JUDGMENT : 1. This writ petition has been filed by Ashish Sharma challenging validity of Rule 11(1) and proviso (2) of Rule 20(1) of the Rajasthan State and Subordinate Service (Direct Recruitment Combined Competitive Examination) Rules, 1999. It is prayed that the action of the respondents in not permitting the petitioner to change his preference by opting Rajasthan Police Service as second choice may be declared arbitrary and illegal, and the respondents be directed to provide him chance to change his option and consider allotting him Rajasthan Police Service in the selection process initiated pursuant to advertisement dated 28.04.2016. 2. According to the petitioner, he possesses the Degree of Master of Technology in Mathematics and Computing under Integrated Master Degree Programme from Indian Institute of Technology, Banaras Hindu University in the year 2013. The Rajasthan Public Service Commission, Ajmer, (for short, ‘the respondent RPSC’) issued an advertisement for appointment on 334 posts of the State Services and 369 posts of Subordinate Services under the Rajasthan State and Subordinate Services Combined Competitive (Main) Examination, 2016. The petitioner applied for appointment in response to the aforesaid advertisement by submitting online application form. He qualified the preliminary examination and thereafter the mains examination and was eventually called for interview. However, prior to interview, the respondent RPSC asked the petitioner to fill up the preference for the State Services and Subordinate Services. He submitted his preferences under the impression that he would be given one more opportunity to resubmit his preference after declaration of final result because as per Rule 17 of the Rajasthan State and Subordinate Service (Direct Recruitment Combined Competitive Examination) Rules, 1999 (for short, ‘the Rules of 1999’), the respondent RPSC is required to prepare a list of candidates in order of aggregate marks finally awarded to each candidates. It is at that stage that the position would be more clear for him to choose his option for the preference for the services. Since the petitioner was unaware about his position in the merit list, he could not correctly submit his preference at the time of submitting his preference. The petitioner opted for Rajasthan Administrative Service as preference no.1, Rajasthan Police Service as preference no.16, Rajasthan Accounts Service as preference no.2 etc. The respondent RPSC prepared the select list on 17.10.2017 in order of merit and forwarded the same to the Government for appointment along-with their service preference. The petitioner opted for Rajasthan Administrative Service as preference no.1, Rajasthan Police Service as preference no.16, Rajasthan Accounts Service as preference no.2 etc. The respondent RPSC prepared the select list on 17.10.2017 in order of merit and forwarded the same to the Government for appointment along-with their service preference. Therein, the petitioner secured 34th position. At this stage, the petitioner learnt that he had chances to get into the Rajasthan Police Services, which was better than his earlier choice. Since the petitioner did not fill it as his second preference, there is possibility that he may not be considered for the Rajasthan Police Services. 3. Mr. Vigyan Shah, learned counsel for the petitioner, submitted that the respondents in the advertisement dated 28.04.2016 notified to fill up the posts of different 30 services, out of which 17 posts were State services and 13 were subordinate services. The State Services included the posts of Rajasthan Administrative Services, Rajasthan Police Services, Rajasthan Accounts Services, Rajasthan Jail Services, Rajasthan Industries Services, Rajasthan Cooperative Services, Rajasthan Devsthan Services etc. Learned counsel for the petitioner submitted that the respondents were required to provide one more opportunity to the petitioner to resubmit/change the preference for the post after declaration of the final result, so that the petitioner could exercise his discretion in the best possible manner. The petitioner was compelled to fill the preference prior to the interview. It was not made clear that this was the final opportunity to fill it. Since the petitioner was not apprised of the fact that this was the final opportunity prior to the interview, he could not fill the appropriate preference by exercising his discretion for proper preferences. The petitioner approached the office of the respondent RPSC to submit his fresh preference/option while preferring Rajasthan Police Services as the second preference. At this stage, the petitioner was informed that the option exercised by the petitioner prior to interview was final and that could not be altered. The petitioner submitted representation to the respondent RPSC requesting such permission, which however was rejected. The petitioner also approached the respondent State in this respect but that too of was no avail. 4. Mr. At this stage, the petitioner was informed that the option exercised by the petitioner prior to interview was final and that could not be altered. The petitioner submitted representation to the respondent RPSC requesting such permission, which however was rejected. The petitioner also approached the respondent State in this respect but that too of was no avail. 4. Mr. Vigyan Shah, learned counsel for the petitioner, argued that the selection in combined competitive service examination is based upon marks secured in the main examination, which has weightage of 800 marks and marks secured in the interview, which has weightage of 100 marks. The respondent RPSC however obtained the preference before the final assessment of the merit, i.e., after the result of the mains examination but before the interview. At that time the marks of the mains examination are not disclosed and therefore the candidates are deprived of opting their option as per their merit position. It is contended that Rule 11(1) of the Rules of 1999 provided that any person may apply to be admitted as a candidate for appearing at the preliminary Examination for any one or more of the Posts/Services specified in the Notice for which he/she is eligible and in such case only one application and one payment of fee shall be sufficient. Those candidates, who qualify at the main examination and summoned by the Commission for an interview, are, on the date of interview of the concerned candidates, required to indicate in the printed application form their preference for the Posts/Services for which he/she would like to be considered for allotment. This Rule is contradictory to what is provided in Rule 17(2) of the Rules of 1999, which, inter alia, stipulates that the Commission, while giving weightage to the preference for posts in the different services expressed by a candidate in his/her application may recommend him/her for appointment to any post in any such service for which it considers him suitable. It is thus evident that while a candidate does not have the right to change the order of preference once exercised, but the respondent RPSC may recommend appointment of the petitioner to any post in any of the services for which it considers him suitable regardless whether or not he has exercised the option for such service, argued the learned counsel. 5. 5. Learned counsel argued that the interview plays a vital role in the ultimate preparation of merit. While therefore the respondent RPSC has been given the power to allow the candidate to any service considering his suitability but the candidate under proviso (2) of Rule 20(1) of the Rules of 1999 has been restrained from changing the order or preference so exercised by him under Rule 11(1), which debars the candidates when they secure higher merits and are legitimately entitled to get appointment in better services. In case the appellant is allowed to change the preference, he would be, in view of his merit, able to get the appointment in the Rajasthan Police Services. Rule 11(1) and Proviso (2) of Rule 20(1) are thus arbitrary and unreasonable and therefore should be struck down being violative of Articles 14 and 16 of the Constitution of India. Such a restriction, which deprives the candidates of the opportunity to get better services on their merit, is not based upon any intelligible differentia and does not have any nexus sought to be achieved. In the present system, the choice will prevail over the merit, which is not conducive for efficiency of service. 6. We have given out anxious consideration to rival submissions and perused the material on record. 7. The aforesaid Rule 11(1) stipulates that the candidates who qualify at the main examination and appear in interview, should indicate in the printed application form the preference for the posts/services for which he/she would like to be considered for allotment on the date of interview. In fact, this Court had the occasion to deal with similar issue in Jai Singh Vs. State of Rajasthan and Another – RLW 2007 (4) Raj. 3397. In that case also prayer was made for declaring the method adopted by the Rajasthan Public Service Commission in getting the preferences expressed in the Rajasthan State and Subordinate Services Combined Competitive Examination under two separate captions, namely, ‘State Services’ and ‘Subordinate Services’, to be illegal and unconstitutional. In that case, the RPSC advertised 142 posts of ‘State Services’ and ‘Subordinate Services’, which were subsequently increased, for the Rajasthan State and Subordinate Services in November, 1990 to be filled in by combined competitive examination under the provisions of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1962, which were the predecessor Rules of the Rules of 1999. At that time, the candidates were required to fill two preference forms in accordance with Rule 10(4), 15 and 18 of the Rules of 1962, as per Schedule I with respect to ‘State Service’ and Schedule II with respect to ‘Subordinate Service’. The petitioner in that case did not express his preference for the Rajasthan Tehsildar Services, which was in ‘Subordinate Services’. However, as per his merit, he was allocated the Rajasthan Jail Services, part of State Services, wherefor he indicated the preference. The argument of the petitioner was that when there is application form is common, fees is common and common preference form for State Service and Subordinate Service is required to be prescribed, the respondents ought to prescribe the common preference form for the State and Subordinate Services. Owing to adoption of faulty system of inviting two separate option/preference forms for State Service and Subordinate Service, his case for appointment to the Rajasthan Tehsildar Service has been seriously prejudiced. 8. According to Rule 10(4) of the Rules of 1962, a candidate applying for appointment to posts in any one or more of the services mentioned in the notice for which he was eligible, was required to state in the application the posts to the various services he wished to compete for and the order of his preference for such posts in such case only one application and one payment of the fees would be sufficient. It further provided that no request for alteration in the preference indicated by a candidate in respect of services for which he/she was competing or in respect of the cadres to which he/she would like to be considered for allotment would be considered unless the request for such alternation or new insertion, if any, was received in the office of the Commission within 30 days of the date of declaration of the result of the written examination. Rule 15(3) of the Rules of 1962 provided that the commission, while giving weightage to the preference for the posts in the different services expressed by a candidate in his application, may recommend him for appointment to any post in any such service for which it considers him suitable. Rule 15(3) of the Rules of 1962 was thus analogous to Rule 17(2) of the Rules of 1999. Rule 15(3) of the Rules of 1962 was thus analogous to Rule 17(2) of the Rules of 1999. Rule 18 of the Rules of 1962 provided that subject to the number of posts specified in the notice issued under Rule 8 and subject to reservations of posts in favour of candidates belonging to Scheduled Castes/Scheduled Tribes, Non-gazetted employees, physically handicapped persons and Ministerial Staff in respect of posts included in Schedule-I and Schedule-II, the Government or the Appointing Authority, as the case may be, shall select candidates, who stand highest in the order of merit, in the list prepared by the Commission under rule 15 strictly in accordance with the order of preference given by the candidates in their application forms for different Service/Posts. In those facts, while repelling the argument of the petitioner for declaring the method adopted by the RPSC as illegal, this Court held as under:- “9. In my view, in the scheme of Rules, there is no provision for combined option/preference form for State Service and Subordinate Service. Merely because the examination was common, therefore, it cannot be inferred that the separate option form/preferences were not to be filled for State Services and Subordinate Service. As regards submission of Mr. Rajendra Prasad, counsel for the petitioner that rule 10(1) of the Rules with regard to holding of combined competitive examination and charging of common fee will give a right to the petitioner to submit option of common form containing the name of State Service as well as Subordinate Service. In my considered opinion, the object of Rules of 1962 is to save time, money, labour of candidates and curb the delay in making appointments in both the Services. Otherwise also, on raising the query to counsel for the petitioner as to what prevented him from not opting for State Service and directly opting Rajasthan Tehsildar Service while filling the examination form, his reply was that it could have been done by him but simply on this count, his aforesaid arguments cannot be thrown out. In my view, the argument has already been considered but an opportunity was available to the petitioner to opt for the Rajasthan Tehsildar Service only and since he has not done so, therefore, he is not entitled to any other opportunity. In my view, the argument has already been considered but an opportunity was available to the petitioner to opt for the Rajasthan Tehsildar Service only and since he has not done so, therefore, he is not entitled to any other opportunity. Apart from above, the petitioner has also not availed the second opportunity of changing the option as required under Rule 10 (4) of the Rules. Therefore, submission of Mr. Kumawat is accepted and submission of Mr. Rajendra Prasad is not accepted.” 9. In the Rules of 1999, however, now the candidates have been required to exercise their preference after the result of the main examination but before the interview takes place. If what the petitioner is asking is permitted to be done, the very sanctity and secrecy of the examination would be compromised as even before appearance of the candidate in the interview, the result of written examination would be required to be disclosed, which is most likely to affect the fairness of the allocation of marks in the interview itself. This Court does not find any illegality in obtaining preference/choice of service after the declaration of the result of main examination at the time candidates are called for interview. Such a method has got an intelligible differentia and also a reasonable nexus with the object sought to be achieved. The object is to ensure sanctity of the examination. The stage of obtaining such preference only at the time of interview is also based on a sound logic because only after declaration of result of main examination, it can be ascertained as to who would be called for interview. This is determined on the basis of merit as the candidates, who obtain such minimum qualifying marks in the written test of the Main Examination as may be fixed by the RPSC in their discretion, are required only to be called for interview. 10. The Supreme Court in State of Tamil Nadu Vs. P. Krishnamoorthy – (2006) 4 SCC 515, delineated the law on the scope of judicial review while examining the validity of a subordinate legislation in the following terms:- “15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. P. Krishnamoorthy – (2006) 4 SCC 515, delineated the law on the scope of judicial review while examining the validity of a subordinate legislation in the following terms:- “15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds: (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). 16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or nonconformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity.” 11. The aforesaid judgment in State of Tamil Nadu Vs. P. Krishnamoorthy, supra, has been reiterated subsequently by the Supreme Court in Cellular Operators Association of India and Others Vs. Telecom Regulatory Authority of India and Others – (2016) 7 SCC 703 , wherein, while dealing with challenge to a subordinate legislation on the ground of arbitrariness, held that such legislation must be so arbitrary that it could not be said to be in conformity with primary statute or that it offends Article 14 of the Constitution. 12. Telecom Regulatory Authority of India and Others – (2016) 7 SCC 703 , wherein, while dealing with challenge to a subordinate legislation on the ground of arbitrariness, held that such legislation must be so arbitrary that it could not be said to be in conformity with primary statute or that it offends Article 14 of the Constitution. 12. There is always a presumption in favour of constitutionality or validity of a subordinate legislation and burden is upon the person who attacks it to show that it is invalid. However, lack of legislative competence to make the subordinate legislation and failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act, are well recognised parameters for judicial review of a subordinate legislation. The petitioner in the present case has not been able to point out any one of them. 13. In our considered view, none of the aforesaid parameters set out by the Supreme Court in State of Tamil Nadu Vs. P. Krishnamoorthy, supra, are attracted in the present case. We therefore do not find any merit in this writ petition. It is accordingly dismissed. 14. This also disposes of the stay application.