Gaurav Pradhan And Ors. vs The State Of Rajasthan And Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8351 OF 2017 (ARISING OUT OF SLP(C) NO. 30603 OF 2014)

GAURAV PRADHAN & ORS. … APPELLANTS

VERSUS

STATE OF RAJASTHAN & ORS. … RESPONDENTS WITH

CIVIL APPEAL NO.7656 OF 2017 (ARISING OUT OF SLP(C) NO.34216 OF 2014)

SACHIN SHARMA AND ORS. … APPELLANTS

VERSUS

STATE OF RAJASTHAN & ORS. … RESPONDENTS WITH CIVIL APPEAL NO. 5305 OF 2015

IRFAN KHAN … APPELLANT VERSUS

STATE OF RAJASTHAN & ORS. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Signature Not Verified Digitally signed by In these appeals appellants challenge the NIDHI AHUJA Date: 2017.08.18 17:46:00 IST Reason:

common judgment dated 16.01.2014 of the Rajasthan 2

High Court deciding a batch of Special Appeals

which arose out of judgment of learned Single

Judge dated 27.04.2012 delivered in SB Civil Writ

Petition No.15152 of 2011 and other connected

matters and judgment dated 08.11.2013 in SB Civil

Writ Petition No.4811 of 2013 and other connected

matters. The judgment dated 27.04.2012 pertains to

selection to various posts of constables whereas

judgment dated 08.11.2013 pertains to selection on

the post of Sub­Inspector of Police. The judgment

dated 08.11.2013 was delivered following the

earlier judgment dated 27th April, 2012. A large

number of Special Appeals were filed against the

aforesaid two judgments which were decided by the

Division Bench by a common judgment dated

16.01.2004 which judgment is subject matter of

these appeals.

2. Brief facts of the case which are necessary to

be noted for deciding these appeals are: 3

The Rajasthan Police Subordinate Service

Rules, 1989 has been framed by the State of

Rajasthan for recruitment on various posts in the

Police Establishment. Part III of the Rules

provides for recruitment and Rule 7 provides

reservation of vacancies for the Scheduled Casts

and the Scheduled Tribes. The State Government had

from time to time issued various orders/circulars

providing for reservation as well as methodology

for giving effect to the reservation. Circulars

dated 17.06.1996, 04.03.2002 and 24.06.2008 were

issued by the State Government providing for

reservation.

3. The Rajasthan Public Service Commission issued

an advertisement dated 14.10.2010 inviting

applications for selection on various posts of

constables. On 25.10.2010 another advertisement

was issued by the Rajasthan Public Service

Commission for selection on the post of Sub

Inspector of Police. The selection process for the 4

posts of constables as well as post of Sub

Inspector of Police comprised of the different

stages. During process of selection, the State

Government issued a circular dated 11.05.2011

providing that candidates of BC/SBC/SC/ST

irrespective of whether they have availed of any

concession including relaxation in age shall be

migrated against open category vacancies if they

have secured more marks than the last candidate

of open category. Select list of constables was

issued on 01.07.2011 whereas result of Sub

Inspector of Police was issued on 25.02.2013.

Various writ petitions were filed by the general

category candidates where they have questioned the

circular dated 11.05.2011 and preparation of

select list accordingly. The case of the general

category candidates was that those reserved

category candidates who have taken concession of

relaxation of age in competition for post of

constable/SI of Police cannot be migrated to 5

general category vacancies. Learned Single Judge

decided Special Writ Petitions vide judgment dated

27.12.2012 taking view that circular dated

11.05.2011 is not applicable since the recruitment

process had began prior to circular 11.05.2011. It

was held that migration of reserved category

candidates to open/general category can be

permitted as per earlier circular dated

24.06.2008. With regard to circular dated

11.05.2011, it was held that the said circular

needs to be given proper interpretation. Learned

Single Judge held that only those who have taken

benefit of concession of fee and not the

relaxation in age during the process of selection

would be allowed to migrate to open/general

category if obtained equal or more marks to the

last candidate in open/general category. As noted

above, other group of writ petitions was decided

by the Single Judge vide judgment dated 08.11.2013

following the judgment dated 27.04.2012. 6

4. The Division Bench disposed of all the

Special Appeals by modifying the judgment of

learned Single Judge dated 27.04.2012 and

08.11.2013 to the extent that the relaxation in

age having been availed by candidates of reserved

category who find place in the select list on dint

of merit of general/open category vacancies,

deserve to be migrated against general/open

category vacancies. However, candidates availing

special relaxation/concessions while participating

in competitive test/process of selection, if find

place in select/merit list of general/open

category vacancies, they are not eligible to be

migrated against open/general category vacancies.

Aggrieved by the aforesaid judgment all these

appeals have been filed.

5. We have heard learned counsel for the

appellants and learned counsel appearing for the

State of Rajasthan as well as learned counsel

appearing for private respondents. 7

6. Shri Sushil Kumar Jain, learned senior counsel

for the appellants in support of the appeals

contends that the reserved category candidates who

had participated in the selection after obtaining

the benefit of relaxation in age cannot be allowed

to be treated in the open/general category and as

per the Government circular dated 24.06.2008 such

candidates have to be treated in the reserved

category candidates. He submits that circular

dated 11.05.2011 reversing the earlier provision

for migration in the general/open category was not

applicable in the present case since the

advertisements were issued much before the

aforesaid circular and the recruitment process had

begun. It is submitted that the judgment relied on

by the Division Bench in coming to the conclusion

that relaxation in age does not prohibit the

reserved category candidates from migrating the

open/general category quota are not applicable in

the facts of the present case. Shri Jain submits 8

that the issue raised in these appeals is fully

covered by the judgment of this Court dated 6th

April, 2017 in C.A.No.3609 of 2017, Deepa E.V. vs.

Union of India and ors. It is submitted that in

view of the judgment of this Court in Deepa E.V.,

the appeals deserve to be allowed setting aside

the judgment of the Division Bench and restoring

that of learned Single Judge.

7. Shri Ajay Choudhary, learned counsel for the

State of Rajasthan has supported the judgment of

the Division Bench. He contends that relaxation of

age does not debar the reserved category

candidates in migrating to the general/open

category quota, in the event, they have secured

more marks to last general category candidate. It

is submitted that circular dated 11.05.2011 is

fully applicable in this recruitment. He further

submits that judgment of this Court in K.

Manjusree vs. State of Andhra Pradesh, 2008(3) SCC

512, has been referred to a larger bench of this 9

Court in Tej Prakash Pathak and others vs.

Rajasthan High Court and others, 2013(4) SCC 540.

Hence, the jugement of this Court in K. Manjusree

need not be relied on.

8. Shri Choudhary further contends that

relaxation in age being permissible in accordance

with the Rajasthan Police Subordinate Service

Rules, 1989 to the reserved category candidates,

they are entitled to be counted in the

general/open category, in the event, they have

secured more marks to the last general category

candidate. It is submitted that appointment

letters have been issued to the reserved category

candidates in accordance with the merit list as

per circular dated 11.05.2011.

9. Learned counsel appearing for respondent Nos.6

to 9 supported the judgment of the Division Bench.

He further submitted that all the private

respondents have been appointed on the respective 10

posts and they are working for the last about four

years. He further submits that even circular dated

24.06.2008 recognises that candidates belonging to

reserved category shall be selected if they have

obtained more than general category even if it

leads to selection of more candidates than that

provided by virtue of reservation. He has relied

on latter part of paragraph 6.2 of circular dated

24.06.2008.

10. Learned counsel for the appellants has also

brought on record circular dated 26.07.2017 issued

by the Government of Rajasthan in the light of the

judgment of this Court in Deepa E.V.(supra). The

State Government by circular dated 26.07.2017 has

reiterated that if a candidate belonging to

SC/ST/BC has not availed of any of the special

concessions such as in age­limit, marks, physical

fitness etc. in the recruitment process, which are

available to the candidates belonging to these

categories, except the concession of fees, and 11

secure more marks than the marks obtained by the

last unreserved category candidate who is

selected, such a candidate belong to the SC/ST/BC

shall be counted against the unreserved category

vacancies and not the vacancies reserved for the

SC/ST/BC.

11. Learned counsel for the appellants has further

submitted that there are large number of vacancies

still lying vacant on which the appellants can be

appointed. They submit that the appellants were

denied the appointment illegally whereas they were

fully entitled for appointment. Hence, this Court

may direct the State to appoint the appellants on

existing vacancies. Learned counsel for the State

has, however, refuted the submission of the

appellants regarding existence of vacancies.

12. We have considered the submissions of the

parties and perused the records. From the

submissions of the learned counsel for the parties 12

and materials on record the following issues

arise for consideration in these appeals:

(1) Whether the reserved category candidates

who had taken benefit of age relaxation in the

selection in question and have obtained marks

equal or more to last general category

candidate would be treated in the general/open

category candidates or ought to have been

confined in the reserved category candidates.

(2) Whether the circular dated 11.05.2011

issued by the State Government changing the

criteria for migrating reserved category

candidates into general category candidates

can be applied in respect to the selection

which had already began on issuance of

advertisements dated 14.10.2010 and

25.10.2010.

13. The statutory Rules have been framed, namely,

the Rajasthan Police Subordinate Service Rules, 13

1989. The Rules provide for composition and

strength of the service, methods of recruitment,

procedure for direct recruitment and other

relevant matters. Rule 7 provides for reservation

of vacancies for the Scheduled Castes and the

Scheduled Tribes. Rule 7 which is relevant for

this case is as follows:

"7. Reservation of vacancies for the Scheduled Cases and the Scheduled Tribes­ (1) Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion.

…. …. …. …. …

…. …. …. …. ...”

14. As per Rule 7(1) orders were issued by the

State of Rajasthan from time to time providing for

reservations and matters connecting therewith. In

the present case we are only concerned with the

question of migration of reserved category

candidate into general/open category candidate.

14 Hence, it is sufficient to note the relevant

orders issued by the Government in the above

context. The 1989 Rules do not contain any

provision regarding migration of reserved category

candidates into general/open category candidates,

but the Government orders which were referable to

Rule 7(1) do provide the criteria and basis for

such migration. The circular dated 24.06.2008 was

the last circular on the subject prior to

initiation of recruitment process. Para 6.2 of the

circular dated 24.06.2008 which has also been

extracted by the Division Bench of the High Court

is to the following effect:

“Circular dated 24.06.2008 6.2 In the state, members of the SC/ST/OBC can compete against non­reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.” 15

15. It is also relevant to notice that during the

process of selection, the Government issued

circular on 11.05.2011 in supersession of earlier

circular dated 04.03.2002. Before we notice

circular dated 11.05.2011, it is relevant to note

circular dated 04.03.2002 which is to the

following effect:

"Circular dated 04.03.2002

(a) If a candidate belonging to OBC/SC/ST has not availed of any of the special concessions which are available to the candidates belonging to these categories except the concession of fees, and he secures more marks than the marks obtained by the last general category candidate who is selected, such a candidate belonging to OBC/SC/ST shall be counted against the general category vacancies and not the vacancies reserved for the OBC/SC/ST, as the case may be.

(b) If any SC/ST candidate gets selected against the general category vacancies on the basis of his merit without availing of any of the special concessions which are available to the candidates belonging to these categories, except the concession of fees,such a 16

SC/ST candidate, as the case may be, for all further service matters including further promotions and all the benefits which are admissible to the other SC/ST persons under the various service rules/ Government instructions shall be admissible to them.”

16. Now we come to circular dated 11.05.2011 by

which the earlier methodology of treating the

reserved category candidates into general category

candidates has been fully changed. Circular dated

11.05.2011 provides:

"Circular dated 11.05.2011 In super­session of this department circular of even number dated 04.03.2002 on the above­mentioned subject, the matter has been examined in consultation with Law Department, the following clarifications are here by issued for the guidance of all Appointing Authorities:­

(a) If a candidate belonging to BC/SBC/SC/ST irrespective of whether he has availed of or not any of the special concessions which are available to the candidate belonging to these categories and he secures more marks than the marks obtained 17

by the last unreserved category candidate who is selected, such a candidate belonging to BC/SBC/SC/ST shall be counted against the unreserved category vacancies and not the vacancies reserved for the BC/SBC/SC/ST, as the case may be.

… … … … … … … … … …”

17. The Government orders were issued by the State

of Rajasthan as contemplated by Rule 7(1) of 1989

Rules which were in operation at the time of

initiation of process of recruitment by Government

orders dated 14.10.2010 and 25.10.2010. The

Government orders provided that reserved category

candidate who have taken any concession like age

relaxation was not entitled to be migrated into

the general/open category and only those reserved

category candidates who have not taken any

concession apart from concession of fee was

entitled to be migrated into general/open

category. The Division Bench of the High Court has

after noticing all the relevant circulars on the 18

subject has itself recorded a finding to the above

effect. It is relevant to refer to the aforesaid

finding which is to the following effect:

"Circulars issued by State Government from time to time, are nothing more than guidelines issued for being followed by recruiting agencies/competent authority while filling up the vacancies of direct recruitment/promotion in service of the Government.

In later circular of 2008, the State Government further made it clear that members of SC/ST/OBC can compete against non­reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) available to them other than that relating to payment of examination fee in case of direct recruitment.

This consistency was followed by State Government in its standing order No.5/2010 dated 07.10.2010 followed for recruitment to the post of Constable notified vide advertisement dated 25/11/2010.

The State Government through out from June, 1996 consistently in its later circulars issued in March, 2002. June, 2008, October, 2010 (Standing Order No.5/2010) as per its policy decision directed that 19

the candidates belonging to SC/ST/OBC can compete against non­reserved vacancies provided they have not availed special concessions (like age etc.) other than examination fees.

However, there was a deviation in its later circular dated 11/05/2011 issued in the form of clarification laying down guidelines for the recruiting agency/authorities in supersession of its earlier circulars/directions and the State Government was of the view that candidates belonging to reserved category (BC/SBC/SC/ST) irrespective of having availed any of the special concessions (including of age) etc. which are available to the candidates belonging to the reserved categories, secure bench mark prescribed for general/open category candidates if selected, such a reserved category SC/ST/SBC candidate shall be counted against unreserved/open category seats.”

18. A perusal of impugned judgment of the

Rajasthan High Court indicates that the Division

Bench relying on following has formed its opinion:

“(a) Earlier judgments of Rajasthan High Court, namely, 20 Chandra Bhan Yadav vs. State of Rajasthan, (2009) 2 WLC (Raj.) 454 and judgment of Single Judge in Mangala Ram Bishnoi & others vs. State, 2011 (1) WLC 148;

(b) Judgment of this Court in Jitendra Kumar Singh vs. State of U.P., 2010 (3) SCC 119; and

(c) Circular dated 11.05.2011 of the State Government.”

19. Judgment of learned Single Judge in Chandra

Bhan Yadav (supra) was a judgment where circulars

issued by the State Government which are referable

to Rule 7(1) of 1989 Rules relevant in the context

of selection in question, were neither referred to

nor considered. The learned Single Judge only

relied on the judgments laying down that reserved

category candidates selected in open competition

shall not be counted in reserved quota and they

shall be treated as open category candidates.

There cannot be any dispute with the general

proposition which stands well settled as laid down

by nine Judge Bench in Indra Sawhney and others 21

vs. Union of India and others, 1997 Suppl. SCC

217. This Court in paragraph 811 laid down the

following:

“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.”

20. The another judgment of learned Single Judge

relied on in the impugned judgment in Mangala Ram

Bishnoi (supra) was a judgment where the learned

Single Judge has placed heavy reliance on the

judgment of Jitendra Kumar Singh (supra). The

circular of the State Government dated 04.03.2002

as applicable was considered in paragraph 34. But

learned Single Judge, held that in view of the law

laid down by this Court in Jitendra Kumar Singh

(supra) circular dated 4.3.2002 does not remain 22

operative. We thus need to look into the judgment

of this Court in Jitendra Kumar Singh's case

(supra). The Division Bench further held that

since the judgment of Mangala Ram Bishnoi(supra)

which was judge made law was holding field, the

State Government was required to permit migration

of the reserved category candidates having

obtained age relaxation into general category

candidates and no exception can be taken in

following the circular dated 11.05.2011.

21. As noted above, nine Judge Constitution Bench

had laid down that if the members belonging to the

reserved category 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 Casts and they would be

treated as open competition candidates. In Post

Graduate Institute of Medical Education &

Research, Chandigarh and others vs. K.L. 23

Narasimhan and another, 1997(6) SCC 283, a three

Judge Bench of this Court in paragraph 5 has laid

down the following:

“5....It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.”

22. Article 16 sub­clause (4) of the Constitution

of India is an enabling provision empowering the

State for making any provision for the reservation

of appointments or posts in favour of any backward

class of citizens which, in the opinion of the

State, is not adequately represented in the

services under the State. The orders issued by the

State Government from time to time were the orders

contemplated by Article 16 sub­clause (4). It is

well settled by nine Judge Constitution Bench that 24

reservation in favour of backward classes can be

provided by a State Government by an executive

order also.

23. The reservation being the enabling provision

the manner and extent to which reservation is

provided has to be spelled from the orders issued

by the Government from time to time. In the

present case there is no issue pertaining to the

extent of reservation provided by the State

Government to the SC, ST and OBC candidates. The

issue involved in the present case is as to

whether the reserved category candidates can be

allowed to be migrated into general category

candidates. The reservation is wide enough to

include exemption, concession etc. The exemption,

concession etc. are allowable to the reserved

category candidates to effectuate and to give

effect to the object behind Article 16 sub­clause

(4) of the Constitution of India. The State is 25

fully empowered to lay down the criteria for grant

of exemption, concession and reservation and the

manner and methodology to effectuate such

reservation. The migration of reserved candidates

into general category candidates is also part and

parcel of larger concept of reservation and the

Government orders issued on 17.06.1996, 04.03.2002

and 24.06.2008 were the Government orders

providing for methodology for migration of

reserved category candidates into general category

candidates which was well within the power of

State. Neither before us nor even before the High

Court the aforesaid Government orders, last being

24.06.2008, were under challenge. As noted above,

the High Court itself has returned a finding that

earlier methodology of providing for migration of

reserved category candidates into general category

candidates was reversed by order dated 11.05.2011

by which despite taking any special concession 26

reserved category candidates could be migrated

into general category candidates.

24. Now we come to the judgment of this Court in

Jitendra Kumar Singh vs. State of U.P., 2010 (3)

SCC 119. In the above case also the question which

had come up for consideration was as to whether

reserved category candidates who have taken the

age relaxation and secured more marks to the last

candidate in the general category candidate should

be treated to be in general category. In para 23

the issue which was involved in the case was noted

in the following words:

“23. We have heard the learned counsel for the parties. Mr L.N. Rao, learned Senior Counsel appearing on behalf of the appellants submitted that the cardinal issue raised in these appeals is whether the reserved category candidates who had taken the benefit of age or fee relaxation, are entitled to be counted as general category candidates. According to the learned Senior Counsel, the Division Bench has erred in law in concluding that 27

relaxation in age and fee cannot be treated to be relaxation in standard of selection and shall not deny a reserved category candidate’s selection in open competition with general category candidate.”

25. This Court had considered the above issue in

the context of U.P. Public Services (Reservation

for Scheduled Casts, Scheduled Tribes and Other

Backward Classes) Act, 1994. Section 3 of the Act

provided for reservation in favour of ST, SC and

other backward classes. Section 3 sub­Section (6)

of 1994 Act provided as following :

"Section 3. Reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes.­

(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentages of vacancies to which recruitments are to be made in accordance with the roster referred to in sub­section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, ­ 28

(a) in the case of Scheduled Castes twenty-one per cent;

(b) In the case of Scheduled Tribes two per cent;

(c) in the case of Other Backward twenty-seven per cent;

Classes of citizens

Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II.

… … … … … …

(6) If a person belonging to any of the categories mentioned in sub­section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub­section(1).

… … …”

26. The State of U.P. issued instructions dated

25.3.1994 which have been extracted in paragraph

72 of the judgment. Para 72 stated below:

“72. Soon after the enforcement of the 1994 Act the Government issued Instructions dated 25­3­1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and other 29

backward groups in the Uttar Pradesh Public Services. These instructions, inter alia, provide as under:

“4. If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age­limit) available to reserved category.”

From the above it becomes quite apparent that the relaxation in age­limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. main written test followed by interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub­section (2) of Section 8 further provides that government orders in force on the 30

commencement of the Act in respect of the concessions and relaxations including relaxation in upper age­ limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked.”

27. The last line of the the Government

instructions dated 25.03.1994 as quoted above

provided “It shall be immaterial that he has

availed any facility or relaxation (like

relaxation in age­limit) available to reserved

category”.

28. The provisions of Section 3 sub­Section (6) of

1994 Act read with instructions dated 25.3.1994

clearly meant that grant of age relaxation to

reserved category candidate does not militate

against him being treated as general category

candidate if he has obtained more marks than the

last general category candidate. This Court in

the above case has also made general observation 31

specially in para 75 which is to the following

effect:

“75. In our opinion, the relaxation in age does not in any manner upset the “level playing field”. It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfil the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test.

32 It is only thereafter that successful candidates have been permitted to participate in the open competition.”

29. The ratio of the judgment in Jitendra Kumar

Singh has to be read in the context of statutory

provisions and the Government orders dated

25.3.1994 and the said observation cannot be

applied in a case where the Government orders are

to the converse effect. As noted above State of

Rajasthan has issued circular dated 24.06.2008

where following is provided in para 6.2:

“Circular dated 24.06.2008

6.2 In the state, members of the SC/ST/OBC can compete against non­reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.”

30. It is relevant to note that in the case before

us circular dated 24.06.2008 was not under 33

challenge. The State has come up with circular

dated 11.05.2011 which was issued during process

of recruitment. The Division Bench has already

recorded a finding that recruitment process had

begun prior to circular dated 11.05.2011. The

State clearly provided that candidates belonging

to reserved category irrespective of having

availed any of the special concessions secure

bench mark prescribed for general/open category

candidates if selected, such a reserved category

candidate shall be counted against unreserved/open

category candidates.

31. We are of the view that judgment of this Court

in Jitendra Kumar Singh which was based on

statutory scheme and circular dated 25.03.1994 has

to be confined to scheme which was under

consideration, statutory scheme and intention of

the State Government as indicated from the said

scheme cannot be extended to a State where the 34

State circulars are to the contrary especially

when there is no challenge before us to the

converse scheme as delineated by circular dated

24.06.2008.

32. In a recent judgment this Court has occasion

to consider the judgment of this Court in Jitendra

Kumar Singh case. Learned counsel for the

appellants has placed much reliance on the

judgment of this Court dated 6th April, 2017 in

C.A. No.3609 of 2017, Deepa E.V. vs. Union of

India. It is necessary to notice the facts of the

case and the issues decided by this Court in Deepa

E.V. The appellants before this Court was an OBC

category candidate who claimed that she should be

treated as general category candidate. The

appellant had availed the age relaxation as OBC

category candidate. A writ petition was filed by

the appellant claiming that she should be treated

as candidate in general category. The learned 35

Single Judge dismissed the writ petition by

judgment dated 16.01.2015 which judgment was

affirmed by the Division Bench in the writ appeal.

In paragraph 2 of the judgment facts were noted

to the following effect:

“2. The appellant applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India. The appellant belongs to Dheevara community which is one of the “Other Backward Class”. Since the appellant was aged 26 years, she got age relaxation, as was granted to OBC category candidates. The appellant was one of the eleven candidates from OBC who were called for interview. The appellant secured 82 marks (in the list of candidates from OBC category). One Ms. Serena Joseph (OBC), who secured 93 marks was selected and appointed.”

33. In paragraph 5 of the judgment this Court has

noticed Rule 9 of the Export Inspection Agency

(Recruitment) Rules, 1980 which governs the

recruitment. The Department of Personnel and

Training had issued circulars dated 22.05.1989 and 36

01.07.1998 for recruitment to various posts and in

paragraph 6 of the judgment the entire circular

has been extracted. Paragraph 6 of the judgment is

extracted below:

“6. Department of Personnel and Training had issued proceedings O.M. No.36012/13/88­Estt. (SCT), dated 22.5.1989 and OM No.36011/1/98­Estt.

(Res.), dated 1.7.1998 laying down stipulation to be followed by the various Ministries/Department for recruitment to various posts under the Central Government and the reservation for SC/ST/OBC candidates. The proceedings reads as under:­

“G.I. Dept. of Per. & Trg., O.M. No. 36012/13/88­Estt. (SCT), dated 22.5.1989 and OM No.36011/1/98­Estt. (Res.), dated 1.7.1998

“Subject:­ Reserved vacancies to be filled up by candidates lower in merit or even by released standards­candidates selected on their own merits not to be adjusted against reserved quota.”

As part of measure to increase the representation of SC/ST in the services under the Central Government, the Government have reviewed the procedure for implementation the policy of reservation while filling up reserved share of vacancies for Scheduled Castes and 37

Scheduled Tribes by direct recruitment. The practice presently 3 Page 4 being followed is to adjust SC/ST candidates selected for direct recruitment without relaxation of students against the reserved share of vacancies. The position of such SC and ST candidates in the final select list, however, was determined by their relative merit as assigned to them in the selection process. When sufficient number of suitable Scheduled Caste and Scheduled Tribe candidates were not available to fill up all the reserved share of vacancies, SC/ST candidates were selected by relaxed standards.

2. It has now been decided that in cases of direct recruitment to vacancies in posts under the Central Government, the SC and ST candidates who are selected on their own merit, without relaxed standards along with candidates belonging to the other communities, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible SC and ST candidates which will thus comprise SC and ST candidates who are lower in merit than the last candidate on the merit list but otherwise found suitable for appointment even by relaxed standards, if necessary.

3. All Ministries/Departments will immediately review the various Recruitment Rules/Examination Rules to ensure that if any provision is contrary to the decision contained in previous paragraph exist in such rules, they are immediately suitably modified or deleted.

4. These instructions shall take immediate effect in respect of direct recruitment made hereafter. These will also apply to selections where though the recruitment process has started, the result have not yet been announced unless in the 38

Examination/Recruitment Rules or in the advertisement notified earlier there is a specific provision to the contrary and the manner in which the SC/ST vacancies could be filled has been indicated.

Clarification:­ The instructions contained in the above OM apply in all types of direct recruitment whether by written test alone or written test followed by the interview alone.

2. The above OM and the O.M. No.36012/2/96­Estt.(Res.), dated 2.7.1997 provide that in cases of direct recruitment, the SC/ST/OBC candidates who are selected on their own merit will not be adjusted against reserved vacancies. 3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age­limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.” (Underlining added)”

34. After reading Rule 9 as well as circular dated

01.07.1998 this Court held that there is express

bar for candidates belonging to SC, ST and OBC 39

having availed relaxation to be considered as

general category candidates.

35. In Deepa E.V. reliance was also placed on

Jitendra Kumar Singh. This Court considered the

case of Jitendra Kumar Singh and the circular

dated 25.03.1994 issued by the State of U.P. which

come up for consideration in Jitendra Kumar

Singh. This Court in Deepa E.V. has distinguished

Jitendra Kumar Singh in paragraphs 8, 9 and 10

which is to the following effect:

“8. Learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh and Another v. State of Uttar Pradesh and Others, reported in (2010) 3 SCC 119, which deals with the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Government order dated 25.3.1994. On a perusal of the above judgment, we find that there is no express bar in the said U.P. Act for the candidates of SC/ST/OBC being considered for the posts under General Category. In such facts and circumstances of the said case, this Court has taken the 40

view that the relaxation granted to the reserved category candidates will operate a a level playing field. In the light of the express bar provided under the proceedings dated 1.7.1998 the principle laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand.

9. Learned senior counsel appearing for the respondents has also drawn our attention to paragraph Nos.65 and 72 in Jitendra Kumar Singh (supra) to contend that principle in Jitendra Kumar Singh (supra) are in the context of interpretation of U.P. Act 1994 and in the particular factual situation of the said case.

Paragraphs 65 and 72, read as under:­

“65. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned with the interpretation of the 1994 Act, the Instructions dated 25.3.1994 and the G.O. dated 26.2.1999.

The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus becoming eligible to be considered against a reserved 41

vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category.

72. Soon after the enforcement of the 1994 Act the Government issued instructions dated 25.3.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and other backward groups in the Uttar Pradesh Public Services.

These instructions, inter alia, provide as under:­

"4. If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category."

From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate 42

to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination.

Sub­section (2) of Section 8 further provides that Government Orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked.”

10. Having regard to the observations in paragraphs 65 and 72, in our view, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand. As rightly pointed out by the High Court that judgment in Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994 and Government order dated 25.3.1994 which provides for entirely a different scheme.” 43

36. The judgment of this Court in Deepa E.V. fully

supports the case of the appellants. In Deepa E.V.

case also circular of the Central Government dated

01.07.1998/02.7.1997 provided the relevant

provision which is to the following effect:

“6....In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age­limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.”

37. The contents of the above circular which

speaks age relaxation and makes reserved category

candidates ineligible to be treated into general

category candidates is same as in para 6.2 of

circular dated 24.06.2008 as noted above which is 44

applicable in the present case. Case of Jitendra

Kumar Singh is distinguishable with the present

case as has been distinguished by this Court in

Deepa E.V. case.

38. After the judgment of this Court in Deepa

E.V. (supra), the State of Rajasthan has issued

circular dated 26.07.2017 in the light of the

judgment passed by this Court in Deepa E.V. By

circular dated 26.07.2017 directions have been

issued to all the Appointing Authorities. It is

useful to refer to the circular dated 26.07.2017

which is to the following effect:

"CIRULAR

Subject: Treatment to be given to the candidates belonging to the SC/ST/BC who are selected against reserved category vacancies on the basis of their merit.

In supersession of this departments circular even number dated 04.03.2014 on the above­mentioned subject, the matter has been examined in consultation with the Law Department in the light of judgment passed by the Hon'ble Supreme Court in Civil Appeal 45

No.3609 of 2012­Deepa E.V. V/s Union of India and Ors. Dated 06.04.2017, following instructions are hereby issued for the guidance of all Appointing Authorities:­

(a) Of a candidate belonging to SC/ST/BC has not availed of any of the special concessions such as in age­limit, marks, physical fitness etc. in the recruitment process, which are available to the candidates belonging to these categories, except the concession of fees, and he secures more marks than the marks obtained by the last UR category candidate who is selected, such a candidate belonging to the SC/ST/BC shall be counted against the UR category vacancies and not the vacancies reserved for the SC/ST/BC, as the case may be.

(b) If any SC/ST candidate gets selected against the UR category vacancies on the basis of his merit without availing of any of the special concessions which are available to the candidates belonging to these categories, except the concession of fees, such a SC/ST candidate will be treated as a SC/ST candidate, as the case may be, for all further services matters, including further promotions, and all the benefits which are admissible to the other SC/ST persons under 46

the various service rules/ government instructions shall be admissible to them.

(c) The SC/ST/BC category candidates who get selected against UR category vacancies on the basis of their merit without availing of any o the special concessions which are available to the candidates belonging to those categories, except the concession of fees, will not be counted against the posts reserved for these categories when it comes to the question of determining the total number of posts occupied by the candidates of these categories in the particular post/cadre.”

39. Circular dated 26.07.2017 is the reiteration

of earlier position as was provided by circular

dated 24.06.2008 quoted above. Thus, the position

is now well accepted even by State of Rajasthan

that those candidates belonging to SC/ST/BC who

have obtained concession of age are not eligible

to be migrated to the unreserved vacancies.

Circular dated 24.06.2008 being very much in

existence, law laid down by this Court in Deepa 47

E.V. holds the field and the State of Rajasthan

was obliged to not migrate those SC/ST/BC

category candidates who are in unreserved

category, who have taken concession of age.

40. At this stage, one of the submissions raised

by the learned counsel for respondent Nos.6 to 9

needs to be considered. Learned counsel for

respondent Nos.6 to 9 referring to paragraph 6.2

of circular dated 24.06.2008 has emphasised on

following part of circular dated 24.06.2008:

"6.2.....On the other hand, women, persons with disabilities, sports persons, in­servicemen or non­gazetted employees and ex­servicemen are counted against their respective category, even if they are suitable for selection against non­reserved or open competition vacancy/post. But it may be noted that if any remaining candidate of these categories after providing the vacancies/posts reserved for them are more meritorious than the last person of the open competition category, such candidate will be selected even if it leads to selection of more 48

candidates than that provided by virtue of reservation.......”

His submission is that if members of the

SC/ST/OBC are more meritorious than the last

person of the open competition category, such

candidate will be selected even if it leads to

selection of more candidates than that provided by

virtue of reservation. The above submission of the

learned counsel for respondent Nos.6 to 9 is not

based on correct reading of paragraph 6.2. The

opening part of paragraph 6.2 clearly states

following:

"6.2 In the State, members of the SC/ST/OBC can compete against non­reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) available to them other than that relating to payment of examination fee in case of direct recruitment....”

41. In the event, the submission of learned

counsel for respondent Nos.6 to 9 is accepted the 49

above two parts of paragraph 6.2 shall become

clearly contradictory. Since, in the beginning it

is clearly stated that candidates of SC/ST/OBC

shall be counted against unreserved vacancies

whereas if second part read as contended by the

learned counsel for the private respondents, the

first part of paragraph becomes redundant and

unnecessary. The scheme of circular dated

24.06.2008 is not so as contended by the learned

counsel for the private respondents. The part on

which reliance has been placed by the learned

counsel for respondent Nos.6 to 9 is a part which

deals with the case of women, persons with

disabilities, sports persons, in­servicemen or

non­gazetted employees and ex­servicemen, for

those categories it is provided that if they have

obtained marks more than the last person of the

open competition category, they will be adjusted

against unreserved candidates. Thus, the above 50

submission of learned counsel for the private

respondents cannot be accepted.

42. One more judgment of this Court which needs to

be referred to is Vikas Sankhala and others vs.

Vikas Kumar Agarwal and others, (2017) 1 SCC 350.

Somewhat similar issues were raised in above case

with regard to migration of reserved category

candidates into general category which was

objected by the candidates belonging to general

category on the ground that they have been

selected after obtaining relaxation of marks

permissible to reserved category candidates. They

are not entitled to be included into general

category. The issue is mentioned in paragraph 24

which is to the following effect:

“24. It so happened that many candidates who belonged to reserved category got higher marks than the last candidates from the general category who was selected for the appointment in the said recruitment process. In terms of its various circulars, which we shall refer to 51

at the appropriate stage, such reserved category candidates who emerged more meritorious than the general category candidates were allowed to migrate in general category. Effect thereof was that these candidates though belonging to reserved category occupied the post meant for general category.

According to the writ petitioners (the respondents herein), it was impermissible as these reserved category candidates got selected after availing certain concessions and, therefore, there was no reason to allow them to shift to general category. The High Court has accepted this plea treating the relaxation in pass marks in TET as concession availed by the reserved category candidates in the selection process.”

43. Under the orders of the State Government dated

23.3.2011 relaxation in marks of the TET ranging

from 10% to 20% was allowed to different reserved

categories. After availing such relaxation the

reserved category candidates were selected as

having obtained more marks than the last general

category candidate and were included in the

general category candidates. Different circulars 52

issued by the State of Rajasthan including

circulars dated 17.06.1996, 04.03.2002 and

11.05.2011 were noticed by this Court. The general

category candidates contended that since

relaxation was obtained prior to issuance of

circular dated 11.05.2011, circular dated

11.05.2011 is not applicable and as per earlier

circulars reserved category candidates having

obtained relaxation in marks were not eligible to

be included into general category candidates. This

Court after noticing the above arguments,

ultimately held that the relaxation given in the

marks in TET examination is not part of

recruitment process. In paragraph 80 of the

judgment this Court reached on following

conclusion:

”80.....Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the 53

recruitment process on the basis of relaxation in TET.”

44. This Court having come to the conclusion that

relaxation given in TET was not part of

recruitment process, the Circulars issued by the

State of Rajasthan as noted above were held not to

be applicable. Thus, in the above case although

somewhat similar issues were raised but this Court

has held that relaxation in TET marks was not part

of recruitment process. The said judgment does not

help either of the parties.

45. The Division Bench as well as learned counsel

appearing for the State of Rajasthan has relied on

circular dated 11.05.2011. The Division Bench has

observed that circular dated 11.05.2011 did not

change the rules of game. Following observation

has been made with regard to circular dated

11.05.2011:

"In the instant case, State Government in supersession of its earlier policy decision regarding treatment to be given to the 54

candidates belonging to reserved category who are selected against unreserved category vacancies, issued directives for guidance to the appointing authorities vide Circular dated 11/5/2011 that neither changed the eligibility criteria seeking employment nor manner & method of selection of suitable candidates and in our considered view, circular dated 11/05/2011 did not change Rules of the game after the game is played or process of selection is initiated as observed by the learned Single Judge but such policy decisions are always within realm of judicial review and this what the Court considered & examined policy decision of the Government impugned.”

46. As noticed above Rule 7(1) of 1989 Rules

expressly provides that “r eservation of vacancies

for the Scheduled Castes and the Scheduled Tribes

shall be in accordance with the orders of the

Government for such reservation in force at the

time of recruitment i.e. by direct recruitment and

by promotion”.(underlined by us). The circular of

the Government shall be treated to be in force

for the purpose of reservation which is in force 55

at the time of recruitment. Recruitment commenced

by the advertisement dated 7.10.2010 and

25.10.2010 at that time only circular dated

24.06.2008 was in force, hence, subsequent

circular dated 11.05.2011 cannot be applied in the

present recruitment. There cannot be any dispute

that the policy of reservation can always be

changed by the State Government and the State

Government can change the manner and methodology

of implementing the reservation and criteria of

reservation of the reserved category candidates

and general category candidates. It is also

relevant to note that both learned Single Judge

and Division Bench have not approved circular

dated 11.05.2011 in toto. Both the Courts have

held that apart from age relaxation, if the

candidate has taken any other relaxation circular

dated 11.05.2011 cannot help him in migrating into

general category candidate.

56

47. We are thus of the opinion that Division Bench

erred in modifying the judgment of the learned

Single Judge and holding that candidates availing

relaxation of age belonging to reserved category

candidates who find place in merit list of the

general/open category has to be treated to be

included in the general/open category. The above

conclusion of the Division Bench is unsustainable

for the reason as indicated above.

48. In view of the foregoing discussion, we are of

the considered opinion that the candidates

belonging to SC/ST/BC who had taken relaxation of

age were not entitled to be migrated to the

unreserved vacancies, the State of Rajasthan has

migrated such candidates who have taken concession

of age against the unreserved vacancies which

resulted displacement of a large number of

candidates who were entitled to be selected

against the unreserved category vacancies. The 57

candidates belonging to unreserved category who

could not be appointed due to migration of

candidates belonging to SC/ST/BC were clearly

entitled for appointment which was denied to them

on the basis of the above illegal interpretation

put by the State. We, however, also take notice of

the fact that the reserved category candidates who

had taken benefit of age relaxation and were

migrated on the unreserved category candidates and

are working for more than last five years. The

reserved category candidates who were appointed on

migration against unreserved vacancies are not at

fault in any manner. Hence, we are of the opinion

that SC/ST/BC candidates who have been so migrated

in reserved vacancies and appointed should not be

displaced and allowed to continue in respective

posts. On the other hand, the unreserved

candidates who could not be appointed due to the

above illegal migration are also entitled for 58

appointment as per their merit. The equities have

to be adjusted by this Court.

49. On the question of existence of vacancies,

although learned counsel for the appellant

submitted that vacancies are still lying there,

which submission however has been refuted by the

learned counsel for the State of Rajasthan.

However, neither appellants had produced any

details of number of vacancies nor the State has

been able to inform the Court about the correct

position of the vacancies. We thus for adjusting

the equity between the parties issue following

directions:

(1) The writ petitioners/appellants who as per

their merit were entitled to be appointed against

unreserved vacancies which vacancies were filled

up by migration of SC/ST/BC candidates who had

taken relaxation of age should be given

appointment on the posts. The State is directed to

work out and issue appropriate orders for 59

appointment of such candidates who were as per

their merit belonging to general category

candidates entitled for appointment which exercise

shall be completed within three months from the

date copy of this order is produced.

(2) The State shall make appointments against the

existing vacancies, if available, and in the event

there are no vacancies available for the above

candidates, the supernumerary posts may be

created for adjustment of the appellants which

supernumerary posts may be terminated as and when

vacancies come into existence.

50. All the appeals are allowed accordingly.

.........................J. ( A.K. SIKRI )

.........................J. ( ASHOK BHUSHAN ) NEW DELHI, AUGUST 18, 2017.

60

ITEM NO.1501 COURT NO.7 SECTION XV (For judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No. 8351/2017

GAURAV PRADHAN AND ORS. Appellant(s) VERSUS STATE OF RAJASTHAN AND ORS. Respondent(s)

WITH

C.A. No. 7656/2017 C.A. No. 5305/2015

Date : 18-08-2017

These matters were called on for pronouncement of judgment today.

For parties Mr. Rishabh Sancheti, Adv.

Mr. G. M. Padma Priya, Adv.

Mr. Parijata Bhardwaj, Adv.

Mr. Dhruv Sharma, Adv.

Mr. Jaywant Patankar, Adv.

Mr. T. Mahipal, AOR

Ms. Pratibha Jain, AOR

Mr. K. L. Janjani, Adv.

Mr. Pankaj Kumar Singh, Adv.

Mr. Manindra Dubey, Adv.

Ms. Ruchi Kohli, AOR

Mr. Umang Shankar, AOR

Mr. Ajay Choudhary, AOR

Mr. Jasmeet Singh, AOR 61

Mr. Milind Kumar, AOR

Hon'ble Mr. Justice Ashok Bhushan pronounced the judgment of the Bench comprising Hon'ble Mr. Justice A.K.Sikri and His Lordship.

The appeals are allowed in terms of the signed reportable judgment.

(NIDHI AHUJA) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER

[Signed reportable judgment is placed on the file.]