preliminary examination and main examination are not implementing this settled
principle in view of the impugned amendment in Examination Rules dtd. 17/2/2020.

(7.) Shri Vinayak Shah, learned counsel for these petitioners placed further reliance on the order
passed by another Division Bench (Indore) in W.A. 1450 of 2018 (Madhya Pradesh Public Service
Commission Vs. Vishal Jain and others) decided on 1/2/2019 and urged that this order is solely based
on the previous judgment of Division Bench in Hemraj (supra) and the judgment of Supreme Court
reported in 2017 (12) SCC 680 (Deepa E.V. vs. Union of India and others). Judgment of Deepa E.V.
(supra) cannot be applied submits Shri Vinayak Prasad Shah, Advocate by contending that OBC
candidate therein had applied in OBC category by taking advantage of relaxation of age being a
reserved category candidate whereas in the instant cases, the petitioners have not taken any such
advantage of reserve category except relating to relaxation of fees which is permissible under the
Rules. It is further argued that when W.A. No. 1450/2018 was decided on 1/2/2019, the Admission
Rules of 2015 came into being. The attention of Division Bench was not drawn on para -7 of the
judgment of Hemraj (supra) and Admissions Rules. Therefore, the order of Division Bench in the case
of Vishal Jain (supra) is per incuriam.

(8.) It is common ground taken by all the petitioners that the selection process started with issuance of
advertisement on 14/11/2019. As per the Rules prevailing at that point of time, the respondents were
obliged to treat the reserve category candidates who have secured marks equal or more to an UR
candidate as UR candidate at all stages including preliminary and main examination. This procedure
laid down in the main Rules could not have been changed to the detriment of the petitioners after game
was started. In nutshell, it is argued that Rules of game cannot be permitted to be changed after
commencement of the game.

(9.) In support of these submissions, learned counsel for the petitioners have filed written
submissions. The written submission is also pressed in service by Shri Rameshwar Singh Thakur,
Advocate only to the extent indicated herein-above.

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(10.) Shri Vibhor Khandelwal, and Shri Akshat Pahadia, learned counsel appearing for petitioners in
W.P. Nos. 542/2021 and 1292/2021 urged that Rule 4(3)(d)III inserted by Amendment dtd. 17/2/2020
in Examination Rules has undergone a change in view of another amendment in the Rules w.e.f.
20/12/2021. In the amending notification, it is mentioned that 'in Rule 4 sub rule (3) for clause (a), a
new following clause shall be substituted. The law makers consciously used the word 'substituted'
submits Shri Vibhor Khandelwal, Advocate by placing reliance on a full bench decision of this Court
reported in 2017 (2) MPLJ 681 (Viva Highways Ltd Vs. Madhya Pradesh Road Development
Corporation Ltd). In the context the word 'substituted' is used, it is urged that the substituted provision
will relate back to the date Rules were enacted. Thus, entire selection needs to be conducted on the
basis of amended provision dtd. 20/12/2021. Lastly, it is strenuously contended that amendment
brought in the Rules on 20/12/2021 is in fact outcome of realization of mistake on the part of the
government. After having realized the mistake, for correcting the same amendment dtd. 20/12/2021 is
introduced. It is no more open to the government to apply the said amendment prospectively. Indeed, it
should be given effect to on the entire selection process.

(11.) Shri Aditya Sanghi, learned counsel for the petitioners borrowed the argument of Shri Vibhor
Khandelwal, Advocate and in addition urged that this Court on 14/12/2021 granted time to the State to
examine the necessity to amend the Rules. In turn, once Rules are amended by way of 'substitution' the
substituted provision will hold the field from the date Examination Rules became part of the statute
book.

(12.) Shri Sanghi, placed reliance on 2021 (4) SCC 542 (Saurav Yadav and others Vs. State of Uttar
Pradesh and others) and urged that the principle laid down in this case squarely covers the case in
hand. He also interpreted the judgment of Hemraj Rana, Vishal Jain (supra). 2005 (4) SCC 154
(Secretary, A.P. Public Service Commission Vs. B. Swapna And Others) is referred to contend that
norms of selection cannot be altered after commencement of selection process. He also relied on the
judgment of Rajasthan High Court in S.A.W. No.280/2019 (State of Rajasthan Vs. Surghan Singh).

(13.) Shri Nityanand Pandey, learned counsel appearing for the petitioner in W.P. No.4410/2022
adopted the argument of learned counsel for the petitioner advanced in W.P. No.6972/2022.

Government's Contentions:-

(14.) Shri Ashish Anand Bernard, learned Additional Advocate General submits that in view of
Division Bench judgment of this Court in Hemraj Rana (supra), no fault can be found in sub-sec. (4)
of Sec. 4 of the Adhiniyam. The Division Bench rightly interpreted the words 'gets selected' and
opined that it relates to the main selection and does not deal with preliminary exam or any other exam
taken in interlocutory stage. In Vishal Jain (supra) another Division Bench has followed the principle
laid down in Hemraj Rana (supra). On more than one occasion, Shri Bernard, learned Additional
Advocate General urged that it is a misconceived notion on the part of petitioners that the Government
has realized their mistake in bringing the impugned amendment on 17/2/2020 and subsequent
amendment dtd. 20/12/2021 is an outcome of such realization of mistake. Indeed, submits learned
Additional Advocate General on the strength of CMD/Chairman, Bharat Sanchar Nigam Lmt. and ors.

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vs. Mishri Lal and Ors (2011) 14 SCC 739 that the impugned Rules were brought into force in
exercise of power under proviso to Article 309 of the Constitution. Thus the Rules are legislative and
statutory in nature. The Rules were amended w.e.f. 20/12/2021 on the basis of source of power
constitutionally permissible and, therefore, the argument of petitioners regarding realization of mistake
by the State is devoid of substance. Heavy reliance is placed on the word 'omitted' in the amended
Rules dtd. 20/12/2021. He resisted the contention of Shri Khandelwal that the word 'substitution' will
make the rules retrospectively applicable.

(15.) The argument of learned counsel appearing for the State is that no doubt, initially in the
Examination Rules, 2015 there existed a specific provision which permits the respondents to treat a
Reserve Category Candidate as UR Candidate, if he/she has secured equal or more marks in the
examination qua UR Category Candidate. In order to explain the necessity for bringing the impugned
amendment dtd. 20/12/2021, learned Additional Advocate General urged that the Division Bench in
Hemraj Rana (supra) interpreted the word 'selected' appearing in subsec. (4) of Sec. 4 of Adhiniyam.
The judgment of Hemraj Rana (supra) was again considered in Vishal Jain (supra). The ratio of
Hemraj Rana was followed in Vishal Jain. By taking this Court to the entire judgment of Vishal Jain
(supra), it is urged that the initial Examination Rules of 2015 were not in tune with the dicta of Vishal
Jain (supra) which necessitated the Government to bring the amendment in the Examination Rules
w.e.f. 17/2/2020. This amendment is not introduced because of any realization of mistake by the
Government.

(16.) A nine Judges Bench of Supreme Court in Indra Sawhney and ors. vs. Union of India and ors.
reported in 1992 Suppl (3) SCC 217 laid down certain binding principles pursuant to which
Adhiniyam was brought into force. Consistent with the Adhiniyam which was interpreted in Hemraj
Rana (supra) and Vishal Jain (supra), impugned amendment dtd. 17/2/2020 was introduced.

(17.) Furthermore, it is argued that judgment of Supreme Court in Saurav Yadav and ors. vs. State of
Uttar Pradesh reported in 2021 (4) SCC 542 is relating to horizontal reservation whereas instant case
relates to vertical reservation. Judgment of Saurav Yadav (supra) is therefore inapplicable in the
instant case.

(18.) In absence of any manifest arbitrariness, interference of this Court is not warranted. Reliance is
placed on Cellular Operators Association of India and Ors. vs. Telecom Regulatory Authority of India
and Ors. reported in (2016) 7 SCC 703.

Other Contentions :

(19.) Shri Parag Tiwari, learned counsel for the Public Service Commission adopted the argument of
learned Additional Advocate General, whereas Shri Permanand Sahu appearing for respondent No.3 in
W.P. No.1588/2021 and W.P. No.2891/2021 contended that Article 338-B (9) of the Constitution of
India makes it obligatory for the Union and every State Government to consult the Commission on all
major policy matters affecting socially and educationally backward classes. While bringing aforesaid
amendments in the Examination Rules w.e.f. 17/2/2020 and 20/12/2021, the Commission was not at

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all consulted. On a specific query from the Bench, Shri Permanand Sahu submits that respondent No.3
is supporting the case of the present petitioners.

(20.) For the petitioner of W.P. No. 1918/2022, Shri Anshul Tiwari learned counsel for the proposed
intervenor appeared and argued that the intervenor is a General Category candidate. If petitioners
succeed, the entire selection process will be disturbed and therefore petitioners should have impleaded
all the UR category candidates as party respondents. In absence whereof, the petitions suffer from non-
joinder of necessary parties and deserve to be dismissed on this count alone. He referred to (2010) 12
SCC 204 (Public Service Commission, Uttranchal Vs. Mamta Bisht and others) for this purpose.

(21.) Shri Vinayak Shah in his rejoinder submissions urged that unless the principles laid down in
Indra Sawhney (supra) and Saurav Yadav (supra) are applied in toto at the stage of preliminary
examination and main examination, the constitutional mandate ingrained in Article 15 and 16 cannot
be translated into reality. Unless a reserve category candidate who has secured more or equal marks
qua UR category candidate is given birth in all stages including preliminary and main examination in
UR Category, he will not get actual benefits envisaged in aforesaid Articles as well as judgment of
Supreme Court in Indra Sawhney (supra).

(22.) Shri Vibhor Khandelwal in his rejoinder submission relied on a chart to show that last reserve
category candidate and UR category candidate have secured same marks. Saurav Yadav's judgment
shows that it is applicable to vertical reservation and not to the horizontal reservation.

(23.) No other point is pressed by learned counsel for the parties.

(24.) We have heard the parties at length and perused the record.

FINDINGS :-

(25.) Constitutionality of Sec. 4(4) of the Adhiniyam.

The petitioners have raised eyebrows on the expression 'get selected' used in this provision.
Sec. 4 (4) reads as under:

4. (4) If a person belonging to any of the categories mentioned in sub- sec. (2) gets selected
on the basis of merit in an open competition with general candidates, he shall not be adjusted against
the vacancies reserved for such category under sub-sec. (2).

(26.) A Division Bench of this Court in the case of Smt. Rajshri Tiwari Vs. State of M.P. 2006 (2)
MPLJ 121 opined that sub-sec. (4) of Sec. 4 of the Adhiniyam of 1994 is in consonance with the
interpretation of Sec. 16(4) of the Constitution given by the Supreme Court in the case of Indra
Sawhney (supra). In this backdrop, we are unable to declare sub-sec. (4) of Sec. 4 as unconstitutional.

(27.) The Apex Court in catena of judgments held that efforts should be made to uphold the
constitutionality of a provision and impugned provision can be declared as unconstitutional only when
it is absolutely necessary. It is apposite to refer the following judgments; AIR 1951 SC 41 (Chiranjit
Lal Choudhuri Vs. Union of India and others), 2013 (8) SCC 368 (Dharmendra Kirthal Vs. State of

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U.P and others), 2013 (1) SCC 745 (Namit Sharma Vs. Union of India) and 2011 (2) SCC 568 (Prafull
Goradia Vs Union of India).

(28.) The case of Hemraj Rana (supra) was decided on 17/5/2006. At that point of time, a different set
of Rules of 2001 were in vogue. In para-6 of the judgment of Hemraj Rana (supra), the Division
Bench has taken note of sub-sec. (4) of Adhiniyam as well as relevant Rules of 2001. Thereafter, in
para-7, it was recorded as under:-

'In absence of any specific provision either in the Adhiniyam of 1994 or the Rules of 2001
made there under, providing that the principle in Sub-sec. (4) of Sec. 4 of the Adhiniyam of 1994 will
equally apply to preliminary examinations conducted for the purpose of screening candidates for the
main examination, the MP PSC would be well within its discretion to decide as to what would be the
procedure which should be followed in the preliminary examination for screening candidates for the
main examination. So long as such procedure followed by the MP PSC is not contrary to Article 16(4)
of the Constitution, this Court cannot hold that the procedure followed by the MP PSC is ultra vires.'
(Emphasis Supplied)

(29.) At the cost of repetition, it is noteworthy that in para-4 of judgment of Hemraj Rana (supra), this
Court considered the word 'selected' as appears in Sub-sec. (4) of Sec. 4 of Adhiniyam whereas in
para-6, the Court considered Sub-sec. (4) of Sec. 4 of Adhiniyam in the light of Rules of 2001. This
Court gave a conscious finding in para-7 reproduced hereinabove, which shows that the provision of
Adhiniyam and Rules applicable in 2006 as such do not suggest that the principle desired to be made
applicable should be made applicable during preliminary examination. In absence of any specific
provision in the Rules, the Division Bench expressed its inability to apply the principle that a reserve
category candidate secured equal or more marks than UR category candidate will occupy a UR seat.

(30.) Pertinently, the subsequent events show that New Examination Rules, 2015 came into being. As
per these Rules, the State itself decided to apply the said principle in favour of such reserve category
candidates, who have secured equal or more marks than general category candidates in all levels of
selection including preliminary and main examination. This is trite that judgment of a Court must be
treated as a precedent for the principle which has been actually decided by it and not for something
which logically flows from it. [See:- AIR 1968 SC 647 (State of Orissa Vs. Sudhansu Sekhar Mishra
and others), AIR 1976 SC 1766 (Regional Manager and Anr vs Pawan Kumar Dubey), AIR 1987 SC
1073 (Ambica Quarry Works and Anr vs State Of Gujarat and Ors), (2006)1 SCC 368 (Union Of India
and another Vs. Major Bahadur Singh), (2007) 5 SCC 371 (Commissioner of Customs (Port) v.
Toyota Kirloskar Motor (P) Ltd.)]

(31.) This is equally settled that precedential value of a judgment depends upon the factual matrix of
the case as well as the statutory provision governing the field. [See:-Union of India v. Major Bahadur
Singh, (2006) 1 SCC 368, Padma Sundara Rao and others v. State of T.N. and others, (2002) 3 SCC
533, Ram Prasad Sarma v. Mani Kumar Subba, (2003) 1 SCC 289]

(32.) The judgment of the Courts should not be read as Euclid's Theorum. [See: (2003) 11 SCC 584

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(Ashwani Kumar Singh v. U.P. Public Service Commission and others), (2015) 10 SCC 161 (Indian
Performing Rights Society Ltd. v. Sanjay Dalia), (2016) 3 SCC 762 (Vishal N. Kalsaria v. Bank of
India)]. In this view of the matter, in our view, the judgment of Hemraj Rana (supra) was delivered in
the peculiar factual backdrop of that case by taking into account the statutory provisions/Rules
prevailing at that point of time. The introduction of Examination Rules of 2015 has changed the
scenario and a conjoint reading of para-7 of Hemraj Rana's judgment and unamended Examination
Rules of 2015 permits us to uphold the constitutionality of Sub-sec. (4) of Sec. 4 of Adhiniyam and
clarify that combined reading of Sub-sec. (4) of Sec. 4 with unamended Rules of 2015 makes it
obligatory for the respondents to apply the principle desired by the petitioner i.e. in all stages of
selection, the reserve category candidate received more or equal marks qua UR candidate are entitled
to secure a birth in UR category. Thus, we are unable to persuade ourselves that impugned provision
of Adhiniyam should be struck down being unconstitutional.

(33.) Constitutionality of Rule 4(3)(d)(III) of Examination Rules. 2015:-

As noticed, this amended Rule became part of statute book w.e.f. 17/2/2020. Before dealing
with this amended Rule, it is profitable to consider the unamended Rule, the impugned Rule amended
w.e.f. 17/2/2020 and another amendment dtd. 20/12/2021. The relevant provisions are reproduced
herein under in tabular form to examine the provisions in juxtaposition.
Unamended Rules 2015 Amendment 17.2.2020 Amendment 20.12.2021
4. Mode of preparation of (d) (I) Results of 4. In Rule 4 sub rule (3)
select list � Preliminary/Main for clause (a) the
(1) (a) (i) On the basis of marks Examination, the candidates following clause shall be
obtained in Preliminary shall be declared in the substituted, namely :-
Examination, candidates category mentioned as their (3) (a) (i) After the
numbering 15 times the category in their online interview, the merit list of
vacancies as advertised application form. the candidates shall be
category wise will be declared (II) Candidates of reserved prepared by the
successful for Main category ( Scheduled caste/ Commission on the basis
examination subject to the Scheduled Tribe ? Other of the total marks
condition that candidates have Banckwards Classes/ obtained by them in the
scored minimum passing marks Economically Weaker main examination and
as may be specified by the Section) who get selected like interview. The order of
Commission. In addition to general category cadidates merit of the candidates
this, all the other candidates without any relaxation shall securing equal marks
who get marks equal to �Cut not be adjusted against the shall be determined as per
posts reserved for those the criteria prescribed by
Off Marks� will also be
reserved categories. They the order of the
declared successful for the shall be adjusted against Commission.
main examination. vacancies of unreserved (ii) First of all, a list of
(ii) Firstly, a list of Candidates category. unreserved category
of unreserved category shall be (III) But above adjusment will (which includes
prepared. This list will include only be at the time of final Scheduled Castes,
the candidates selected on the selection, not at the time of Scheduled Tribes, Other
basis of the common merit preliminary/ main Backward Classes and
from Scheduled Castes, examination. Economically Weaker
Scheduled Tribes and Other Sections) shall be
Backward Classes, who have prepared. After this, those
not taken any candidates belonging to

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advantage/relaxation given to the reserved category

the concerned category. (Scheduled Castes,
(iii) Secondly, separate lists of Scheduled Tribes, Other
Scheduled Castes, Scheduled Backward Classes and
Tribes and Other Backward Economically Weaker
Classes will be prepared. Sections) included in the
unreserved category
(which also includes
Scheduled Castes,
Scheduled Tribes, Other
Backward Classes and
Economically Weaker
Sections) who have taken
the benefit of relaxations
from time to time, shall
be included in the
respective category by
separating them from the
list of unreserved
category.
(iii) Secondly, separate
lists of candidates
belonging to Scheduled
Castes, Scheduled Tribes
and Other Backward
Classes and Economically
Weaker Sections shall be
prepared.

A comparative reading of main Rule and two subsequent amendments above makes it clear
that as per main unamended Rule, the meritorious reserved category candidate was entitled to compete
with U.R. category candidates and get his position in Open/UR Category. By impugned amendment
dtd. 17/2/2020, this right was taken away by confining the benefit at the time of final selection only.
By subsequent amendment, dtd. 20/12/2021, the earlier position prevailing at the time of unamended
Rules was restored. Thus, impugned amendment became a hurdle for the meritorious reserved
category candidates to be treated as U.R./Open Category Candidate.

(34.) The impugned amendment dtd. 17/2/2020, as per the argument of Shri Bernard, learned
Additional Advocate General was necessitated in view of Division Bench order passed in the case of
Vishal Jain (supra). On a minute scrutiny, we do not find any merit in this contention that the
judgment of Vishal Jain (supra) can become a reason for amendment in the Rules with effect from
17/2/2020. A careful reading of order of Vishal Jain (supra) leaves no room for any doubt that this
matter was decided after commencement of Rules of 2015. The Court did not consider the impact of
the Rules, if read with Sub-sec. (4) of Sec. 4 of the Adhiniyam. In other words, Examination Rules of
2015 were not brought to the notice of the Division Bench in the case of Vishal Jain(supra). In absence
thereof, principle of Hemraj Rana's case was followed by the subsequent Bench. We find substance in
the argument of Shri Vinayak Shah, learned counsel for the petitioner that in absence of considering
the statutory Rules (Examination Rules of 2015), the judgment of Vishal Jain (supra) cannot become

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reason for introducing the impugned amendment. For yet another reason, we are unable to accept the
reason assigned for amendment w.e.f. 17/2/2020. The Apex Court in the case of Indra Sawhney
(supra) ruled that:-

'811. In this connection it is well to remember that the reservations under Article 16(4) do
not operate like a communal reservation. It may well happen that some members belonging to. say.
Scheduled Castes get selected in the open competition field on the basis of their own merit; they will
not be counted against the quota reserved for Scheduled Castes; they will not be counted against the
quota reserved for Scheduled Castes; they will be treated as open competition candidates.' [Emphasis
Supplied]

The ratio decidendi of Indra Sawhney (supra) is followed in R.K. Sabharwal v. State of
Punjab (1995) 2 SCC 745, Union of India and others v. Virpal Singh Chauhan and others (1995) 6
SCC 684 and recently in Saurav Yadav v. State of U.P., (2021) 4 SCC 542 it is held as under:

"I would conclude by saying that reservations, both vertical and horizontal, are method of
ensuring representation in public services. These are not to be seen as rigid "slots", where a candidate's
merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the
consequence would be, if the state's argument is accepted. Doing so, would result in a communal
reservation, where each social category is confined within the extent of their reservation, thus negating
merit. The open category is open to all, and the only condition for a candidate to be shown in it is
merit, regardless of whether reservation benefit of either type is available to her or him." (Emphasis
Supplied)

(35.) Needless to emphasize that law laid down by Apex Court in the case of Indra Sawhney (9
Judges Bench) is binding on all the Courts and Authorities throughout India. This binding judgment
was consistently followed by the Supreme Court in catena of judgments.

(36.) As pointed out by Shri Sanghi, the Rajasthan High Court also followed it in Special Appeal
(Writ) No.280/2019 (State of Rajasthan Vs. Surghan Singh) decided on 15/4/2019. The law laid down
in Indra Sawhney's case became law of land under Article 141 of the Constitution. The argument of
learned Additional Advocate General deserves to be rejected regarding necessity to bring the
impugned amendment because it runs contrary to the law laid down in Vishal Jain's case. In view of
this binding decision of 9 Judges Bench of Supreme Court, there was no occasion for the State to
introduce amendment in the Examination Rules on 17/2/2020. Moreso, when the judgment of Vishal
Jain (supra) does not help the respondents because in the said judgment, as noticed above, the Court
simply followed the previous judgment of Hemraj Rana (supra) and did not deal with the Examination
Rules of 2015, which were already brought into force by that time.

(37.) Validity of the impugned amendment dtd. 17/2/2020 after commencement of selection process :-

In catena of judgments, the Courts made it clear that selection process begins with issuance
of advertisement. See [(1990) 2 SCC 669 (A.P. Public Service Commission Hyderabad and another
Vs. B. Sarat Chandra and others), 2020 SCC Online M.P. 2975 (Ramkhiladi Sharma Vs. National

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Health Mission) and 2012 SCC Online M.P. 10635 (Rachna Dixit Vs. State of M.P. and others)].
Indisputably, the advertisement was issued by the Public Service Commission on 14/11/2019 and
selection/recruitment process set on motion from that date itself. The impugned amendment was
issued on 17/2/2020 in the midst of the selection process.

(38.) Pausing here for a moment, it is apposite to remember that as per Unamended Examination
Rules, the reserved category candidates were entitled to secure a birth in U.R. category, if they have
received same or more marks than a U.R. candidate. This norm/rule of game was admittedly changed
to the detriment of petitioners by bringing the impugned amendment.

(39.) The Apex Court in (Y.V. Rangaiah Vs. J. Sreenivasa Rao) (1983) 3 SCC 284 held as under :-

"But the question is of filling the vacancies that occurred prior to the amended rules. We
have not the slightest doubt that the posts which fell vacant prior to the amended rules would be
governed by the old rules and not by the new rules."

(40.) In State of Bihar and others Vs. Mithilesh Kumar (2010) 13 SCC 467 the court opined that:-

"The Respondent had been selected for recommendation to be appointed as Assistant

Instructor in accordance with the existing norms. Before he could be appointed or even considered for
appointment, the norms of recruitment were altered to the prejudice of the Respondent. The question is
whether those altered norms will apply to the Respondent.

The decisions which have been cited on behalf of the Respondent have clearly explained
the law with regard to the applicability of the Rules which are amended and/or altered during the
selection process. They all say in one voice that the norms or Rules as existing on the date when the
process of selection begins will control such selection and any alteration to such norms would not
affect the continuing process, unless specifically the same were given retrospective effect" [Emphasis
Supplied]

(41.) ***

(42.) Since the petitioners have obtained equal or more marks than last U.R. category candidates, they
were having a valuable right to secure a position in U.R. category. This right of consideration and
occupying a slot in U.R. category is sought to be taken away by bringing the impugned amendment,
which in our opinion is arbitrary, impermissible and irrational.

(43.) While constitutional principles applied in England only as safeguards against executive
usurpation and tyranny, USA and India they became bulwarks also against unconstitutional legislation.
The essential democratic rights of the people were sought to be secured in the United States "not by
law paramount to prerogative but by constitution paramount to laws". The absolute reign of law which
this constitutional principle was designed to establish became effectivewhen Chief Justice Marshall
propounded the doctrine of judicial review in Marbury v. Madison, 2 L.Ed. 60 (1803). It was argued
by Daniel Webster in Dartmouth College v. Woodward, 4 Wheaton 518 (579): 4 L Edn. 629 (645) that
everything which passes under the form of enactment is not to be considered the law of the land. There

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is a familiar ring of this in Justice Krishna Iyer's dictum in Maneka Gandhi v. Union of India, AIR
1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621 that law is not any enacted piece.

Supreme Court of America way back in (1885) 118 U.S. 356 (I) (Yick Wo Vs. Peter
Howking) held as under :-

"though a law be fair on its face and impartial in operation, yet, if it is administered by
public authority with an evil eye and an unequal hand so as practically to make illegal discrimination
between persons in similar circumstances materially to their right, the denial of equal justice is still
within the prohibition of the Constitution. " (Emphasis supplied)

(44.) A Constitution Bench of Supreme Court in AIR 1955 SC 191 (Budhan Choudhary and others
Vs. State of Bihar) held that when constitutionality of a provision is called in question what is
necessary to examine is that whether there exists a nexus between the basis of classification and the
object of the impugned provision under consideration. Article 14 condemns discrimination not only by
a substantive law but also by a law of procedure. This judgment is consistently followed by the
Supreme Court in Hiralal P. Harsora Vs. Kusum Narottamdas Harora (2016) 10 SCC 165, Karnataka
Live Band Restaurants Assn. vs. State of Karnataka (2018) 4 SCC 372, Lok Prahari vs. State of U.P.
(2018) 6 SCC 1, CRPF vs. Janardan Singh (2018) 7 SCC 656, Navtej Singh Johar vs. Union of India
(2018) 10 SCC 1 and Rana Nahid vs. Sahidul Haq Chisti (2020) 7 SCC 657.

(45.) The respondents could not assign any justifiable reason or establish any rationale object/purpose
for bringing impugned amendment dtd. 17/2/2020. Similarly, they could not establish the nexus
between the object sought to be achieved and the impugned amendment. Thus, the impugned
amendment dtd. 17/2/2020 cannot be given a stamp of approval. Since, it runs contrary to the binding
precedent of Indra Sawhney (supra) consistently followed till Saurav Yadav (supra), the impugned
amendment cannot sustain judicial scrutiny. By no stretch of imagination, withstanding a Nine Judges
Bench judgment of Supreme Court in Indra Sawhney (supra), it was open to the Government to amend
the Examination Rules contrary to the principles laid down in Indra Sawhney (supra) under the garb of
order of Division Bench of this court in Vishal Jain (supra). Moreso when in Vishal Jain (supra), the
Examination Rules of 2015 were not brought to the notice of this Court.

We are of the considered view that the principles laid down by the Supreme Court in Indra
Sawhney (supra) can be translated into reality only when reserved category candidate secured equal or
more marks with U.R. category candidate is given birth in U.R. category in all stages of selection
including preliminary and the main examination. Any other interpretation will defeat the purpose and
the constitutional scheme flowing from Article 14 and 16 of the Constitution of the India. There is no
justifiable reason for depriving a meritorious reserved category candidate who has competed with UR
category candidate and secured same or more marks than him from being treated as U.R. candidate.

The matter may be examined through a different magnifying glass.

As per the judgment of Indra Sawhney (supra), the reserve category candidate equal / more
meritorious qua UR category candidate deserves a birth in UR category. Thus, such reserved category

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meritorious candidate merges in the class of UR category because of his own merits. Depriving such
candidate from the fruits of securing a birth in UR category results into dividing a homogeneous class
of meritorious candidates. The Artificial classification which is outcome of impugned rule is arbitrary,
discriminatory and violative of equality clause enshrined in Article 14 of the Constitution. The
meritorious reserve category candidates cannot be put to a comparative disadvantageous position
because of their birth mark if they are otherwise equal or more meritorious than the last UR category
candidate. The impugned Amended Rule, for no valid reasons deprives such reserved category
candidate and, therefore, the impugned Rule deserves to be declared as ultra vires. We accordingly
declare Rule 4 (3) (d) (III) of the Amended Rules as unconstitutional.

(46.) We will be failing in our duty if argument of Shri Vibhore Khandelwal and Shri Akshat Pahariya
is not considered based on the use of word 'substituted' in the latest amendment dtd. 20/12/2021. The
argument is based on a Full Bench decision of this Court in Viva Highways (supra). We are only
inclined to observe that once we have formed an opinion that impugned amendment dtd. 17/2/2020 is
ultravires, this argument relating to 'substitution' pales into insignificance. Thus, we need not to go into
this aspect any further. Shri Anshul Tiwari, learned counsel for the proposed intervener opposed the
petition on the strength of Public Service Commission Uttaranchal Vs. Mamta Bisht and others (2010)
12 SCC 204. This judgment has no application in the instant case for the simple reason that these writ
petitions are filed when selection process was not over and pertinently, same is still not over. No
candidate has been finally selected and no right accrued in favour of any candidate. Thus, it was not
necessary to implead the candidates who are going to be adversely affected by the outcome of this
judgment.

The matter may be viewed from another angle. The Apex Court in GM, South Central Rly.
v. A.V.R. Siddhantti, (1974) 4 SCC 335, Surinder Shukla v. Union of India, (2008) 2 SCC 649 held
that when constitutional validity of a policy decision is impeached, it is not necessary to implead the
affected parties. Thus, objection of Shri Tiwari deserves to be rejected.

(47.) In view of foregoing analysis, the constitutionality of Sub-sec. (4) of Sec. 4 of Madhya Pradesh
Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan)
Adhiniyam, 1994 is upheld. Rule 4(3)(d)(III) introduced by Amendment in Examination Rules on
17/2/2020 is declared as ultra vires and set aside. Resultantly, the recruitment process must be
conducted and completed in consonance with unamended Examination Rules of 2015.

(48.) Writ petitions are partly allowed to the extent indicated above. No order as to costs.

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