ORDER By the Court Petitioners are member of Scheduled Caste category and they are working on the post of Patwari in Tonk District. Petitioner No.1 stood at S.No.69 and petitioner No.2 stood at S.No.75 in the seniority list published by respondent no.2 on 21.12.2012. Grievance of the petitioners is that the petitioners have not been promoted to the post of Land Record Inspector, whereas their juniors have been given promotion vide order dated 02.01.2013. The petitioners do not have any adverse remarks nor any departmental enquiry pending against them. There is no stigma in their service record nor has any penalty been awarded to them during relevant period. It is contended that it is a case of clear discrimination with the petitioners whereby their juniors have been given promotion on the post of Land Record Inspector depriving them from their right. Learned counsel for the petitioner in this connection invited attention of the court towards the seniority list dated 01.04.2012, wherein the petitioner no.1 Sohan Lal Verma stands at Serial No.69 and petitioner no.2 Amrit Lal Bairwa stands at Serial No.75. Learned counsel further invited attention of the court towards the promotion order dated 02.01.2013 (Annexure-2), in which all the candidates from Serial No.34 onwards upto Serial No.55 are junior to the petitioners having been shown from Serial no.80 onwards upto Serial No.119. It is argued that the criteria for promotion is seniority-cum-merit and therefore seniority in any case could not be given completely go by and has to be adhered to while making promotions. The respondents in para 4 of the reply to the writ petition stated that in the year 2012-13 there were 308 posts of Land Record Inspector. Out of those, 62 posts were to be filled in through direct recruitment and 246 posts were to be filled in on the basis of recommendations of the departmental promotion committee. Out of 246 posts, 178 posts were meant for general category, 39 posts for schedule caste category and 29 posts of scheduled tribe category. For the year 2012-13, which is the year in question, there were only 10 seats vacant in the scheduled caste category. Out of 246 posts, 178 posts were meant for general category, 39 posts for schedule caste category and 29 posts of scheduled tribe category. For the year 2012-13, which is the year in question, there were only 10 seats vacant in the scheduled caste category. The tenth Schedule Caste candidate promoted in that year came at serial no.48 in the general seniority list of Ajmer division, while name of petitioners came at Serial No.69 and 75 in the seniority list, who stand at serial no.20 and 23 in the merit of Scheduled Caste category and thus they are not entitled to promotion against the vacancies of the year 2012-13. Learned Additional Government Counsel appearing for the respondents Department, has not disputed that many candidates junior to the petitioners have been promoted prior to the petitioners. I have heard learned counsel for the parties and perused the material on record. The method adopted by the respondents in considering the case of the petitioners for promotion is wholly illegal and arbitrary. Even if only 10 posts were reserved for the candidates belonging to Schedule Caste category in the year 2012-13, there was no reason why cases of the petitioners could not be considered against unreserved posts, if they were entitled to be considered there against on the basis of their seniority. The controversy raised in this case has been settled by the Constitution Bench of Hon'ble Supreme Court in Indra Sawhney Vs. Union of India reported in AIR 1993 SC 477 . In para no. 811 of the said judgment, their Lordships held as under :- “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 filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” The Apex Court following the ratio of Indra Sawhney reiterated the same law in para no.4 of its judgment in R.K. Sabharwal Vs. State of Punjab (1995) 2 SCC 745 in the following terms :- “When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can complete for the non-reserve 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. Article 16(4) of the Constitution of India permits the State government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise make the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.” This very view was later reiterated by Hon'ble Supreme Court in Ritesh R. Sah Vs. Dr. Y.L. Yamul reported in AIR 1996 SC 1378 . In para no.17 of the judgment, their Lordships held as under :- “In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have bee kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved category candidate.” Yet another judgment of the Hon'ble Supreme Court in Yoganand Vishwasrao Patil Vs. State of Maharastra & Ors reported in (2005) 12 SCC 311 reiterated the very same position of law in the following terms :- “8.The legal position has been clarified in Ritesh R.Sah that a student, who is entitled to be admitted on the basis of merit, though belonging to reserved category, cannot be considered to be admitted in seats reserved for reserved category but, at the same time, provision should be made that it will not work out tot he disadvantage of such candidate and he may not be placed at a more disadvantageous position than the less meritorious reserved category candidate. It was further held that while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation, he will be deemed to have been admitted as an open category candidate. In fairness to the respondent State, it is not being contended before us that because the rule has not been framed, the State government is not required to implement the judgment in Ritesh R.Sah in letter and spirit. In fact, in purported implementation of the decision of this Court, the Director of Medical Education and Research, Mumbai, by communication dated 31.3.2005 sent to its learned advocate i.e. Standing Counsel, has stated that the directions of this Court are being complied with in letter and spirit by the competent authority while making admission to the postgraduate courses.” Their Lordships of the Hon'ble Supreme Court in Union of India & Anr. Vs. Virpal Singh Chauhan reported in (1995) 6 SCC 64 held that “while determining the number of posts reserved for the Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected on the rule of merit and not by virtue of rule of reservation shall not be counted as reserved category candidates”. The criteria for promotion being seniority-cum-merit, in view of law noticed above, the respondents were/are required to consider the case of the petitioners against the posts meant for unreserved category consistent with the provisions of the Rules. As held by their Lordships of the Hon'ble Supreme Court in Indra Sawhney (supra) “reservations under Article 16 (4) do not operate like a communal reservation. As held by their Lordships of the Hon'ble Supreme Court in Indra Sawhney (supra) “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 filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” The Supreme Court in the case of R.K. Sabharwal (supra) reiterated the same proposition of law wherein it held that “the reserve category candidates can compete for the non-reserved 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.” Critical analysis of the law referred so discussed would show the underlying philosophy of reservation made in favour of SC, ST and OBC with reference to Article 15(4) and 16(4) of the Constitution of India. These provisions confer certain benefits on the persons belonging to these categories which are not in substitution of any other right, which may be otherwise available to them as citizens of country. Benefit of reservation does not substitute or supplant any other right of a person belonging to SC, ST and OBC. Such benefit would be in addition to an already existing right including the fundamental right of equality. If any scheme of reservation or the procedure evolved with a view to giving effect to such scheme, is made to depend upon the condition of truncating the fundamental or any other right of an individual, such scheme of reservation would be contrary to the constitutional provisions and the law, to the extent it curtails fundamental right or any other right of a person belonging to such category would be liable to be declared illegal. Reserving certain posts for different groups of the community in the first instance means that these posts are meant for members belonging to such specified group. This is an additional benefit conferred on them. On account of such additional benefit however they are not precluded from claiming ordinary benefits otherwise available to them. Members belonging to SC, ST and OBC for whom reservation of posts is made are not reserved for these posts although its converse is true. They cannot be asked to occupy only reserved posts. On account of such additional benefit however they are not precluded from claiming ordinary benefits otherwise available to them. Members belonging to SC, ST and OBC for whom reservation of posts is made are not reserved for these posts although its converse is true. They cannot be asked to occupy only reserved posts. They would be free to occupy any posts including unserved posts. However, the requirement of law is that while claiming appointment against unserved posts, they should prove their merit like any other citizen, who is not entitled to the benefit of reservation. No provision of law whether substantive or procedural, can be so interpreted as to run country to this basic tenet of the Constitution of India. What are often described as general posts, to borrow the expression used by their Lordships in Indra Sawhney, were in fact “in the open competition filed.” The Supreme Court referred them to “non-reserved posts”. They can also be called as unreserved posts. Examined in the light of the settled proposition of law as discussed above, it must be held that the respondents have misapplied the law of reservation. Petitioners had the right to be considered for promotion against unreserved posts. They cannot confine the right of the candidates of Scheduled Caste category of consideration for promotion on the basis of seniority-cum-merit only against the posts reserved for Scheduled Caste. Right to consideration for promotion cannot be denied to petitioners only because the vacancies meant for their category stood exhausted or that no vacancy in their category (SC) was available. Such a procedure negates their fundamental right to consideration as envisaged in Articles 14 and 16 of the Constitution of India. Upshot of the above discussion is that action of the respondents in not considering candidature of the petitioners for promotion against the posts of unreserved category, is declared illegal and unconstitutional. In the result, the writ petition is allowed. Respondents are directed to consider the case of the petitioners for promotion as per their seniority and if found suitable, the respondents to promote them immediately from the date their juniors were given promotion. Compliance be made within three months from the date a copy of this judgment is produced before the respondents. This also disposes of stay application.