JUDGMENT : (Manindra Mohan Shrivastava, J.) 1. Heard. 2. This batch of writ petitions is being decided by this common order as they involve common issue for consideration in these writ petitions. 3. The issue which arises for consideration in this batch of writ petitions is whether candidates belonging to reserve category (vertical reservation), who at the first stage of selection of written examination, have obtained marks higher than the cut-off marks arrived at for General category candidates are entitled under the law, to be included in the General/Open category list for the purpose of being short listed and called for next stage of selection, i.e., Efficiency Test/Typing Test. 4. For brevity and convenience, the facts stated in D.B. Civil Writ Petition No.7564/2023 (Rajat Yadav & Others Versus Rajasthan High Court & Another) are being referred. 5. Factual backdrop leading to filing of the instant writ petitions:- 5.1 An advertisement was issued on 05.08.2022 by the respondents inviting applications for appointment to the post of Junior Judicial Assistant/Clerk Grade-II in Rajasthan High Court as also Rajasthan State Judicial Academy and in the establishment of the District Courts in the State. The advertisement further stated that the process of recruitment includes selection for the post of Junior Assistant in Rajasthan State Legal Services Authority, District Legal Services Authority, Taluka Legal Services Authority and Permanent Lok Adalat in the State. Reservation was also provided for reserve categories viz. Scheduled Caste (SC)/Scheduled Tribe (ST)/Other Backward Class (OBC), Most Backward Class (MBC)/Economically Weaker Sections (EWS) including horizontal reservation for various other categories. The advertisement provided for minimum academic qualification, fitness as also age wise eligibility. 5.2 The scheme and syllabus of the examination provided that a competitive examination shall be held to test the ability of the candidates, comprising of Written Test and Typewriting Test on Computer. Note (i) to (v) under Clause 15 of the Advertisement provides for preparation of merit list. 5.3 The petitioners in this batch of writ petitions appeared in the written examination. Petitioners belong to various reserve categories like OBC (NCL), SC & EWS. The respondents issued result of successful candidates, who qualified for the second phase of examination, i.e., Typewriting Test on Computer vide result dated 01.05.2023. 5.3 The petitioners in this batch of writ petitions appeared in the written examination. Petitioners belong to various reserve categories like OBC (NCL), SC & EWS. The respondents issued result of successful candidates, who qualified for the second phase of examination, i.e., Typewriting Test on Computer vide result dated 01.05.2023. 5.4 As per this result, cut-off marks declared for different categories for Non-TSP area were as below:- S.No. Category Cut-Off Marks 01 General 196.3451 02 General (Widow) 135.0103 03 General (Divorcee) 158.7026 04 Scheduled Caste 202.4398 05 Scheduled Caste (Women) 200.0362 06 Scheduled Caste (Widow) 120.0437 07 Scheduled Caste (Divorcee) 166.5399 08 Scheduled Tribe 192.0553 09 Scheduled Tribe (Widow) 120.4113 10 Scheduled Tribe (Divorcee) 122.3075 11 Shariya Tribe 135.1360 12 Other Backward Class-NCL 230.4431 13 Other Backward Class-NCL (Women) 226.2512 14 Other Backward Class-NCL (Widow) 142.9102 15 Other Backward Class-NCL (Divorcee) 209.9972 16 More Backward Class-NCL 203.3569 17 More Backward Class-NCL (Women) 201.6867 18 More Backward Class-NCL (Widow) 139.8478 19 More Backward Class-NCL (Divorcee) 148.3763 20 Economically Weaker Sections 224.5384 21 Economically Weaker Sections(Widow) 150.6860 22 Economically Weaker Sections(Divorcee) 210.7884 5.5 The cut-off marks for various reserve categories like SC, OBC-NCL, MBC-NCL and EWS were higher than the cut-off marks provided for the General category. 5.6 At this stage, the petitioners in these writ petitions belonging to different categories, who secured more marks than the cut-off marks of the General category candidates, i.e., (196.3451), but less than the cut-off marks derived from their respective reserve category, could not find place in the short listing process in their own reserve category. As per Note (ii) under Clause 15 of the Advertisement, those candidates who secured minimum 45% marks and 40% marks in the case of SC/ST & persons with Benchmark Disabilities in the written test were eligible for appearing in the Typewriting Test on Computer, subject to the extent of five times the number of vacancies (category wise), but in the same range all those candidates who secured the same percentage of marks were to be included. Due to high cut-off marks for their respective categories, the petitioners, who belong to SC, OBC-NCL & EWS, could not secure a position in the process of shortlisting after the written examination result, being five times the number of vacancies for the particular category. Due to high cut-off marks for their respective categories, the petitioners, who belong to SC, OBC-NCL & EWS, could not secure a position in the process of shortlisting after the written examination result, being five times the number of vacancies for the particular category. Resultantly, these petitioners were ousted from the process of selection as they were not allowed to appear in the Typewriting Test on Computer, i.e., the next stage of examination. 5.7 As per Note (i) under Clause 15 of the Advertisement, merit list of successful candidates for selection shall be prepared on the basis of total aggregate marks obtained in the Written Test and Typewriting Test on Computer (Speed & Efficiency Test), subject to the condition that no candidate who fails to secure 50% in the aggregate with at least 40% marks in the case of SC/ST & persons with Benchmark Disabilities and 45% marks in case of all other categories, in each test, at the competitive examination. 5.8 The petitioners, who belong to various reserve categories have, thus, approached this Court by filing this batch of writ petitions raising a common ground. 6. Submissions on behalf of the petitioners:- 6.1 Learned Senior Counsel appearing for the petitioners would argue that under the statutory scheme of examination contained in Notification dated 05.12.2002, shortlisting after the written examination is to be done only on the basis of merit and not category wise. The rule does not postulate that after the written examination, category wise list is to be prepared for candidates belonging to reserve category and in the Open category to allow the candidates to appear in the next stage of examination, i.e., Typewriting Test. Therefore, it is contended that the respondents were obliged under the law to prepare a list of meritorious candidates on the basis of the marks obtained in the written examination irrespective of their category, being five times the total number of vacancies advertised by the respondents. All those candidates, so included through the shortlisting process, were to be subjected to Typewriting Test to be followed by merit list as per Clause (1) of Note under Clause 15 of the Advertisement. Therefore, the prescription under Note (ii) of Clause 15 of the Advertisement providing for eligibility to appear in the Typewriting Test on Computer, being five times the total number of vacancies (category wise) is contrary to statutory prescription. Therefore, the prescription under Note (ii) of Clause 15 of the Advertisement providing for eligibility to appear in the Typewriting Test on Computer, being five times the total number of vacancies (category wise) is contrary to statutory prescription. The advertisement to the extent it provided for category wise preparation of the list being contrary to rule is void and inoperative, and the entire exercise of the respondents in preparing the list being illegal, is liable to be interfered with. 6.2 The second submission of learned Senior Counsel for the petitioners is that even if it is assumed that preparation of list of meritorious candidates (category wise) for the purpose of making candidate eligible to appear in the next stage of examination, i.e., Typewriting Test on Computer was permissible in law, the petitioners, reserve category candidates, who had secured more marks than the cut-off marks derived from Open category candidates were entitled to be placed in the Open category and afforded an opportunity to appear in the next stage of examination. He would submit that the petitioners have been excluded from the process of selection only because they belong to reserve category even though they have obtained marks higher than many General category candidates, if not all. The cut-off marks of General/Open category being 196.3451 means that the candidates in the General category, who secured marks upto 196.3451 were included through the shortlisting process being five times the number of vacancies in the open category. A reserve category candidate, who obtained marks higher than the General category, i.e., 196.3451, but less than cut-off marks for his own category, could not be ousted from the process of selection as that would result in ouster of more meritorious candidates irrespective of their category. 6.3 Further submission is that Open category is meant for all and a candidate belonging to reserve category, if more meritorious as compared to General category candidate, is entitled to be placed in the Open category list and could not be denied such placement merely because he happens to be a candidate belonging to the reserve category. This amounts to discrimination and will result in violation of Article 14 & 16 of the Constitution of India. This amounts to discrimination and will result in violation of Article 14 & 16 of the Constitution of India. Therefore, the principle of migration as laid down by the Hon’ble Supreme Court in the case of Indra Sawhney and Others Versus Union of India and Others, 1992 Supp (3) Supreme Court Cases 217, must be applied to ensure that more meritorious candidate, who belong to reserve category should be migrated to General/Open category merit list, if he has secured more marks than the last candidate in the General category. The action of the respondents in confining reserve category candidates to their own category, even if, they obtained marks higher than the General category offends the postulate of equality. Rules of reservation and preparation of list category wise are intended to ensure reservation to reserve category candidates, subject to they being otherwise eligible and securing minimum qualifying marks. Such rules of reservation cannot be operated to the prejudice of reserve category candidates in those cases where they are able to secure marks higher than the General category. Such an action not only offends the principle of affirmative action, but also the constitutional philosophy of reservation as embodied under Article 16 (4) of the Constitution of India. 6.4 In support of his contention, learned Senior Counsel for the petitioners has placed reliance upon the decisions of the Hon’ble Supreme Court in the cases of Indra Sawhney and Others Versus Union of India and Others (Supra), Employees’ State Insurance Corporation Versus Union of India & Others, (2022) 11 Supreme Court Cases 392, Alka Ojha Versus Rajasthan Public Service Commission and Another, (2011) 9 Supreme Court Cases 438, Richa Mishra Versus State of Chhattisgarh and Others, (2016) 4 Supreme Court Cases 179 & Pradeep Singh Dehal Versus State of Himachal Pradesh & Others, Civil Appeal Nos.7211-7212 of 2019, decided on 17.09.2019 as also the Division Bench Judgment of Allahabad High Court in the case of U.P. Power Corporation Ltd. & Another Versus Nitin Kumar and Others, 2015 Supreme Court Cases Online Allahabad 8611, Division Bench Judgment of Madhya Pradesh High Court in the case of Kishore Choudhary Versus State of Madhya Pradesh and Another, Writ Petition No.542 of 2022 and other batch of Writ Petitions, decided on 07.04.2022. 7. 7. Submissions on behalf of the respondents:- 7.1 Replying to the various grounds, learned Senior Counsel for the respondents would argue that the interpretation placed on provisions contained in Notification dated 05.12.2002 (Part of the Rajasthan High Court Staff Service Rules, 2002) is incorrect. He would submit that the provision cannot be read in isolation. According to him, the scheme of appointment includes provision for reservation of post, therefore, while preparing merit list of the candidates, in order to ensure that the candidates belonging to reserve category are able to compete against the post reserved for their respective category, category wise preparation of list after written examination is necessary and that is implicit in the statutory scheme of the rules, which provides for shortlisting of candidate after the written examination upto the extent of fifteen times to declare candidates eligible to appear in the Typewriting Test. He would submit that if that is not permitted, a common merit list, irrespective of category, five times the number of vacancies, may eventually exclude the reserve category candidates from the process of selection and there may be cases where only candidates belonging to General category are included. This would defeat the object and purpose of reservation. 7.2 The next submission of learned Senior Counsel for the respondents is that as category wise shortlisting after the written examination was implicit in the rule, the advertisement clearly provided for preparation of category wise list after the written examination to determine eligible candidates for the next stage of selection, i.e., Typewriting Test. Therefore, the prescription of category wise preparation of list after the written examination is not inconsistent with or contrary to the rules, nor against the constitutional scheme of reservation. 7.3 Further submission of learned Senior Counsel for the respondents is that the Note (i) to (v) under Clause 15 of the Advertisement clearly provided that after the written examination, subject to securing minimum qualifying marks, list of candidate eligible to appear in the Typewriting Test would be prepared category wise. The provision being unequivocal, the petitioners were fully aware that after the written examination, category wise preparation of the list would take place. Yet they accepted this scheme of examination and selection process with open eyes without any demeanor or protest. The provision being unequivocal, the petitioners were fully aware that after the written examination, category wise preparation of the list would take place. Yet they accepted this scheme of examination and selection process with open eyes without any demeanor or protest. It is only when the results of the written examination were published showing category wise list of candidates, being five times the number of vacancies in each category, the petitioners have challenged the process of selection. It is well settled that one who takes part in the process of selection without challenging the process of selection, later on, having remained unsuccessful, could not challenge the process of selection. Therefore, on this count alone any challenge to category wise preparation of the list must fail. 7.4 The next submission of learned Senior Counsel for the respondents is that the merit semantic argument raised by the learned Senior Counsel for the petitioners is not applicable at this stage. He would submit that the principle propounded in the case of Indra Sawhney and Others Versus Union of India and Others (Supra), which has been followed in subsequent decisions become applicable when the occasion arises to include reserve category candidates, who are more meritorious than General category candidate at the time of preparation of the final merit list and not at an intermediary stage. He would submit that the candidate belonging to the reserve category cannot claim to be more meritorious than the General category candidate only on the basis of marks obtained by him in the written examination as it is only first stage of selection process in the Main Examination and is to be followed by Typewriting Test, which is required to be cleared by obtaining minimum qualifying marks separately assigned for Typing Test. As to who is meritorious would be clear only on the basis of aggregate marks obtained by the candidate in the written examination as well as in the Typewriting Test. He would submit that word “Merit’ is required to be construed in a wider sense and cannot be confined to the marks obtained in the written examination. As to who is meritorious would be clear only on the basis of aggregate marks obtained by the candidate in the written examination as well as in the Typewriting Test. He would submit that word “Merit’ is required to be construed in a wider sense and cannot be confined to the marks obtained in the written examination. He would further submit that none of the decisions of the Hon’ble Supreme Court relied upon by the petitioners supports the contention that even in the midst of the process of selection, a candidate belonging to reserve category could claim placement in the list of Open category candidate even before the final list of merit after completion of all the stages of selection is prepared. He would submit that merit in the present cases has to be understood with reference to the job requirement. Even though a candidate may obtain higher marks in the written examination, in order to succeed, he has to prove his speed and efficiency in Computer test and a candidate who may have obtained howsoever high marks in the written examination may even fail if he fails to secure the minimum qualifying marks in Speed and Efficiency Tests. Not only for General category but for reserve category candidates also, minimum qualifying marks, little lower than qualifying marks prescribed for General category candidate, have been prescribed in the advertisement. Therefore, it is argued that it is premature at this stage to claim inclusion merely because a reserve category candidate has secured more marks in the written examination, on the basis that he is more meritorious than the General category candidate and, therefore, entitled to be placed in the list of General category candidate. It is further argued that a candidate, who belongs to reserve category and applies for post against the reserve category, cannot be treated as Open category candidate during the process of selection. The merit would become relevant only when the final merit list is prepared for the purpose of making appointment. The petitioners are reserved category candidates and had applied for posts reserved for their respective categories. According to him, unless the process of selection is completed and the final merit list is prepared, no candidate belonging to reserve category could claim placement in the shortlisting process, in the list of Open category by claiming that he is more meritorious than a General category candidate. According to him, unless the process of selection is completed and the final merit list is prepared, no candidate belonging to reserve category could claim placement in the shortlisting process, in the list of Open category by claiming that he is more meritorious than a General category candidate. He would further submit that on this aspect that a candidate belonging to reserve category could not claim migration to General category at the intermediary stage of the process of selection unless the final merit list is prepared, consistent view has been taken by this Court in large number of decisions. In support of his contention, learned Senior Counsel for the respondents has placed reliance upon the decision of the Hon’ble Supreme Court in the case of Chattar Singh and Others Versus State of Rajasthan and Others, (1996) 11 Supreme Court Cases 742 and the Division Bench Judgments of this Court in the cases of Dharamveer Tholia and Others Versus State of Rajasthan and Another, 2000 (3) WLC 399, Garima Sharma Versus The State of Rajasthan and Another, D.B. Civil Special Appeal (Writ) No.1448/2016, decided on 08.05.2018, Rajasthan Public Service Commission Versus Dr. Megha Sharma & Others, 2020 (3) RLW 2203 (Raj.), State of Rajasthan & Anr. Versus Hanuman Jat & Others, 2017 (1) RLW 525 (Raj.), Khushi Ram Gurjar Versus Rajasthan High Court, Jodhpur & Another, 2021 (4) RLW 3139 (Raj.), Sunita Meena Versus Rajasthan High Court, Jodhpur & Another, D.B. Civil Writ Petition No.1244/2022, decided on 20.04.2022, Deepak Sharma Versus State of Rajasthan & Others, D.B. Civil Writ Petition No.5017/2021, decided on 11.01.2022, Kavita Bhargava Versus Registrar Examination, Rajasthan High Court, Jodhpur, D.B. Civil Writ Petition No.2253/2022 and other batch of petitions, decided on 08.04.2022, a Division Bench Judgment of Madhya Pradesh High Court in the case of Pushpendra Kumar Patel and Others Versus High Court of M.P. and Others, WP No.8750 of 2022, decided on 02.01.2023 (MANU/MP/0001/2023). 8. We have given our anxious consideration to respective submissions made by learned senior counsel for the parties, the scheme of examination, terms of advertisement and various decisions cited at the bar. 9. 8. We have given our anxious consideration to respective submissions made by learned senior counsel for the parties, the scheme of examination, terms of advertisement and various decisions cited at the bar. 9. Analysis, reasoning and conclusion:- 9.1 The respondents issued an advertisement on 05.08.2022 for filing up vacancies of Junior Judicial Assistant in the establishment of the Rajasthan High Court, vacancies of Judicial Assistant in State Legal Services Authority, District Legal Services Authority and Clerk Grade-II in State Judicial Academy and in the District Judge establishment, it being a joint recruitment process. The advertisement stated that the aforesaid recruitment shall be governed by the provisions contained in Rajasthan High Court Staff Service Recruitment Rules, 2002 (as amended), (hereinafter referred to as ‘the Rules of 2002) and Rajasthan District Courts Ministerial Establishment Rules, 1986 (as amended), (hereinafter referred to as ‘the Rules of 1986’). The petitioners have not called in question the process of joint recruitment being governed by the aforesaid two rules, however, one of the principal contention is that the process of shortlisting after the written examination is in contravention of the provisions contained in Notification dated 05.12.2002 issued by the Hon’ble Chief Justice in pursuance of Rules 4, 5, 7 & 22 of the Rules of 2002. Part-I A of the aforesaid Notification deals with the methods of recruitment of ministerial staff. Point (ii) of Part-I A deals with examination which provides as below:- “(ii) EXAMINATION. -A competitive examination shall be held to test the ability of the candidate in the following subjects & each subject will carry the number of marks shown as under:- (a) SECTION - A (i) WRITTEN TEST-The written test shall consist of one paper of 300 marks comprising of :Part A Hindi 100 Marks Part B English 100 Marks Part C General Knowledge 100 Marks Each Part shall have 50 Multiple Choice Questions bearing two Marks for each question. (ii) Duration : Two Hours (b) SECTION – B (i) TYPE-WRITING TEST ON COMPUTER There will be Speed Test on Computer. Speed : Minimum speed should be 8000 depressions per hour on computer. Data will have to be fed in English Language or in dual language, i.e., English and Hindi. The test will be of 100 marks which will consist of speed test and efficiency test carrying 50 marks each (total 100 marks). Speed : Minimum speed should be 8000 depressions per hour on computer. Data will have to be fed in English Language or in dual language, i.e., English and Hindi. The test will be of 100 marks which will consist of speed test and efficiency test carrying 50 marks each (total 100 marks). (ii) Duration : Ten Minutes Note: (i) The syllabus and scope of each subject of the written examination will be as prescribed by the High Court from time to time and will be intimated to the candidates within stipulated time through web-site or in the manner as the High Court deem fit. (ii) Those candidates who secure minimum 45% marks and 40% marks in case of Specially abled persons and SC/ST candidates in the written test shall be eligible for appearing in the type writing test on computer, subject to the extent of 15 times of the number of vacancies or as the Appointing Authority may deem appropriate but in the said range all those candidates who secure the same percentage of marks shall be included. (iii) No candidate who failed to secure 50% in the aggregate with at least 40% marks in case of Scheduled Caste/Scheduled Tribes & Specially Abled Persons and 45% marks in case of all other categories, in each test, at the competitive examination shall be selected. If two or more of such candidates obtain equal marks in the aggregate, their names shall be arranged on the basis of general suitability.” 9.2 The aforesaid provisions provide that a competitive examination shall be held to test the ability of the candidate in the prescribed subjects and each subject will carry the number of marks prescribed therein. The examination comprises of Written Test and Typing Test on Computer. Note (ii) provides that those candidates, who secure minimum 45% marks and 40% marks in case of Specially abled persons and SC/ST candidates in the Written Test shall be eligible for appearing in the Typewriting Test on Computer, subject to the extent of 15 times of the number of vacancies or as the Appointing Authority may deem appropriate but, in the said range, all those candidates who secure the same percentage of marks shall be included. An argument has been raised that the aforesaid Note (ii) obliges the respondents to shortlist the candidates, who have obtained minimum qualifying marks in the Written Test irrespective of any category. An argument has been raised that the aforesaid Note (ii) obliges the respondents to shortlist the candidates, who have obtained minimum qualifying marks in the Written Test irrespective of any category. According to learned Senior Counsel for the petitioners, the respondents were obliged to shortlist all the candidates irrespective of their category whether they are in the Open category or any of the reserve category, to the extent provided in the advertisement, i.e., five times the total number of vacancies and, therefore, shortlisting of the candidates for Typewriting Test category wise is contrary to rules. It is submitted that had this process been adopted, the occasion in the present case would not have arisen where the candidates belonging to various reserve categories, who obtained marks more than the General category candidates in the written examination are ousted and do not get an opportunity to appear in the Typewriting Test on Computer. Restricting shortlisting to the extent of five times as provided in the advertisement, has not been disputed. Even otherwise, the provision provides for the maximum number of times of the number of vacancies for shortlisting of the candidates clearing the written examination and, therefore, it is within the authority of the respondents to restrict the number of candidates to even less than fifteen times the number of vacancies. In the present case, the advertisement clearly provided that the candidates will be shortlisted after the written examination to the extent of five times the number of vacancies advertised. 9.3 It is to be noted that all the vacancies for which the recruitment is being made are governed by the provisions with regard to the reservation to various categories like ST, SC, OBC (NCL), MBC and EWS including horizontal reservation for categories like Physically Handicapped etc. If the interpretation as suggested by the learned Senior Counsel for the petitioners is accepted, the object of the reservation would be seriously jeopardised. Preparation of list category wise in view of scheme of reservation in appointment, is implicit in the rules. This aspect was considered by the Hon’ble Supreme Court in the case of Chattar Singh and Others Versus State of Rajasthan and Others (Supra). In that case, process for recruitment to posts in administrative and subordinate services in the State was undertaken. Preparation of list category wise in view of scheme of reservation in appointment, is implicit in the rules. This aspect was considered by the Hon’ble Supreme Court in the case of Chattar Singh and Others Versus State of Rajasthan and Others (Supra). In that case, process for recruitment to posts in administrative and subordinate services in the State was undertaken. Rule 13 of The Rajasthan State and Subordinate Service (Direct Recruitment By Combined Competitive Examination) Rules, 1962 (hereinafter referred to as ‘the Rules of 1962’) provided for the scheme of Examination, Personality and Viva Voce test. Amongst other things, the rule provided that the competitive examination shall be conducted by the Commission in two stages, i.e., Preliminary Examination and Main Examination. It was further provided that the number of candidates to be admitted to the Main Examination will be fifteen times the total approximate number of vacancies to be filled in the year in various services and posts. The relevant rules, later on, underwent amendment which provided that the result should be declared category wise. 9.4 The validity of Rule 13 of the Rules of 1962 providing for scheme of examination was under challenge mainly on the ground that the candidates belonging to OBC category were also eligible to claim reduction of 5% of the marks secured by them in the Preliminary Examination for enabling them to appear in the Main Examination as was available to the candidates belonging to SC/ST category. 9.5 While holding that OBCs were not entitled to 5% cut-off marks in the Preliminary Examination under Rule 13 of the Rules of 1962, it was categorically held that even before amendment in the rules subsequently providing for preparation of list category wise, it was otherwise implicit in the rule. It was held thus:- “20. As regards the preparation of separate list of General, OBCs, SCs, STs and physically handicapped, in view of the fact that the latest amendment has made explicit what was implicit in Rule 13, we are of the view that separate lists are required to be published by the Service Commission in respect of the candidates in the respective categories so as to make up number of candidates 15 times the notified or anticipated posts/vacancies so as to enable them to appear in the Main Examination. It is true that the amendment is prospective in operation. It is true that the amendment is prospective in operation. However, it does not detract from the efficiency of Rule 13 originally made. In view of the above, the Public Service Commission is directed to call all those candidates that constitute 15 times the posts/vacancies notified or anticipated in terms of the above declaration of law so as to enable them to appear in the Main Examination.” 9.6 Thus, the aforesaid observation of the Hon’ble Supreme Court answers the objections raised by the learned Senior Counsel for the petitioners that Note (ii) of the scheme of examination, as contained in Notification dated 05.12.2002 does not allow shortlisting category wise. It was categorically held that it was implicit in the rule that separate lists are required to be published by the Service Commission in respect of the candidates in the respective categories so as to make up number of candidates fifteen times the notified or anticipated posts/vacancies so as to enable them to appear in the Main Examination. It was noted that the amendment is prospective in operation. Thus, it was held that even before amendment in the provision, it was implicit in the rules to prepare list category wise. Therefore, the contention of learned Senior Counsel for the petitioners that shortlisting of the candidates category wise after the written examination is contrary to the scheme of the examination and scheme of shortlisting does not hold water and is liable to be rejected. 9.7 The aforesaid conclusion also answers challenge to the provisions contained in the advertisement which provides for category wise preparation of list by shortlisting the candidates after the written examination. Therefore, the argument that shortlisting process as provided in the advertisement is contrary to prescription in the rules also fails and is rejected. 9.8 Having participated, the petitioners are precluded from challenging the selection process insofar as preparation of list category wise is concerned. This legal position is no longer res integra and has been settled by series of judicial pronouncements of the Supreme Court in the case of K.A. Nagamani vs. Indian Airlines & Ors. [2009 (5) SC 515], Manish Kumar Shahi vs. State of Bihar & Ors. [ 2010 (12) SCC 576 ], Ramjit Singh Kardam Vs. Sanjeev Kumar [ AIR 2020 SC 2060 ] and Ramesh Chandra Shah & Ors. vs. Anil Joshi & Ors. [ 2013 (11) SCC 309 ]. [2009 (5) SC 515], Manish Kumar Shahi vs. State of Bihar & Ors. [ 2010 (12) SCC 576 ], Ramjit Singh Kardam Vs. Sanjeev Kumar [ AIR 2020 SC 2060 ] and Ramesh Chandra Shah & Ors. vs. Anil Joshi & Ors. [ 2013 (11) SCC 309 ]. It has been stated and reaffirmed time and again that those, who had submitted applications and participated in the selection process without challenging the process of selection, have no locus to challenge the advertisement and the selection process after they have been declared unsuccessful. In the case of Ramjit Singh Kardam (supra), it was held as below: “In Madan Lal and Ors. vs. State of J and K & Ors., (1995) 3 SCC 486 , this Court laid down following in paragraph 9:- “9. ……………It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285: ( AIR 1986 SC 1043 ) : (1986 Lab IC 796, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” The present is not a case of some very glaring and serious illegality committed vitiating the entire process of selection as such.” 9.9 Learned Senior Counsel for the petitioners however relied upon the Division Bench Judgment of Madhya Pradesh High Court in the case of Pushpendra Kumar Patel and Others Versus High Court of M.P. and Others (Supra) and another Division Bench Judgment of Allahabad High Court in the case of U.P. Power Corporation Ltd. & Another Versus Nitin Kumar and Others (Supra) and contended that before final merit list/select list for appointment is prepared, the candidates in OBC category and other reserved categories, who obtained higher marks in written examination were required to be migrated to the Open category. 9.10 Relying upon the decision of the Hon’ble Supreme Court in the case of Chattar Singh and Others Versus State of Rajasthan and Others (Supra), this Court has taken consistent view that the rule of migration will not be applicable at the stages of shortlisting of the candidates at the stage of screening/preliminary exam and such migration of reserve category candidates, who have obtained more marks than the General category candidates is applicable only at the time of preparation of final merit list/select list for the purposes of making appointment. 9.11 Such consistent view has been taken in the cases of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra), Garima Sharma Versus The State of Rajasthan and Another (Supra), Rajasthan Public Service Commission Versus Dr. Megha Sharma & Others (Supra), State of Rajasthan & Anr. Versus Hanuman Jat & Others (Supra), Khushi Ram Gurjar Versus Rajasthan High Court, Jodhpur & Another (Supra), Sunita Meena Versus Rajasthan High Court, Jodhpur & Another (Supra) & Deepak Sharma Versus State of Rajasthan & Others (Supra). Aforesaid decisions have been rendered in the matter of challenge to the shortlisting category wise after the Preliminary Examination for the purpose of allowing the candidates to enter into Main Examination. In all the cases, it has been consistently held that the rule of migration would apply only at the time of preparation of final merit list/select list for appointment and not at the screening stage as the marks are not added while preparing final merit list. 9.12 In the case of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra), a Division Bench of this Court dealt with the issue as to whether reserved category candidates, who have secured higher marks than the General category candidates, should be accommodated against General category for the purposes of shortlisting the candidates for the Main Examination. Provision of Rule 15 of The Rajasthan State and Subordinate Service (Direct Recruitment By Combined Competitive Examination) Rules, 1999 (hereinafter referred to as ‘the Rules of 1999), which permitted preparation of the list of candidates to be admitted to the Main Examination, who had taken the Preliminary Examination, category wise, was challenged as violative of Articles 14, 15, 16 & 21 of the Constitution of India. An argument was raised therein that while shortlisting the candidates in the examination for allowing them to appear in the Main Examination, all those candidates in the reserve category, who had obtained higher marks in the process of shortlisting are required to be accommodated in the Open category by replacing those General category candidates, who had obtained lesser marks. In the aforesaid decision, reliance was placed upon the decision of the Hon’ble Supreme Court in the case of Chattar Singh and Others Versus State of Rajasthan and Others (Supra) wherein, the judgments of the Division Bench and Single Bench of Punjab and Haryana High Court were distinguished, upholding the validity of the rule and the action of the Public Service Commission in preparing the list of candidates category wise. It was held thus:- “48. In our opinion, the judgments of the Punjab and Haryana High Court and that of the learned Single Judge in the case of Pawan Kumar and Ors. (supra), cited by Mr. Soni are distinguishable on facts and law and the field is occupied by the judgments of our own High Court interpreting the scope and ambit of the very rule and reported in 1995(2) WLC 223, 1996 (3) RLW 344 and 1996 (11) SCC 742 , (supra). Rule 15 of the Rules of 1999 was similar to Rule 13 of the Rules of 1962, which came up for interpretation before this Court as well as the Hon'ble Supreme Court. The Supreme Court held that the RPSC is required to prepare a list category-wise to the extent of 15 times the number of vacancies in each category. In view of the interpretation of the Supreme Court, there is absolutely no scope for any different interpretation of the said rule as suggested by the learned Counsel for the petitioners. The Service Commission has acted only on the basis of the interpretation of Rule 15 as given by the Supreme Court in the case of Chattar Singh (supra). As already noticed, the first Writ Petition No. 3346/2000, was filed by a practicing Advocate of this Court. Though, the writ petition is maintainable at this instance, which exposes a case of public importance, no personal injury is being caused to the Lawyer by giving effect to Rule 15 which was approved by the Apex Court in the above case. As already noticed, the first Writ Petition No. 3346/2000, was filed by a practicing Advocate of this Court. Though, the writ petition is maintainable at this instance, which exposes a case of public importance, no personal injury is being caused to the Lawyer by giving effect to Rule 15 which was approved by the Apex Court in the above case. In view of the verdict by the Apex Court, we are of the opinion that the petitioner is not entitled to challenge the validity of Rule 15 of the Rules of 1999. It is stated by the Service Commission that the rule is in existence and its validity has been upheld by the Supreme Court in 1996. The Commission has held examinations in the past and declared result on the basis of interpretation given by the Hon'ble Supreme Court to this rule. The preliminary examinations’ results were declared on 27.5.2000 and the main examinations are scheduled to be held from 6.8.2000 onwards. However, public interest litigation filed only on 24.7.2000 to challenge the validity of the rule after declaration of the result and after the time table for holding the main examination had been issued is not entertainable at this belated stage. As already seen, the issues raised by the petitioners have already been considered by this Court in the past and this Court in the case of Mahesh Kumar Khandelwal (supra) held that the rule is quite consistent with the reservation policy of the State and further in consonance with the provisions of Article 335 of the Constitution and it does not take away any vested right of SC/ST candidates and pertains only to realm and procedure of the examination process with a view to achieve the screening. The said rule again came up for interpretation after amendment before a Division Bench of this Court in Vijay Kumar Gehlot v. State of Rajasthan [1996 (3) RLW 333] and since there was a difference of opinion expressed by the learned Judges, the matter was referred to the third Judge who agreed with the findings and conclusions of Justice B.R. Arora and recorded his findings as extracted above. It is seen from the above pronouncement of law that the preliminary examination is essentially a screening test to short list the candidates and the rider of Article 335 cannot be applied at the stage of preliminary examination, but could be applied to the main examination. We cannot presume that by allowing some candidates to appear in the main examination does not automatically induct them in Government Service. As rightly pointed out by Mr. Joshi, a person declared successful in preliminary examination only has a right to appear in the main examination and as has been held by the Supreme Court in Chattar Singh's case (supra). The arguments of the learned Senior Counsel that the list of successful candidates in the preliminary examination should be prepared on the basis of the merits of the candidates secured by them in the preliminary examination and should not be prepared category-wise, has no merit and force. As per the scheme of the examination, final merit is prepared only after holding the main examination and interview as per Rule 17 of the Rule of 1999 and the marks obtained by the candidates in the main examination and the interviews are taken into account and on the basis of the aggregate marks final merit list is prepared. Such a situation, in our view, is not envisaged at the time of holding the screening test for short-listing the candidates as no merit list is prepared by the Commission at the stage of holding the preliminary test and marks obtained by the candidates in the preliminary examination are not taken into account while preparing the final list of the candidates. The interpretation given by the learned Counsel for the petitioner, will in our opinion, result in denying the reserved category candidate a right of consideration in the main examination as reserved category candidate which will run against the scheme of reservation provided under the Rules and various notifications issued by the State Government.” It was noted that the Preliminary Examination is essentially a screening test to shortlist the candidates and the rider of Article 335 of the Constitution of India cannot be applied at the stage of Preliminary Examination, though, it could be applied to the Main Examination as the Court cannot presume that by allowing some candidates to appear in the Main Examination, would not automatically induct them in government service. Submissions made before the Court that a person declared successful in Preliminary Examination only has a right to appear in the Main Examination, was also noted. The argument that the list of successful candidates in the Preliminary Examination should be prepared on the basis of the merits of the candidates secured by them in the Preliminary Examination and should not be prepared category wise, was rejected on the legal premise that under the scheme of the examination, final merit list was to be prepared only after holding the Main Examination and Interview as per rules and the marks obtained by the candidates in the Main Examination and Interview are taken into account and on the basis of aggregate marks, the final merit list was prepared. It was held that such a situation is not envisaged at the time of holding screening test for the purposes of shortlisting the candidates as no merit list was prepared by the Commission at the stage of holding the Preliminary Examination and marks obtained by the candidates in the Preliminary Examination are not taken into account while preparing the final merit list of the candidates. The Division Bench further cautioned that interpretation as sought by the petitioners therein would result in denying the reserve category candidate, a right of consideration in the Main Examination as reserve category candidates, which will run against the scheme of reservation provided under the rules and various notifications issued by the State Government. The contention raised by the petitioners therein was rejected on the following considerations:- “49. Rule 15 of the Rules of 1999 provides the procedure to prepare the list of candidates for appearing in the main examinations, of the preliminary examination cannot to be a final result. In regard to the submission made by the Senior Counsel for the petitioner about the reservation policy provided under Article 16 (4) of the Constitution as well as the judgments cited are not in dispute but the same in our view, will not be of any help or assistance to the petitioners at this stage of short listing. The judgment of the Hon'ble Supreme Court relied on by the petitioner in Sabharwal's case (supra) pertains to the promotion policy and also of the vacancies based on roster system which in our opinion, will be applicable only at the time of preparing the final select list. The judgment of the Hon'ble Supreme Court relied on by the petitioner in Sabharwal's case (supra) pertains to the promotion policy and also of the vacancies based on roster system which in our opinion, will be applicable only at the time of preparing the final select list. As per Rule 15, the RPSC shall permit the candidates 15 times the total approximate number of vacancies in each category in the main examination and this Rule has been upheld by the Supreme Court in Chattar Singh's case (supra). The reservation policy is meant for recruitment only and there is no other reservation policy for short listing in examination. As such, the actions of the RPSC are within the mandate of Article 16(4) of the Constitution of India as well as the Rules of 1999. If the contention of the learned Counsel for the petitioners is accepted, the thousands of meritorious candidates who have been selected as per the preliminary examination will be affected and their interest will be jeopardised.” Thus, the aforesaid was a case where the scheme of migration of reserve category candidates in the open category was not allowed at the stage of shortlisting the candidates for admitting them to Main Examination. The principle which can be carved out from the aforesaid decision is that migration of reserve category candidates to open category on the basis of having obtained higher marks at screening stage of selection process, is neither constitutional, nor statutorily mandated. 9.13 However, a dissent note was struck by the learned Single Judge of this Court in the case of Bhawani Singh Kavaya Versus State of Rajasthan, (2008) 4 RLW Rajasthan 3138. 9.14 Further, another subsequent decision of the Division Bench of this Court in the case of State of Rajasthan & Anr. Versus Hanuman Jat & Others (Supra), placing reliance upon the earlier decision in the case of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra), reiterated the legal position. Again, it was a case where shortlisting of the candidates was undertaken after their performance in the Preliminary Examination for the purposes of admitting the candidates to the Main Examination, which comprises of the multiple stages. It was held as below:- “19. Again, it was a case where shortlisting of the candidates was undertaken after their performance in the Preliminary Examination for the purposes of admitting the candidates to the Main Examination, which comprises of the multiple stages. It was held as below:- “19. The Division Bench of this Court is clear in its view that the list of candidates 15 times the number of vacancies category-wise belonging to one category cannot be shifted to another category on the basis of their merit as the list of successful candidates in the preliminary examination is meant only for short-listing the candidates for the main examination and that does not constitute the merit of the candidates, which is done at the time of preparation of final merits of the candidates. 20. It cannot be disputed that the purpose of holding Screening Test is to ensure the basic standard of eligibility of the candidates and even at the stage of admission to the main examination, the rule of reservation of posts cannot be applied. Reservation for applicants is also not permissible under Article 16(4) of the Constitution.” Further proceeding on a legal presumption that the rule of accommodating those reserve category candidates, who have obtained more marks than General category candidates is an aspect of the rule of reservation, it was observed as below:- “25. In our considered view, the reservation is applied at the time of recruitment and not at the time of preliminary examination for short listing the number of candidates and it is the duty of the recruiting authority to ensure fair and competitive examination. There is a distinction between the holding of preliminary examination and the main examination. The preliminary examination is held to short list the candidates and marks obtained in such examination are not added while determining the final merit of the candidates and thus, reservation of applicants is not applied at the stage of preliminary examination, as settled by the Apex Court in the case of Chattar Singh (supra) and also by the coordinate Division Bench of this Court in the case of Dharamveer Tholia (supra). We are clear in our view that the rule of reservation is not applied at the time of short listing the candidates and Article 16(4) for reservation is not applied in every stage of selection process as being envisaged in the facts and circumstances of the case and we are in full agreement with the view expressed by the Division Bench of this Court in the case of Dharamveer Tholia (supra).” 9.15 The line of reasoning adopted by the Division Bench of this Court in the cases of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra) & State of Rajasthan & Anr. Versus Hanuman Jat & Others (Supra), proceeds on a principle that the accommodation of reserve category candidates in the open category is constitutionally mandated only when the final merit list for the purposes of making appointment is prepared and not at the screening stage. The common thread of reasoning in all above decisions is that the claim of a reserve category candidate to be accommodated in the Open category on the basis of marks obtained at the Preliminary Examination stage, is not tenable in law as the marks secured are not added for the purpose of preparation of the final merit list and that preparation of category wise list after Preliminary Examination is essential to ensure participation of the candidates belonging to reserve category in the main Examination. The aforesaid Division Bench decisions of this Court are, however, not applicable when the Main Examination commences. The observations made in the cases of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra) & State of Rajasthan & Anr. Versus Hanuman Jat & Others (Supra), clearly show that the principle laid down therein was not intended to be applied at the Main Examination. In para 48 of the decision in the case of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra), it was clearly observed that as per the scheme of examination, final merit list is prepared only after holding the Main Examination and Interview and the marks obtained by the candidates in the Main Examination and the Interviews are taken into account and on the basis of the aggregate marks, final merit list is prepared. Such a situation, is not envisaged at the time of holding the screening test for short-listing the candidates as no merit list is prepared by the Commission at the stage of holding the Preliminary Test and the marks obtained by the candidates in the Preliminary Examination are not taken into account while preparing the final merit list of the candidates. Similarly, in the case of State of Rajasthan & Anr. Versus Hanuman Jat & Others (Supra) also, the aforesaid distinguishing feature was again noted by observing in para 24 of the decision that the marks obtained in the Preliminary Examination are neither part of the Main Examination, nor added while preparing the final merit list of the candidates for giving appointments. All other decisions of different Division Benches of this Court in the cases of Garima Sharma Versus The State of Rajasthan and Another (Supra), Rajasthan Public Service Commission Versus Dr. Megha Sharma & Others (Supra), Khushi Ram Gurjar Versus Rajasthan High Court, Jodhpur & Another (Supra) and Sunita Meena Versus Rajasthan High Court, Jodhpur & Another (Supra), have followed the decisions in the case of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra). Those were all cases where Preliminary Examination was held and the claim was made for migration of reserve category candidates to Open category and not a case where the candidates participated in the Main Examination and appeared in the written examination, being part of the Main Examination. The scheme of examination in the present cases clearly reveals that marks obtained in the Main Examination comprising of the written test and skill test (Typing Test) are to be aggregated for the purposes of preparing the final merit list for appointment. Therefore, it is not a case of scrutiny. The marks obtained by a candidate in the written examination are going to be added for the purposes of preparing a final merit list. Therefore, the principles which have been laid down in Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra) and all subsequent Division Bench judgments of this Court would not apply at the stage of Main Examination. Therefore, the principles which have been laid down in Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra) and all subsequent Division Bench judgments of this Court would not apply at the stage of Main Examination. The decision of Madhya Predesh High Court in the case of Pushpendra Kumar Patel and Others Versus High Court of M.P. and Others (Supra) was also one in which the High Court had examined the claim of migration at the stage of the Preliminary Examination. Consequently, all the decisions of this Court starting from Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra) and the Division Bench judgment of Madhya Predesh High Court in the case of Pushpendra Kumar Patel and Others Versus High Court of M.P. and Others (Supra) are not applicable for the reason that those decisions dealt with claim of migration from reserve category to Open category at the stage of Preliminary Examination and not where the candidates’ merit is to be judged at the stage of Main Examination and their marks are to be added for the purposes of finalising the merit list. The contention of learned counsel for the respondents, therefore, that the principle laid down in the aforesaid decision is equally applicable at the time of short-listing the candidates category wise after written test in the Main Examination, is liable to be rejected. 9.16 Where the marks obtained by a candidate in the written test are to be taken into consideration for the purposes of preparation of list of meritorious candidates, inclusion in the Open category must necessarily depend upon the marks obtained in the written test, irrespective of the category to which the candidate belongs to. An Open/General category is open to all and is not reserved only for General category. In other words, whether it be a General category candidate or reserve category candidate, short-listing of the candidates after written test in the Main Examination has to be on the basis of marks obtained in the written examination. A candidate belonging to reserve category, who obtains marks more than the General category candidates is entitled to be placed in the General category list while short-listing the candidates for the second stage of examination, i.e., skill test. A candidate belonging to reserve category, who obtains marks more than the General category candidates is entitled to be placed in the General category list while short-listing the candidates for the second stage of examination, i.e., skill test. If a reserve category candidate, even though, he has obtained more marks than the cut-off marks of the General category candidate, is excluded and ousted from the process of selection at that stage merely for the reason that he belongs to reserve category, in our considered opinion, would be the worst form of discrimination wholly impermissible under Article 14 & 16 of the Constitution of India. The right of a candidate belonging to reserve category, who has proved to be more meritorious to be placed in the Open category list, is not a rule of reservation, but a postulate of equality based on merit. Short-listing the candidates category wise in various reserve categories is intended to ensure selection of reserve category candidates and appointment against the posts reserved for them, even if, they are less meritorious, to advance the constitutional mandate enshrined under Article 16(4) of the Constitution of India. In the case of Janki Prasad Parimoo and Others Versus State of Jammu & Kashmir and Others, AIR 1973 Supreme Court 930, it was observed that “it is implicit in the idea of reservation that a less meritorious person is to be preferred to another who is more meritorious”. However, that does not mean that a candidate belonging to reserve category, even if, more meritorious than a General category candidate, has to remain in his own category as that would result in discrimination neither constitutional mandated, nor permissible, having no nexus with the objective of reservation to disadvantageous class of society. This is illustrated by what has happened in the present batch of petitions. The cut-off marks for General category is lower than the cut-off marks in SC, OBC (NCL), MBC (NCL) & EWS categories. This is clear from the chart mentioned in para 5.4 hereinabove. It clearly shows that the respondents while preparing list category wise have treated Open/General category as a category reserved exclusively for candidates belonging to General category. The cut-off marks for General category is lower than the cut-off marks in SC, OBC (NCL), MBC (NCL) & EWS categories. This is clear from the chart mentioned in para 5.4 hereinabove. It clearly shows that the respondents while preparing list category wise have treated Open/General category as a category reserved exclusively for candidates belonging to General category. If the list would have been prepared on the basis of the marks obtained by the candidates, irrespective of their category whether they belong to General, SC/ST, OBC, MBC & EWS, all those candidates belonging to SC, OBC (NCL), MBC (NCL) & EWS, who obtained more than the cut-off marks of the General category, would have been included in the General category only, resulting in ouster of many General category candidates. 9.17 The Constitution Bench of the Hon’ble Supreme Court in the case of Indra Sawhney and Others Versus Union of India and Others (Supra) in para 418 of its decision laid down the principle that various provisions in the Constitution relating to reservation, therefore, acknowledge that reservation is an integral part of the principle of equality where inequalities exist. The objective of providing reservation to certain class, according to constitutional mandate enshrined under Article 16(4) of the Constitution of India, is to ensure that equality for unequal is secured by treating them equally through positive discrimination or affirmative action. Therefore, certain percentage of posts in public employment are reserved for various disadvantageous class as affirmative action. But where a reserve category candidate secures equal or higher merit, he cannot be denied equality of treatment merely on the basis that he belongs to reserve category. Such a classification is not with the objective of providing reservation, but results in excluding a more meritorious reserve category candidate only for the reason that he belongs to reserve category. Such a classification is neither intended to fulfill the objective of reservation, nor the rule of equality based on merit. Thus, the very foundation is unconstitutional. 9.18 In the Constitution Bench judgment of the Hon’ble Supreme Court in the case of Indra Sawhney and Others Versus Union of India and Others (Supra), it was propounded as below:- “811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. Thus, the very foundation is unconstitutional. 9.18 In the Constitution Bench judgment of the Hon’ble Supreme Court in the case of Indra Sawhney and Others Versus Union of India and Others (Supra), it was propounded as below:- “811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” In the aforesaid case, a situation where a candidate belonging to reserve category candidate gets selected in the open competitive field on the basis of his own merit was taken into consideration. It was observed that such selected candidates will not be counted against the reserved quota for SC and will be treated as open competitive candidates. The aforesaid observations made by the Hon’ble Supreme Court in a Constitution Bench judgment in the case of Indra Sawhney and Others Versus Union of India and Others (Supra) became foundation for migration rule. In a later decision of the Hon’ble Supreme Court in the case of R. K. Sabharwal and Others Versus State of Punjab and Others, (1995) 2 Supreme Court Cases 745 also, the same principle was reiterated. Since then, the aforesaid principle has been succinctly stated and has been affirmed and re-affirmed. 9.19 A three Judge Bench of the Hon’ble Supreme Court in the case of Saurav Yadav and Others Versus State of Uttar Pradesh and Others, (2021) 4 Supreme Court Cases 542, was dealing with an aspect of migration of reserve category candidate to Open category based on merit. The principle which was authoritatively pronounced was as below:- “26. The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in “Open or General Category” is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. Apart from the extracts from the decisions of this Court in Indra Sawhney (Supra) and R. K. Sabharwal (Supra) the observations by the Constitution Bench of this Court in Shri V. V. Giri vs. D. Susi Dora and Others, AIR 1959 SC 1318 , though in the context of election law, are quite noteworthy: (AIR p.p. 1326-27, para 21-22) “21. … In our opinion, the true position is that a member of a Scheduled Caste or Tribe does not forego his right to seek election to the general seat merely because he avails himself of the additional concession of the reserved seat by making the prescribed declaration for that purpose. The claim of eligibility for the reserved laims have to be decided on the basis that there is one election from the double-member constituency. 22. In this connection we may refer by way of analogy to the provisions made in some educational institutions and universities whereby in addition to the prizes and scholarships awarded on general competition amongst all the candidates, some prizes and scholarships are reserved for candidates belonging to backward communities. In such cases, though the backward candidates may try for the reserved prizes and scholarships, they are not precluded from claiming the general prizes and scholarships by competition with the rest of the candidates.” x………...x………..x……….x………..x………..x………..x……….x 38. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected. 39. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court. x………...x………..x………..x……...x……….x……...x……..x 61. The open category is not a ‘quota’, but rather available to all women and men alike. Similarly, as held in Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 , there is no quota for men. If we are to accept the second view [as held by the Allahabad High Court in Ajay Kumar v. State of UP, 2019 SCC OnLine All 2674 and the Madhya Pradesh High Court in State of M.P. v. Uday Sisode, 2019 SCC OnLine MP 5750, referred to in paras 24 & 25 of Lalit, J.’ Judgment], the result would be confining the number of women candidates, irrespective of their performance, in their social reservation categories and therefore, destructive of logic and merit. The second view, therefore–perhaps unconsciously supports-but definitely results in confining the number of women in the select list to the overall numerical quota assured by the rule. x.……….x……...x……...x……….x……….x……...x……….x……...x 66. I would conclude by saying that reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.” 9.20 The law declared is that reservations are method of ensuring representation and not to be seen rigid “slots”, where a candidate’s merit, which otherwise entitles him/her to be shown in the Open/General category is foreclosed by confining candidate of a reserve category to his rigid “slots”, even though, he is more meritorious, that would result in a communal reservation. This would negate merit. It has been reiterated as a settle principle laid down by the Hon’ble Supreme Court in the cases of Indra Sawhney and Others Versus Union of India and Others (Supra), R.K. Sabharwal and Others Versus State of Punjab and Others (Supra) and several decisions thereafter that the Open category is open to all, and only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type, i.e., Vertical or Horizontal, is available to her/him. 9.21 That is what has been held by the Division Bench of the High Court of Allahabad in the case of U.P. Power Corporation Ltd. & Another Versus Nitin Kumar and Others (Supra) by holding that reservation is a process by which a certain number of posts, or seats is carved out for stipulated categories such as SC/ST, OBC and further that unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserve categories. It has been held therein that an unreserved post or seat is one in which every individual irrespective of the category to which the person belongs can compete in open merit. The law enunciated therein that the principle which is embodied in the recruitment rule applicable in that case that if a person belonging to any of the reserve category is selected on the basis of merit in an open competition of the General candidate, he shall not be adjusted against the vacancies reserved for reserve categories, is not confined in its application only at the stage when the final merit list is to be drawn up as that would result in seriously absurd consequences. That was a case where the candidates belonging to reserve categories had appeared in the written test of the Main Examination and secured marks higher than the General category candidates, yet they were not placed in the Open category resulting in their ouster from the process of selection as they were not allowed to appear in the Interview, the second stage of Main Examination. Similar is the situation in the present case also. The petitioners before this Court are those who could not be included in their respective reserve category list because the cut-off marks in the respective category are very high. Even though, their marks are higher than the marks obtained by a large number of General category candidates, yet they have not been included in the Open category list. This has resulted by treating Open category also as a category reserved only for General category, not allowing more meritorious reserve category candidates to enter and find place therein. It negates merit. 9.22 The Madhya Predesh High Court in the case of Kishore Choudhary Versus State of Madhya Pradesh and Another (Supra) has taken a view which is partly not in accord with consistent view taken by the Division Bench of this Court in the case of Dharamveer Tholia and Others Versus State of Rajasthan and Another (Supra) and series of decisions insofar as preparation of merit list at the stage of Preliminary Examination/Screening Test is concerned. However, the aforesaid decision on principle supports the view taken by the Allahabad High Court in the case of U.P. Power Corporation Ltd. & Another Versus Nitin Kumar and Others (Supra), insofar as preparation of the list of successful candidates after written test in the Main Examination for the purpose of allowing the candidates in the next stage of Main Examination is concerned. Therefore, to that extent only we are in accord with the view taken by the Madhya Predesh High Court in the case of Kishore Choudhary Versus State of Madhya Pradesh and Another (Supra). 9.23 Therefore, exercise of preparing list of Open category candidates in present cases is violative of law laid down by the Hon’ble Supreme Court in the cases of Indra Sawhney and Others Versus Union of India and Others (Supra), R.K. Sabharwal and Others Versus State of Punjab and Others (Supra) & Saurav Yadav and Others Versus State of Uttar Pradesh and Others (Supra). 9.24 However, In view of the decision of the Hon’ble Supreme Court in the case of Saurav Yadav and Others Versus State of Uttar Pradesh and Others (Supra), those reserve category candidates, who have availed of any special benefit which may dis-entitle them from being considered against Open/General category seat, cannot be migrated from their own reserve category to Open/General category on the basis of merit. 9.25 While dealing with the first contention made on behalf of the petitioners that the applicable rules do not contemplate category wise preparation of list and, therefore, the process of short-listing of the candidates category wise after written examination, is contrary to the prescription of the rules, we have analyzed the scheme of the applicable rules and relying upon the decision of the Hon’ble Supreme Court in the case of Chattar Singh and Others Versus State of Rajasthan and Others (Supra), it has been held that preparation of list category wise is implicit and, therefore, it cannot be accepted that the rule does not permit preparation of category wise list after written examination and based on that analogy. Further contention that the process of short-listing after written examination provided under the advertisement is contrary to rules, has also been rejected. Several Supreme Court decisions have been relied upon to hold that those, who had submitted applications and participated in the selection process without challenging the process of selection, have no locus to challenge the selection process after they have been declared successful. 9.26 Though, the petitioners cannot be allowed to challenge category wise preparation of list, in view of above consideration, the principle enunciated above would not come in the way of challenging the action, whereby, while preparing category wise list after written examination, settled principles with regard to inclusion of meritorious reserve category candidates in the Open/General category has not been followed. Present is not a case where the rule or the advertisement expressly provided to the contrary that under no circumstance, more meritorious reserve category candidates would be included in the Open/General category candidates merit list on the basis of their performance in the written examination. Present is not a case where the rule or the advertisement expressly provided to the contrary that under no circumstance, more meritorious reserve category candidates would be included in the Open/General category candidates merit list on the basis of their performance in the written examination. This is so because even where challenge to preparation of list category wise after written examination may not be permissible, it is always open to judicial scrutiny whether the principle of migration of reserve category candidates to Open/General category on the basis of their own merit, subject to the condition that they have not availed of any special benefit which may dis-entitle them from being considered against Open/General category post, has been followed. The respondents’ contention that the petitioners having participated in the process of selection, cannot be allowed to claim that more meritorious reserve category candidates ought to be placed in the General category list and not in their respective reserve category is, therefore, rejected. 9.27 As an upshot of the aforesaid discussion, it is inescapable conclusion that while preparing category wise list after written examination, those reserve category candidates, who had obtained more marks than the cut-off marks arrived at for General category, were required to be included in the Open category list. The law required the respondents to first draw list of General/Open category based on merit. Those reserve category candidates, who were able to compete on the basis of merit, were required to be placed in the Open/General category list being five times the number of vacancies in the Open/General category seats. The reserve category list was required to be drawn only thereafter by including on the basis of merit, reserve category candidates, of course, by excluding those reserve category candidates, who had already been included in the Open/General category list. The action of the respondents in preparing category wise list without adjusting more meritorious reserve category candidates in the Open/General category list and thereby restricting inclusion of the candidates in the Open/General category list only to General category candidates, is in violation of principles laid down in Indra Sawhney and Others Versus Union of India and Others (Supra), R.K. Sabharwal and Others Versus State of Punjab and Others (Supra) & Saurav Yadav and Others Versus State of Uttar Pradesh and Others (Supra). As a result of preparation of list of various categories is in violation of law, all those reserve category candidates, who had obtained marks more than the General category candidates, have remained in their respective list, even though, they obtained higher marks as compared to many General category candidates. Had those more meritorious candidates been included in the Open/General category, it would have paved way for the inclusion of the petitioners either in their respective reserve category or in the Open/General category. In that case, the petitioners, if included in their respective reserve category on account of migration of more meritorious reserve category candidates of their respective category to Open/General category were entitled to appear in the skill test. 9.28 Some of the petitioners in these batch of petitions were allowed to provisionally appear in the skill test, whereas, rest of the petitioners were not allowed. All these petitions were heard and reserve for orders before any appointments were made by the respondents. 9.29 Consequently, all these petitions are disposed off with following directions: (A) Respondents shall undertake an exercise of revision of category wise list by including in the Open/General category list, those candidates of reserve category, who have secured more marks in the written examination provided they have not taken or availed of any special benefit which may dis-entitle them from being considered against Open/General category post. (B) After drawing the Open/General category list, the list of respective reserve category shall be drawn up. (C) If, as a result of aforesaid exercise, it is found that the petitioners herein have been accommodated either in the Open/General category list or there respective reserve category list then: (i) If they have already been allowed to provisionally appear in the Typewriting Test on Computer, subject to they having secured minimum qualifying marks in Typewriting Test, their aggregate marks obtained in the written examination and Typewriting Test shall be drawn up. (ii) Those, who have not been allowed to provisionally appear in the Typewriting Test, they will be entitled to appear in the Typewriting Test and for this purpose, the respondents shall hold Typewriting Test on Computer for such candidates, subject to they having obtained minimum qualifying marks in the Typewriting Test, their aggregate marks obtained in written examination and Typewriting Test shall also be drawn up. (D) The merit list in the Open/General category and the respective reserve category shall be re-worked. If the petitioners herein are included either in the Open/General category list on the basis of their merit, they shall be offered appointment against posts in General/Open category, subject to the condition that they are fulfilling all other requirements. Similarly, those petitioners, who have been able to secure a place in the merit list of their respective reserve category would be offered appointment against posts in their respective reserved category, subject to fulfilling all other conditions. (E) It goes without saying that while undertaking revision of the list, provisions contained in (i) to (v) under Section B of Clause 15 of the advertisement shall have to be followed. (F) If no vacant posts are available, less meritorious candidates, who have been appointed in Open category or reserve category, as the case may be, are required to be terminated. 9.30 Aforesaid directions are being issued as the appointments were not made till the date of conclusion of hearing. A copy of this order be placed on record of each connected petition.