JUDGMENT 1. - These four writ petitions relate to the challenge to the order of the Rajasthan Public Service Commission rejecting the candidature for Rajasthan State & Allied Services, the Rajasthan State and Subordinate Services Direct Recruitment by combined competitive examinations which were held in the year 1981 in pursuance to the advertisement issued in 1980. 2. All the four petitioners are departmental candidates, who applied for their selection in pursuance of the Notification of 1980, Annexurt-1. The examinations were to be held in December 1981 in pursuance of this Notification. The petitioners applied for them and then appeared in the examinations. 3. It is not in dispute that all the four candidates secured more than 40% marks in the examination. However, they were not called for interviews and were declared unqualified for interviews. The petitioners have challenged this decision of the Rajasthan Public Service Commission on the ground that the departmental candidates, who obtained 40% marks are eligible for being called for interviews and if thereafter, they obtained 50% marks in aggregate as per rule 13 of the above Rules and 35 marks in viva-voce test, they can be selected for R.A.S. and R.P.S. Thus the candidates who get 45% marks in aggregate can be selected, for other allied services. 4. The petitioners' case further is that so far as the candidates who are already serving in the department are concerned their reservation of 7% vacancies as per the Proviso to Rule 4 is available. Proviso to Rule 4 reads as under : 4. Combined Competitive Examination for State Services- (1) Notwithstanding anything contained in any rule governing direct recruitment through the agency of the Commission to the post in State Services mentioned in Schedule I. direct recruitment to such post shall be by a combined competitive examination to be conducted by the Commission in accordance with these rules: Provided that 7% of the available vacancies in the State Services to be filled in by direct recruitment shall subject to the provisions of sub-rule (2), he reserved for candidates who are non-gazetted employees of the Government, Panchayat Samitis Zila Parishads. The above reservation shall be determined in accordance with the roster prescribe, by the Commission." It is further provided in sub-rule (2) of Rule (4) that in, filling the vacancies so reserved, candidates who are "employees" shall be eligible for appointment in the order in which their names appear in the list irrespective of their relative marks as compared with other candidates. It further provides that if a sufficient number of candidates who are employees are not available for filling all the vacancies so reserved, the remaining vacancies shall be filled by appointment by other candidates in the list. 5. Mr. Asopa's contention is that in view of the above, all the four petitioners were entitled to be called for interviews and then and only their merits could have been considered according to rule 15 according to the reservation contained in rule 4 which has not been done in these cases. 6. The respondents' contention is that though the petitioner: obtained minimum 40% marks in written test and they are departmental candidates yet the Commission was competent to prescribe that only those who obtained 50% marks were eligible for being called for interviews and since all the foul candidates (petitioners) failed to get 50% marks in the written test. they were declared ineligible or only qualified or not qualified for being called in interviews. 7. The crucial question for adjudication before this court if whether the Rajasthan Public Service Commission was competent to fix criteria of obtaining 50% marks in the written test even for those who were departmental employees and who fall in the reserved quota and for whom 7% reservation has been made in Rule 4. 8. Mr. Khan, learned Government Advocate submits that the Public Service Commission has got general power under Article 321 of the Constitution and further even in Rule 13 of the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1962, there is no bar if the minimum 50% marks is fixed for calling the candidates for interviews. Mr. Khan submits that this has to be done because when there are large number of candidates then some criteria is to be fixed for calling only few candidates as in the very nature of things the Public Service Commission cannot sit for such a long time for interviews. Mr. Khan submits that this has to be done because when there are large number of candidates then some criteria is to be fixed for calling only few candidates as in the very nature of things the Public Service Commission cannot sit for such a long time for interviews. Article 321 of the Constitution reads as under: " Power to extend functions of Public Service Commission. An act made by Parliament or, as the case may be, the Legislature of a State may provide for the exercise of additional functions by the Union Public Service Commission or the State Public Service Commission as respects the services of the Union or the State and also as respects of the services of any local authority or other body corporate constituted by law or of any public institution. Sub-Section (2) of Article 320 of the Constitution of India mentions the duty of the Union Public Service Commission to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required. Sub-clause (3) of Article 320 of the Constitution requires that the Union Public Service Commission and the State Public Service Commission, as the case may be, shall be consulted and sub-clause (a) of clause (3) mentions that methods of recruitment to civil services must be decided by this consultation. Article 321 provides that an Act made or the Legislature of the Parliament, as the case may be, of a State may provide for the exercise of additional functions by the U. P. S. C. or the State Public Service Commission in respect of the Services. It would thus be seen that the Rajasthan Public Service Commission is required to be consulted and further it is the duty of the R.P.S C. to conduct examinations for appointment to the services of the Union and the State respectively. 9. The entire controversy is to be adjudicated on the basis of interpretation, which is to be put to rule 13 of the Rules. Rule 13 reads as under:- "Personality and viva voce examination- Candidates who have obtained a minimum of 35% marks in each of the compulsory subjects and a minimum of 40% marks in the aggregate, for the written test shall be considered to have obtained qualifying marks at the examinations. Rule 13 reads as under:- "Personality and viva voce examination- Candidates who have obtained a minimum of 35% marks in each of the compulsory subjects and a minimum of 40% marks in the aggregate, for the written test shall be considered to have obtained qualifying marks at the examinations. The Commission may in its discretion award grace marks upto one in each of compulsory papers and upto three in the aggregate." 10. It is to be noticed that by an amendment of 2nd March, 1978 the earlier sentence which permitted those candidates who have obtained qualifying marks for interview was substituted and by this amendment it has been provided that the candidates who obtain such qualifying minimum marks in the written examinations as may be fixed, shall be summoned for interview. This amendment is very significant and it provides the clue to the mind of the Legislature. 11. It is obvious that normally the candidates, who obtained minimum 30% marks in each of compulsory subjects and minimum 40% marks in aggregate in the written test are to be treated the candidates who have obtained qualifying marks at the examination. But obtaining of qualifying marks in the examination as mentioned in first sentence of rule 13 has been further clarified by this amendment, which says that in each the selection Commission will have discretion to fix the minimum qualifying marks for being eligible to be summoned for interview. The object of this amendment is not far to seek. Mostly, whenever the selections or appointments by fresh recruitment or promotions are to be made a large number of candidates appear in the examinations but the ratio between the candidates, who appear in the examination and the persons who are to be called for interview is to be fixed as it is practically impossible for the Commission to call all persons who get 40% marks in aggregate and 35% marks in each compulsory subjects. The rule making authority, therefore. thought it proper to put a rider over it and gave a discretion to the Commission to apply its mind and then depending upon the number of candidates decide how the number of candidates can be curia led. With this object the requirement of 40% marks in aggregate and 30% marks in each compulsory subjects is made subject to the rider of the Commission on discretionary fixing of minimum marks for qualifying for interview. With this object the requirement of 40% marks in aggregate and 30% marks in each compulsory subjects is made subject to the rider of the Commission on discretionary fixing of minimum marks for qualifying for interview. In these circumstances, if the Commission has fixed 50% marks for making the candidates eligible for appearing in the interview as argued by Mr. Khan, it cannot be said beyond its power or in violation of Rule 13. Contrary to it, it is in consonance with the amended provisions of rule 13 as indicated above. 12. Mr. Asopa then submitted that the discretion granted to the Commission in this case is unfettered, arbitrary, naked and therefore, is violative of Article 14 of the Constitution of India. The scheme of these rules clearly go to show that the discretion has been granted to the Rajasthan Public Service Commission members who have got constitutional status and under Article 320 of the Constitution. who are supposed to provide guidance for appointment in each State. Moreover, the entire scheme of this Rule shows that the discretion may be used in such a manner that if the number is too much the same is eliminated for interview and reasonable fair number is called for the same. 13. Mr. Asopa's contention was that the Commission has not placed before this Court what was the percentage fixed in this rule and further the number of candidates who happened to be covered by Rule 4, was not so much that it was necessary to fix such qualifying marks again. 14. Learned Government Advocate placed before this Court the proceedings of the Commission dated 1.6.1981. It reveals the following : (a) 50% marks or above i.e. 400 marks or above were fixed by the Commission as minimum qualifying marks for eligibility of a candidate for being called for interview. (b) There were 14 non-gazetted employees and 285 general candidates; in all 299 candidates, who qualified for viva-voce test, (c) For Scheduled Caste and Scheduled Tribe candidates 40% marks or above i. e. 320 marks were fixed as the minimum for being called for interview. It was pointed out by the respondents that there were 6 seats for non-gazetted employees under rule 4 and only 6 were called because other 8 did not fulfil the requisite qualifying criteria of having obtained 50% minimum marks. 15. It was pointed out by the respondents that there were 6 seats for non-gazetted employees under rule 4 and only 6 were called because other 8 did not fulfil the requisite qualifying criteria of having obtained 50% minimum marks. 15. It was then pointed that out of these 14, 4 were found to be general candidates as they were not Government employees, although they have mentioned wrongly that they were Government employees. In this view of the matter in all 10 candidates remained Government employees, out of which 6 were called on these posts of non-gazetted employees. 16. The contention of the petitioners is that while fixing the minimum marks for being called for interview, the Commission should have considered the number of candidates available in proportion to the number of posts because the qualifying marks fixed by the Commission in its discretion is only meant to reduce the number of such candidates so that the Commission can manage interviews. Since the number of posts was 6 and the candidates available for interview on the basis of statutory qualifying marks of 40% of aggregate were only 10, there was no occasion to fix higher marks of 50% as was done by the Commission and in doing so the intention and object of Rule 13 was not kept in view. 17. The Commission's reply is that when minimum marks are fixed in the discretion under rule 13, then the non gazetted employees are not considered as separate class for its fixation because it does not constitute any class and cannot enjoy the reservation like scheduled caste and scheduled tribe. Therefore, their case cannot be considered on that high pedestal with that of scheduled caste and scheduled tribe. 18. I have carefully considered the rival contentions of the learned counsel for the parties on this crucial aspect of the case. 19. It is true that unlike the scheduled caste and scheduled tribe candidates, for the non-gazetted employees 7% reservation has been made under rule 4, but they do not enjoy that protection as such. It is also true that under rule 15, a separate provision has been made under clause (2) to recommend those scheduled caste and scheduled tribe candidates also even though they fail to obtain minimum marks n vivavoce or aggregate marks under proviso (1) of Sub-Rule (I) of Rule 15. 20. It is also true that under rule 15, a separate provision has been made under clause (2) to recommend those scheduled caste and scheduled tribe candidates also even though they fail to obtain minimum marks n vivavoce or aggregate marks under proviso (1) of Sub-Rule (I) of Rule 15. 20. However, it is difficult to appreciate why the commission could not consider the fixation of separate minimum marks for calling them for interviews, so far as the non-gazetted employees are concerned. Admittedly the number of candidates of non-gazetted employees for 6 posts was only 10 and therefore, there was no occasion to fix more marks than the minimum fixed in the rules itself, which was 40%. 21. The amendment introduced in 1978 giving powers to the Commission to fix qualifying marks for calling for interview is meant only to reduce the number of candidates when the number is too much, e.g. in the general seats the number of candidates which were to be called for interview was fixed or was near about 1:3.50 or so. This was the intention so that the interviews are not prolonged for a long time. But it is difficult to appreciate why when there were 6 seats of non-gazetted employees reserved tinder rule 4, all 10 could not be called for interview if they obtained 40% marks in aggregate and 30% marks in each compulsory subjects. It has not been argued that any of the 4 petitioners before this Court could not obtain 4 % marks in aggregate and 30% marks in compulsory subjects and therefore, they were eligible for being called for interview. 22. The result of the above discussion is that all the four writ petitions deserve to be accepted. in view of the fact that there are 10 candidates in non- gazetted employees quota under rule 4, the result will have to be declared after interviewing all the 10 candidates, 6 candidates have already been interviewed according to the criteria of the Commission and one was interviewed on account of the direction of this Court. Now the Commission would interview remaining 3 candidates and thereafter declare the result. 23. Consequently, all the four writ petitions are accepted. Two months time is allowed to the respondents for declaring the result after holding interviews of 3 petitioners, who have not been interviewed so far. 24. Now the Commission would interview remaining 3 candidates and thereafter declare the result. 23. Consequently, all the four writ petitions are accepted. Two months time is allowed to the respondents for declaring the result after holding interviews of 3 petitioners, who have not been interviewed so far. 24. In the facts and circumstances of the case there would be no order as to cost.Petitions accepted. *******