JUDGMENT : 1. Since common questions of law involved and same decision of the Government being under challenge, all the aforesaid writ petitions were heard and being decided by this judgment which shall apply on all the petitions. 2. All these writ petitions can be categorized with respect to the posts for which claim has been set up by the respective writ petitioners for seeking consideration for appointment under the Economically Weaker Section (for short 'EWS') quota. However, before doing so, certain facts, which put the writ petitioners in a common string, are required to be noted. 3. The Constitution of India was amended by the Parliament in its 69th year of the Republic of India by enactment which was published in the Gazette of India, Extraordinary, Part-II, Section-1 on 12/01/2019 known as The Constitution (One Hundred And Third Amendment) Act, 2019, as under:- 2. In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:— (6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.—For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’. 3. of the total seats in each category. Explanation.—For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’. 3. In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:— "(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.". 4. The Government of Rajasthan issued a notification dated 13/02/2019 whereby The Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) (Amendment) Act, 2019 was enacted providing as under:- "LAW (LEGISLATIVE DRAFTING) DEPARTMENT (GROUP P.II) Jaipur, February 13, 2019 No. F.2(12) Vidhi/2/2019. In pursuance of clause 93) of Article 348 of the Constitution of India, the Governor is pleased to authorize the publication in the Rajasthan Gazette of the following translation in the English Language of Rajasthan Pichhada Varg (Rajya ki Shaikshik Sansthaon Mein Seeton Aur Rajya Ke Adheen Sevaon Mein Niyuktiyon Aur Padon ka Aarakshan) (Sanshodhan) Adhiniyam, 2019 (2019 ka Adhiniyam Sankhyank 2):- (Authorised English Translation) THE RAJASTHAN BACKWARD CLASSES (RESERVATION OF SEATS IN EDUCATIONAL INSTITUTIONS IN THE STATE AND OF APPOINTMENTS AND POSTS IN SERVICES UNDER THE STATE) (AMENDMENT) ACT, 2019 (ACT NO. 2 OF 2019 (Received the assent of the Governor on the 13th day of February, 2019) An Act Further to amend the Rajasthan backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State), Act 2017 Be it enacted by the Rajasthan State Legislature in the Seventieth Year of the Republic of India as follows :- 1. Short title and commencement - (1) This Act may be called the Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) (Amendment ) Act, 2019. 2. It shall come into force at once. "2. Short title and commencement - (1) This Act may be called the Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) (Amendment ) Act, 2019. 2. It shall come into force at once. "2. Amendment of section 3, Rajasthan Act No. 38 of 2017.- For the existing sub-section (1) of section 3 of the Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2017 (Act No. 38 of 2017), hereinafter in this Act referred to as the principal Act, the following shall be substituted, namely:- "(1) The reservation in respect of the annual permitted strength for admission into such educational institutions and courses in the State, as may be prescribed, for the More Backward Classes shall be five percent.". 3. Amendment of section 4, Rajasthan Act No. 38 of 2017.- For the existing sub-section (1) of section 4 of the principal Act, the following shall be substituted, namely :- "(1) The reservation of appointments and posts in the, services under the State for the More Backward Classes shall be five percent.". 5. The Government of Rajasthan, exercising powers under proviso to Article 309 of the Constitution accordingly made amendments in the various service rules as mentioned in the Schedule vide notification dated 19/02/2019 providing as under:- "GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL (A-Gr. II) No. F 7(1) DOP/A-II/2019 Jaipur, dated : 19.02.2019 NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Various service Rules as mentioned in the Schedule appended hereto, namely:- 1. Short title and commencement (1) These rules may be called the Rajasthan Various service (Amendment) Rules, 2019. (2) They shall come into force with immediate effect. "2. Amendment.-(l) After the existing rule mentioned in column number 3 against each of the service rules as mentioned in column number 2 of the Schedule given below, the following new rule as mentioned in column number 4 shall be added, namely: "Reservation of vacancies for Economically Weaker Sections :- Reservation of vacancies for Economically Weaker Sections shall be 10% in direct recruitment in addition to the existing reservation. In the event of non- availability of eligible and suitable candidate amongst Economically Weaker Sections in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure. Explanation : For the purpose of this rule 'Economically Weaker Sections' shall be the persons who are bonafide resident of Rajasthan and not covered under the existing scheme of reservations for the Scheduled Castes, the Scheduled Tribes, the Backward Classes, the More Backward Classes and whose family has gross annual income below rupees 8.00 lakh. Family for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years. The income shall include income from all sources i.e. salary, agriculture, business, profession etc. and it will be income for the financial year prior to the year of application. Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as, 'Economically Weaker Sections', irrespective of the family income:- (i) 5 acres of Agricultural Land and above; (ii) Residential flat of 1000 sq. ft. and above; (iii) Residential plot of 100 sq. yards and above in notified municipalities; or (iv) Residential plot of 200 sq. yards and above in areas other than the notified municipalities.". (2) In the existing rule as mentioned in the column number 5 against each of the service rules as mentioned in the column number 2 o f the Schedule given below, for the existing expression "woman candidates belonging to general category and Economically backward classes", the expression "woman candidates belonging to General Category, Economically Backward Classes and Economically Weaker Sections shall be substituted." 6. On 23/06/2019, the Department of Personnel, Government of Rajasthan issued circular/order to the RPSC/Staff Selection Board whereby it directed that the MBC reservation of 5% would be provided to all pending recruitments as on date of notification but EWS category reservation would be extended to only those pending recruitments where no examination had been held. 7. On 23/06/2019, the Department of Personnel, Government of Rajasthan issued circular/order to the RPSC/Staff Selection Board whereby it directed that the MBC reservation of 5% would be provided to all pending recruitments as on date of notification but EWS category reservation would be extended to only those pending recruitments where no examination had been held. 7. In all the present writ petitions, the writ petitioners are assailing the said circular dated 23/06/2019 issued by the Department of Personnel alleging it to be discriminatory, arbitrary and unreasonable and thereby violative of Article 14 of the Constitution of India towards those category of persons who claim themselves to be from EWS category and further prayed that they should be extended the benefit of EWS reservation in all the pending selections/recruitments which were not completed on the date of issuance of the notification dated 19/02/2019 and have therefore, prayed for setting aside the circular/letter dated 23/06/2019. 8. Coming to the facts of these writ petitions, the writ petitions are categorized as under according to the name of the posts for which the selection process is being conducted:- A. 1. SBCWP No. 13370/2019 Brij Lal Sharma and Others Vs. State & Others 2. SBCWP No. 13415/2019 Gorav Dhadhich and anothers Vs. State & Anr. 3. SBCWP No. 13208/2019 Surendra Singh Rathore Vs. State & Others Medical & Health Department Name of Exam Date of Advt. Last Date Exam Date Result Status Nurse Grade-II 30.5.2018 3.7.2018 No Exam Exercise already Final Merit list Pending B. 1. SBCWP No. 13030/2019 Mahendra Kumar Sharma Vs. State and Others Department of Education Secondary Name of Exam Date of Advt. Last Date Exam Date Result Status Head Master (1200) 28.3.2018 9.5.2018 2.3.2018 19.7.2019 Counselling Appointment Pending C. 1. SBCWP No. 13577/2019 Rajendra Kumar Sharma Vs. State and Others 2. SBCWP No. 13468/2019 Mohit Kumar Sharma and others Vs. State and Others 3. SBCWP No. 12088/2019 Bharat Kumar Sharma Vs. State & anothers Department of Education Secondary Name of Exam Date of Advt. Last Date Exam Date Result Status Senior Teacher Garade-II 9.4.2018 9.6.2018 31.10.2018 to 2.11.2018 29.9.2019 Appointment Pending (Counselling) D. 1. SBCWP No. 16910/2019 Sher Singh Rajput Vs UOI and Others 2. SBCWP No. 9033/2019 Sejad Kha and other Vs RSMSSB & another (No Party) Department of Education Secondary Name of Exam Date of Advt. Last Date Exam Date Result Status Senior Teacher Garade-II 9.4.2018 9.6.2018 31.10.2018 to 2.11.2018 29.9.2019 Appointment Pending (Counselling) D. 1. SBCWP No. 16910/2019 Sher Singh Rajput Vs UOI and Others 2. SBCWP No. 9033/2019 Sejad Kha and other Vs RSMSSB & another (No Party) Department of Education Secondary Name of Exam Date of Advt. Last Date Exam Date Result Status Physical Training Instructor Grade-III 4.5.2018 29.6.2018 30.9.2018 29.1.2019 Document Verification E. 1. SBCWP No. 13436/2019 Hitesh Joshi and another Vs State & others Department of Information and Technology Name of Exam Date of Advt. Last Date Exam Date Result Status Informatics Assistants 27.2.2018 27.4.2018 12.5.2018 to 5.10.2018 22.7.2019 Appointment Made F. 1. SBCWP No. 13411/2019 Pratibha Sharma and another Vs RSMSSB & another (No Party) 2. SBCWP No. 17037/2019, Sunita Sharma Vs. State and others. 3. SBCWP No. 13847/2019, Kum. Kalpana Vs. State and others. Women & Child Development - Staff Selection Board Name of Exam Date of Advt. Last Date Exam Date Result Status Anganbadi Worker Female (309) 1.10.2018 3.11.2018 3.3.2019 22.7.2019 Document Verification G. 1. SBCWP No. 14888/2019 Girdhari Sharma and others Vs RSMSSB & another Department of Commercial Taxes Name of Exam Date of Advt. Last Date Exam Date Result Status Tax Assistants 14.3.2018 18.5.2018 14.10.2018 25.2.2019 Appointment Pending H. 1. SBCWP No. 13210/2019 Ashish Kumar Sharma and others Vs JVVNL & another Department of Energy- JVVNL Name of Exam Date of Advt. Last Date Exam Date Result Status Helper II 7.9.2018 21.9.2018 26.12.2018 to 3.2.2019 - Document Verification I. 1. SBCWP No. 15088/2019 Deependra Singh Naruka and others Vs JVVNL & another Department of Personnel - Common Exam Name of Exam Date of Advt. Last Date Exam Date Result Status A. En. (Civil Engineer) 5.4.2018 29.5.2018 16.12.2018 to 18.12.2018 18.7.2019 Document Verification J. 1. SBCWP No. 5881/2019 Chetan Sharma Vs RSSB & others 2. SBCWP No. 6023/2019 Shashi Kant and another Vs RSMSSB & another 3. SBCWP No. 6861/2019 Bhaumesh Gautam Vs RSMSSB & another 4. SBCWP No. 14065/2019 Prasant Sharma Vs RSMSSB & another Department of Personnel - Common Exam Name of Exam Date of Advt. Last Date Exam Date Result Status Clerk Grade-II Junior Assistant 16.4.2018 8.6.2018 12.8.2018 to 16.9.2018 7.3.2019 Document Verification K. 1. SBCWP No. 12553/2019 Devendra Singh Vs. State Department of Animal Husbandry Name of Exam Date of Advt. SBCWP No. 14065/2019 Prasant Sharma Vs RSMSSB & another Department of Personnel - Common Exam Name of Exam Date of Advt. Last Date Exam Date Result Status Clerk Grade-II Junior Assistant 16.4.2018 8.6.2018 12.8.2018 to 16.9.2018 7.3.2019 Document Verification K. 1. SBCWP No. 12553/2019 Devendra Singh Vs. State Department of Animal Husbandry Name of Exam Date of Advt. Last Date Exam Date Result Status Live Stock Assistant 14.3.2018 21.10.2018 29.1.2019 Result directed to bew revised vide order dated 28/9/2019 followed 13/9/2019 9. Mr. Shobhit Tiwari, learned counsel for the respective writ petitioners submitted that a discrimination perse could not have adopted between the grant of benefit of 5% reservation to MBC candidates in the existing selection process and grant of 10% reservation to EWS category of candidates. He submitted that the order dated 23/06/2019 has been passed which seeks to deny the benefit already granted to the EWS candidates vide notification dated 19/02/2019 for the selection process which is underway. He submitted that the notification dated 19/02/2019 had come into force with immediate effect and there was no power available with the State Government to withhold the benefit provided under the notification to the EWS candidates while allowing MBC reservation for the post of PTI Grade-III under the advertisement issued for PTI Direct Recruit Examination, 2018. He submitted that no prejudice could be caused and there can be no reason for denying the benefit on a specious plea that the examination had already taken place. He further submitted that 4% reservation was provided vide another notification dated 24/01/2019 for physically handicapped persons. The same has been applied without any discrimination to all pending recruitments and since the reservations i.e. for PH category, MBC reservation and EWS reservation are vertical, parity was required to be maintained in granting reservations. He further submitted that in SB Civil Writ Petition No.14086/2019, decided on 09/09/2019, this Court held the action of withholding EWS reservations in All India Ayurveda Post Graduation Entrance Test, 2019 as unjustified and directed for conducting counseling separately for 10% seats to be provided under the EWS category. Learned counsel submitted that in PG Medical Courses also, EWS reservation has been allowed in the pending selection. It is submitted that the Administrator cannot exercise discriminately the application of reservation. Learned counsel submitted that in PG Medical Courses also, EWS reservation has been allowed in the pending selection. It is submitted that the Administrator cannot exercise discriminately the application of reservation. It is further submitted that if EWS reservation is not provided to them, the MBC reservation should also not apply in pending selections. 10. Mr. RP Saini, learned counsel who appeared for cases where the post concerned is that of Nurse Grade-II, submitted that the order/letter dated 23/06/2019 would have no application and the reservation of EWS cannot be denied to candidates as there is no examination conducted for selection for the post. 11. Mr. RB Sharma, counsel for the petitioners in SB Civil Writ Petition No.5881/2019, submitted that the advertisement specifically mentions that all amendments which may be made relating to reservation shall apply to the advertisement. The EWS reservation would apply in relation to the posts of general category and there is no occasion for taking of option from any candidate. It is submitted that the respondents cannot deny the benefit of EWS to the candidates who have applied as in all the advertisements which are issued by the RPSC (his case relating to Clerk Gr. II/Junior Assistant Examination, 2018), there is a column mentioning whether income of the candidate is less than Rs.2.5 lac. It is submitted that when MBC reservation of additional 4% has been allowed in all the pending selections and shadow posts have been created, the similar exercise could have been conducted for EWS also and the Government has failed to conduct its exercise for the purpose of extension of rights created by the statute in favour of the existing EWS candidates. 12. The other lawyers appearing in the respective writ petitions, have adopted the aforesaid arguments. 13. Per-contra, Mr. MS Singhvi, learned Advocate General argued that there is no legal right created in favour of any candidate as no final selections have been made. He submitted that reservation is an exception brought about by an enabling provision and no mandamus can be claimed for reservation. He relied upon the judgment of the Apex Court in Ajit Singh and others (II) Vs. State of Punjab and others: (1999) 7 SCC 209 . He submitted that reservation is an exception brought about by an enabling provision and no mandamus can be claimed for reservation. He relied upon the judgment of the Apex Court in Ajit Singh and others (II) Vs. State of Punjab and others: (1999) 7 SCC 209 . He submitted that the benefit had already been issued in all the cases and for the purpose of grant of EWS reservation, which was in addition to the existing reservations, the State was required to issue fresh advertisement or corrigendum as those candidates, who may have applied, would have no information about coming into force of the EWS reservation and would be therefore, deprived of participation in the selection process. In support of this submission, he relied upon the judgments rendered by the Apex Court in T.M.A. Pai Foundation & ors. Vs. State of Karnataka & ors.: (2002) 8 SCC 481 ; Chairman and Managing Director, Central Bank of India & ors. Vs. Central Bank of India SC/ST Employees Welfare Association & ors.: (2015) 12 SCC 308 ; Mangalam Organics Limited Vs. Union of India: (2017) 7 SCC 221 and K.V. Rajalakshmiah Setty & anr. Vs. State of Mysore & anr. : AIR 1967 (SC) 993 . He submitted that a claim for separate reservation of EWS can only be extended by providing it in the terms of the advertisement. On the other hand, the reservation for physically disabled persons as well as for MBC quota was already provided in the advertisement relating to pending selections. The only difference is that the same has been increased from 3% to 4% and 1% to 5% respectively. Thus, there is no requirement of additional applications to be invited from open market as already the candidates had applied under the PH category or MBC category and in the circumstances, therefore, the order dated 23/06/2019 was issued which provided that MBC reservation would apply to all pending selections while EWS reservation would apply to those categories where examinations have not been conducted, meaning thereby, a corrigendum could be issued for inviting applications against EWS category. Learned Advocate General relied on law in this regard which shall be dealt with later on. 14. Learned Advocate General relied on law in this regard which shall be dealt with later on. 14. Learned Advocate General further submitted that where result has already been declared or final select list has been prepared, the implementation of reservation of EWS was wholly impracticable and cannot be applied as fresh candidates who are not party to these petitions would be deprived from participation and would suffer discrimination. Secondly none of the candidates who have already been placed in the select list have been impleaded as party. If EWS reservation is to be applied, the result already declared or final select list already published will have to be revised and affect placement of such selected candidates. Learned Advocate General has relied on judgments of the Apex Court rendered in Prabodh Verma & ors. Vs. State of Uttar Pradesh & ors and other connected matters: (1984) 4 SCC 251 and in State of Rajasthan Vs. Ucchab Lal Chhanwal: (2014) 1 SCC 144 in support of the aforesaid arguments. 15. With regard to the argument advanced by learned counsel for the petitioners that if the benefit of EWS is not extended, the benefit of 4% to MBC ought not be extended and the parity should be maintained, is a negative erroneous argument, it is submission of the learned Advocate Genreal that none of the MBC candidate, who is getting the benefit under the order dated 23/06/2019 has been impleaded as party. He relies on the judgment of the Apex Court in Kumari Chitra Ghosh & anr. Vs. Union of India & ors.: AIR 1970 (SC) 35 to submit that the petitioners are not competent to challenge the MBC reservation as 4% reservation, which has been extended to MBC, would not go to the petitioners. It was his submission that in the case of petitioner-Sher Singh Rajput, such a prayer which has been made is wholly untenable and unreasonable. It was also pointed out that a PIL was preferred, however, the Division Bench refused to grant any interim order. 16. In rejoinder, learned counsel for the petitioners submitted that there is no need to redo the entire exercise as bifurcation amongst the candidates who had already applied could be done with regard to EWS reservation. It was also pointed out that a PIL was preferred, however, the Division Bench refused to grant any interim order. 16. In rejoinder, learned counsel for the petitioners submitted that there is no need to redo the entire exercise as bifurcation amongst the candidates who had already applied could be done with regard to EWS reservation. It was submitted that the petitioners are not seeking reservation but are only seeking implementation of the notification dated 19/02/2019 and mandamus in this regard could always be claimed. It was further submitted that the MBC reservation of 4% has affected the result of the general candidates as 4% seats have been cut down against the general category candidates, moreover, the technical defects cannot come in the way for implementation of a right created under a legislation. 17. Learned counsel for the petitioners have relied on the view taken by this Court in Rahul Kumar Sharma Vs. Union of India & ors (SB Civil Writ Petition No.14086/2019), decided on 09/09/2019 whereby this Court having examined implementation of the One Hundred Third amendment made in the Constitution, directed the Union of India to act according to the directions and decision taken by the Union of India to provide reservation immediately in present Session 2019-20. 18. I have thoughtfully reflected on the aforesaid arguments noted above. Following aspects in the writ petitions are required to be noticed:- (a) For recruitment to the post of Nurse Grade-II, the exercise has already been conducted. (b) For recruitment to the post of Head Master, exercise has already been conducted. (c) For recruitment to the post of Senior Teacher Gr.-II, the exercise has already been conducted. (d) For recruitment to the post of PTI Grade-III, the exercise has already been conducted (e) For recruitment to the post of Informatics Assistants, the exercise has already been conducted. (f) For recruitment to the post of Anganbadi Worker Female, the exercise has already been conducted. (g) For recruitment to the post of Tax Assistants, the exercise has already been conducted. (h) For recruitment to the post of Helper-II, the exercise has already been conducted. (i) For recruitment to the post of A.En. (Civil Engineer), the exercise has already been conducted. (j) For appointment to the post of Clerk Grade- II/Junior Assistant, the exercise has already been conducted. (k) For appointment to the post of Live Stock Assistant, the exercise has already been conducted. (i) For recruitment to the post of A.En. (Civil Engineer), the exercise has already been conducted. (j) For appointment to the post of Clerk Grade- II/Junior Assistant, the exercise has already been conducted. (k) For appointment to the post of Live Stock Assistant, the exercise has already been conducted. (l) In cases relating to Lecturers, the respondents have stated that they have added EWS reservation and are issuing a corrigendum. (m) As regards the Live Stock Assistants, it has been informed that since final result was already declared and the same has been revised subsequently after issuing of the notification order 23/06/2019, hence the EWS reservation has not been extended. (n) With regard to the selections for the post of Clerk Gr.-II/Junior Assistant, an interim order was passed whereby selections were stayed on 11/04/2019 in SB Civil Writ Petition No.5881/2019. 19. It needs no reiteration that once reservation is provided by the notification dated 19/02/2019 in the State Services and Subordinate Services by amending all the Service Rules under proviso to Article 309 of the Constitution of India, the said reservation becomes statutory and has to be implemented by the State Government. 20. This court has to examine whether the State Government while issuing letter dated 23.6.2019 has committed error while implementing the statutory reservation of EWS which was extended to all the State and Subordinate Services w.e.f. 19.2.2019. 21. In letter/order dated 23/06/2019 sent by the Department of Personnel to the Secretary, RPSC and Secretary, Rajasthan Staff Selection Board, Jaipur it was provided that so far as the MBC reservation is concerned, since there were already applicants who had applied for 1% reservation which was already existing, the notification dated 13/02/2019 increasing the reservation to 5% was directed to be implemented on the pending recruitments. It further states that "where the examination has already been declared, then in such pending selections, in order that no loss is caused to any other category of candidates, 4% additional posts for MBC shall be created and the concerned Finance Department shall conduct exercise for creation of such additional posts and in those recruitments, where no examination has been conducted, reservation for 5% for MBC in terms of the notification dated 13/02/2019 and 10% reservation for EWS in terms of notification dated 19/02/2019 shall be provided. For the said purpose, a revised division of posts shall be carried out by the concerned Administrative Department and sent to the recruiting agency. For the said purpose, all category of candidates shall be allowed to move fresh applications and the eligibility shall also be considered accordingly meaning thereby those candidates who have already applied shall be allowed to make fresh applications or their pending applications may be considered. Those candidates who were already eligible under the earlier applications would be treated to be eligible under the new corrigendum also." As per Clause (C), it has been further provided that "those candidates who had applied earlier and have become eligible for benefit of EWS category under the notification dated 19/02/2019, need not apply again and such candidates who have already applied earlier would be given opportunity to submit the EWS certificate. The creation of the additional posts for MBC was sanctioned by the Finance Department. 22. On careful reading of the letter dated 23/06/2019, as noticed above, one finds that the State Government has implemented the notification dated 13/02/2019 for all the recruitments which are pending at any stage but so far as implementation of the EWS category reservation is pending as per notification dated 19.2.2019 is concerned, the same has been only allowed upto the category of recruitments where the result has not been declared or where the process has not been completed of filling up the forms by issuing corrigendum. The reason, which has been pointed out by the learned Advocate General that there will be other candidates who may not have applied for EWS category as the same was nowhere provided in the existing advertisements. If an examination has already been conducted, rights of candidates stand crystallized and their result would be declared category-wise as mentioned in the advertisement. It is, thus, apparent that the State Government has duly applied its mind to the method and manner in which implementation of reservation is to be conducted. 23. While the Constitution may provide, as an enabling provision, the reservation of various kind to various categories, the enabling provision would apply only when the State provides reservation in its recruitment Rules. Once a reservation is provided under the Rules by notification, it becomes binding on the State government to implement such a reservation. 24. 23. While the Constitution may provide, as an enabling provision, the reservation of various kind to various categories, the enabling provision would apply only when the State provides reservation in its recruitment Rules. Once a reservation is provided under the Rules by notification, it becomes binding on the State government to implement such a reservation. 24. In view of above, the submission of learned Advocate General that a right is not available, with the petitioners for implementation seeking of reservation is not found to be tenable. Claiming of reservation may not be a right available to a candidate but once the provision of reservation has been incorporated in a given set of Rule framed under proviso to Article 309 of the Constitution, a candidate who has to apply for direct recruitment under the said Rules, gains a right of consideration for appointment under the said reservation category which is provided under the Rules. Thus, the petitioners cannot be ousted on the ground that they do not have any substantive right as it has been created after the notification dated 19/02/2019 issued by the State Government by incorporating EWS reservation in all the State and Subordinate Service Rules framed under proviso to Article 309 of the Constitution. 25. In Chairman and Managing Director, Central Bank of India & ors. Vs. Central Bank of India SC/ST Employees Welfare Association & ors. (supra), the Apex Court has held as under:- 26.......Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise." 26. However, on examining the petitioners' claim within the framework of Rules, a look at the chart, as noted above, shows that all these advertisements relating to the recruitments were issued before the notification dated 19/02/2019. 27. Each State and Subordinate Service Rule provides, as an omnibus rule, a rule relating to year-wise determination of vacancies as under :- "9 Determination of vacancies - {1} (a) Subject to the provision of these rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year. (b) Where a post is to be filled in by a single method as prescribed in the rule or, the vacancies so determined shall be filled in by that method. (c) Where a post is to be filled in by more than one method as prescribed in the rules or, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over all number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the vacancies of earlier years, year wise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in." 28. Thus, the vacancies which are determined for direct recruitment under the Rules upto that year, are sent by the concerned Administrative Department to the recruiting agency for the purpose of recruitment and advertisements and in all the cases advertisement has been issued prior to notification dated 19/02/2019.. Thus, the vacancies which are determined for direct recruitment under the Rules upto that year, are sent by the concerned Administrative Department to the recruiting agency for the purpose of recruitment and advertisements and in all the cases advertisement has been issued prior to notification dated 19/02/2019.. At the time of determination of vacancy, as there was no reservation available for EWS category, under the said Rules, therefore, the posts, which have been advertisement under the advertisement, cannot be said to be governed by the notification dated 19/02/2019. 29. In other words, the determination of vacancies for EWS was not available with the concerned department at the time of requisition sent to the recruiting agencies. Hence, the candidates, who have applied under the said advertisement, cannot claim selection on the said post for EWS category. 30. The decision of the State Government in determining the number of posts in cases where the recruitment is pending and examination has not been held, is found to be in consonance with the Rules as rule relating to determination of vacancies would be adhered. 31. The contention of learned Advocate General with regard to the fact that a fresh advertisement has to be issued, is therefore, found to be correct and in accordance with schemes of the Rules. 32. It is noticed that in the letter/decision dated 23/06/2019, the Department of Personnel has mentioned creation of additional 4% posts in order to complete 5% reservation for MBC. However, the State Government has not provided such creation of additional posts for EWS. 33. The creation or abolition of posts is an exclusive domain of the State Government and this Court cannot direct the State Government to create additional posts for the implementation of EWS reservation in the pending recruitments. Thus, the decision of the State Government in not implementing EWS reservation to the pending recruitments, where the examinations have already been held or where the result has been declared, cannot be said illegal or contrary to the Rules which govern the said recruitment. 34. In T.M.A. Pai Foundation & ors. Vs. State of Karnataka & ors. (supra), Justice Ruma Pal, while partly dissenting the judgment, has observed about the concept of equality as under:- 345. 34. In T.M.A. Pai Foundation & ors. Vs. State of Karnataka & ors. (supra), Justice Ruma Pal, while partly dissenting the judgment, has observed about the concept of equality as under:- 345. 'Equality' which has been referred to in the Preamble is provided for in a group of Articles led by Article 14 of the Constitution which says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Although stated in absolute terms Article 14 proceeds on the premise that such equality of treatment is required to be given to persons who are equally circumstanced. Implicit in the concept of equality is the concept that persons who are in fact unequally circumstanced cannot be treated on par. The Constitution has itself provided for such classification in providing for special or group or class rights. Some of these are in Part III itself [Article 26, Article 29(1) and Article 30(1)] Other such Articles conferring group rights or making special provision for a particular class include Articles 336 and 337 where special provision has been made for the Anglo-Indian Community. Further examples are to be found in Articles 122, 212 and other Articles giving immunity from the ordinary process of the law to persons holding certain offices. Again Articles 371 to 371(H) contain special provisions for particular States. 347. The equality, therefore, under Article 14 is not indiscriminate. Paradoxical as it may seem, the concept of equality permits rational or discriminating discrimination. Conferment of special benefits or protection or rights to a particular group of citizens for rational reasons is envisaged under Article 14 and is implicit in the concept of equality. There is no abridgment of the content of Article 14 thereby--but an exposition and practical application of such content." 35. Taking into consideration the aforesaid principle, if the order/decision dated 23/06/2019 is examined on the anvil of Article 14 of the Constitution, this Court finds that the State has made distinction between the classes namely; those who have been given the benefit of reservation vide order/decision dated 13/02/2019 i.e. for MBC category and those who have been placed under the EWS category. 36. In K.V. Rajalakshmiah Setty & anr. Vs. State of Mysore & anr. 36. In K.V. Rajalakshmiah Setty & anr. Vs. State of Mysore & anr. (supra), the Supreme Court was examining the demand raised by the petitioners therein that they should all receive benefits which the other promoted, before and after they had received and thus should be awarded promotion as Assistant Engineers. The case of the State of Mysore was that the benefit was awarded as a concession to Surveyors who were posted as Officer Incharge of the Sub-Division who had been promoted from time to time to the cadre of Assistant Engineer. The batch was promoted on the recommendations vide notification relating to the said Surveyors alone. In the said situation, it was claimed by the Assistant Engineers that they had been discriminated as the special concession was awarded to the Surveyors ought to be given to them, the Supreme thus held as under:- "12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession, but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. The indulgences shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, ad hoc indulgence should be meted out to the appellants before us." 37. Since the provision has already been made for reservation, a right would therefore exist in favour of the EWS candidates. 38. In The Comptroller and Auditor General of India & anr. Vs. Since the provision has already been made for reservation, a right would therefore exist in favour of the EWS candidates. 38. In The Comptroller and Auditor General of India & anr. Vs. K.S. Jagannathan & ors, AIR 1987 (SC) 537 , the Supreme Court had taken a view that the High Court can exercise its jurisdiction under Article 226 of the Constitution to issue a writ of mandamus where the Government or public authority has failed to exercise the discretion conferred upon it by a statute or a Rule or a policy decision of the Government or has exercised such discretion malafidely or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. This view of the three Judges' Bench was, however, overruled by the Supreme Court in Ajit Singh and others (II) Vs. State of Punjab and others (supra) holding as under:- "32. Learned senior counsel for the reserved candidates, Sri K. Parasaran however contended that Article 16(4) and Article 16(4A) confer a power coupled with a duty and that it would be permissible to enforce such a duty by issuing a writ of mandamus. Reliance for that purpose was placed upon Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan, [1986] 2 SCR 17 and also on Julius v. Lord Bishop which case was followed by this Court in Commissioner of Police v. Gordhandas Bhanji, [1952] 1 SCR 135. We are unable to agree with the above contention. As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran v. Union of India, (1968) II LLJ 407 SC held that Article 16(4) conferred a discretion and did not create any constitutional duty or obligation. In fact, in that case, a mandamus was sought to direct the Government of India to provide for reservation under Article 16(4) in certain Class I and Class II services. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused. The Government stated that in the context of Article 335 and in the interests of efficiency of administration at those levels, it was of the view that there should be no reservation. The said opinion of the Government was accepted by this Court as reasonable and mandamus was refused. Even in M.R. Balaji's case, the Constitution Bench declared that Article 16(4) conferred only a discretion. It is true that in Jagannathan's case, the three Judge Bench issued a mandamus, after referring to Article 142, that the Government must add 25 marks to SC/ST candidates who had taken the S.A.S. Examination for promotion as Section Officers and also that, in future, a reduced minimum marks must be provided and announced before the examination. The Court also observed that the Department had not passed orders as per a general O.M. of the Government dated 21.9.1977. But the attention of the Court was not drawn to the judgment of the Constitution Bench in C.A. Rajendran's case and other cases to which we have referred earlier. Further, if the State is of the opinion that in the interests of efficiency of administration, reservation or relaxation in marks is not appropriate, then it will not be permissible for the Court to issue a mandamus to provide for reservation or relaxation. We also note that in Superintending Engineer, Public Health v. Kuldeep Singh, [1997] 1 SCR 454, Jagannathan 's case was followed and reference was made to Article 16(4) and Article 16(4A) and 19 the principle that where a power is coupled with a duty as in Julius v. Lord Bishop and Commissioner of Police v. Gordhandas Bhanji, the same could be enforced by the Court. But we may point out that even in Kuldeep Singh's case, no reference was made to C.A. Rajendran and other cases. We, accordingly, hold that the view in Jagannathan and Kuldeep Singh's cases that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be said to be laying down the correct law." 39. For upholding an argument relating to discrimination, one has to examine the case whether the persons amongst whom discrimination is alleged, are similarly situated and come from the same class. For upholding an argument relating to discrimination, one has to examine the case whether the persons amongst whom discrimination is alleged, are similarly situated and come from the same class. The classification of candidates on the basis of their respective categories cannot be said in any manner to be unjustified. Merely because one particular class of persons has been put to an additional advantage vis-a-vis another class, it cannot be said that there has been a violation of Article 14 of the Constitution. It is within the same class of individuals that the right exists for claiming parity. 40. In H.P. Gupta & anr. Vs. Union of India & ors., (2002)10 SCC 658 , the Supreme Court held as under:- "5..........There cannot be perfect equality in any matter on an absolute scientific basis and there may be certain inequities here and there. If the classification is correct and serves a particular purpose, the same is not to be Judicially interfered with. If the argument advanced on behalf of the Appellant is accepted, then the scheme itself will become ineffective though it may result in giving uniform treatment to all. Thus, the incentive scheme will stand scrapped and such an event should be avoided. In this view of the matter, we decline to interfere with the order made by the Tribunal. The appeal is accordingly dismissed. No costs." 41. In a recent judgment in Rajasthan State Road Transport Corporation Vs. Dinesh Khan: 2019(13) SCALE 609 , the Supreme Court extended the theory of classification between two categories of dependents of deceased employees as reasonable and held as under :- "8. The dependents of a deceased employee who claim compensation from the Corporation under the Act and compassionate appointment from the Appellant- Corporation from a separate class. It is well-settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. It is well-settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question." 42. This Court further finds that the decision of the authority in applying EWS reservation in pending selections where examination has been held is equitous and allows participation of all the persons who may fall under EWS category. The contention of learned counsel for the petitioners that EWS category candidates should be identified from the existing applicants alone, would perse be discriminatory amongst all the candidates who would otherwise fall in EWS category but have been deprived to participate for the said category posts. Examining on the said basis, this Court finds that the decision taken by the State Government dated 23/06/2019 confirms the principles ingrained in Article 14 of the Constitution. 43. Another prayer made by learned counsel for the petitioners that if reservation has not been provided in the pending selections to the EWS category candidates where result has been declared or select list has been published and therefore, the reservation to MBC candidate should also not be given, is noted to be rejected. Apart from what has been stated above that both the categories form a different class, this Court agrees with the contention raised by learned Advocate General that none of the MBC category candidate is a party before us and in their absence, no order can be passed. The law relating to impleadment of necessary parties has been settled in Prabodh Verma & ors. Vs. State of Uttar Pradesh & ors and other connected matters (supra); Tridip Kumar Dingal & ors. Vs. State of West Bengal & ors & other connected matters: (2009) 1 SCC 768 (Para 41) and State of Rajasthan Vs. Ucchab Lal Chhanwal: (2014) 1 SCC 144 (supra). 44. Vs. State of Uttar Pradesh & ors and other connected matters (supra); Tridip Kumar Dingal & ors. Vs. State of West Bengal & ors & other connected matters: (2009) 1 SCC 768 (Para 41) and State of Rajasthan Vs. Ucchab Lal Chhanwal: (2014) 1 SCC 144 (supra). 44. In so far as the arguments relating to posts of Nurse Gr.II are concerned, where there is no examination and the selections are made on the basis of merit list, the claim of the EWS category candidates would not be made out as the posts were advertised prior to coming into force of the notification dated 19/02/2019 since the posts are determined for each year under the Rajasthan Medical and Health Subordinate Service Ruels. The claim of the EWS reservation is not found to be made out. The same argument would, however, not apply to MBC reservation as the State has provided for creation of additional 4% posts for EWS category. 45. In view of the aforesaid settled law, the classification and categorization of the candidates who fall under the MBC category and those who fall under the EWS category by the State Government while applying reservation in the pending recruitments being conducted by the recruiting agencies independently through their letter dated 23/06/2019 cannot be said to be discriminatory or arbitrary or violative of Article 14 of the Constitution of India and the same is accordingly upheld. 46. The claim of the EWS category candidates for reservation is also found to be without basis in view of the posts having been advertised before coming into force of the notification dated 19/02/2019. 47. Consequently, the writ petitions being devoid of merit are hereby dismissed. The interim order, if any, passed by this Court stands vacated. All pending applications also stand disposed of. No costs. 48. Copy of this order be placed in each file.