Rajasthan High Court vs Rajat Yadav

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 14112 OF 2024

RAJASTHAN HIGH COURT & ANR. … APPELLANTS

VS.

RAJAT YADAV & ORS. … RESPONDENTS

WITH

CIVIL APPEAL NO(S). 3957-4009 OF 2025

JUDGMENT

DIPANKAR DATTA, J.

THE APPEALS

1. A Division Bench of the High Court of Judicature for Rajasthan, Bench

at Jaipur, allowed D.B. Civil Writ Petition No. 7564 of 2023 and

connected matters vide judgment and order dated 18th September,

Signature Not Verified 20231. Aggrieved by the impugned order, the administration of the Digitally signed by JATINDER KAUR Date: 2025.12.27 19:19:31 IST Reason: 1 impugned order

1 High Court and its Registrar2 have preferred these civil appeals by

special leave.

BRIEF RESUME OF FACTS

2. The basic facts triggering the appellate proceedings before us are

undisputed.

3. The Rajasthan District Courts Ministerial Establishment Rules,

1986 were framed to regulate appointments and conditions of service

in the ministerial establishments of the District Courts. Thereafter,

the Rajasthan High Court Staff Service Rules, 2002 were notified on

5th December, 2002, providing for recruitment to the post of Junior

Judicial Assistant/Clerk Grade-II by way of a competitive examination

comprising two stages, viz. a written test and a computer-based

typewriting test.

4. In pursuance thereof, on 5th August, 2022, the High Court issued an

advertisement. Applications were invited for appointment on 2756

vacancies in the posts of Junior Judicial Assistant/Clerk Grade-II in the

High Court, the Rajasthan State Judicial Academy, the District Courts

and allied institutions, including the Legal Services Authorities and

Permanent Lok Adalats. The vacancies were distributed category-wise

across General, Scheduled Caste (SC), Scheduled Tribe (ST), Other

Backward Class (OBC), Most Backward Class (MBC), Economically

2 appellants

2 Weaker Section (EWS), and horizontal reservation for various other

categories.

5. The scheme of selection envisaged a written test of 300 marks,

followed by a typewriting test on computer of 100 marks. The

qualifying marks in the written test were fixed at 50% for the General

category, 45% for OBC and other categories, and 40% for

SC/ST/PwD3. It was further stipulated that only candidates securing

the prescribed minimum in the written test, to the extent of five times

the number of vacancies category-wise, would be eligible to appear in

the typewriting test. The final merit list was to be drawn on the

aggregate of marks secured by the aspirants at both stages.

6. The respondents in these appeals had applied pursuant to the

aforementioned advertisement. Since they were found prima facie

eligible, the appellants permitted them to appear in the written test.

7. The written test was held on 12th and 19th March, 2023. The

respondents duly participated in the written test. The results followed

soon, being declared on 1st May, 2023. The list of candidates who

qualified for the second stage of the examination, i.e., the typewriting

test on computer, was duly published. The break-up of candidates

called for the type-writing test, which was thereafter scheduled

between 26th May and 29th May, 2023, is given in the chart

hereinbelow:

3

Persons with Disabilities

3 S. No. Category No. of Vacancies No. of candidates declared qualified for typewriting test 1 General 1077 5385

2 OBC-NCL 459 2295

3 MBC-NCL 136 680

4 EWS 286 1431

5 SC 416 2081

6 ST 370 1850

7 Saharia 12 11

Total 2756 13733

8. Significantly, the cut-off marks for various reserved categories like SC,

OBC-NCL, MBC-NCL and EWS were higher than the cut-off marks

provided for the General category. The cut-off marks, for various

categories, is given hereinbelow:

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

4 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

9. The respondents, belonging to different reserved categories, secured

marks in the written test in excess of the cut-off marks for the General

category candidates, i.e., 196.3451, but less than the cut-off marks

for their respective reserved category. Despite securing marks in

excess of the cut-off marks for the General category candidates, the

respondents belonging to different reserved categories were treated

as aspirants who could compete for the reserved posts only and not

the posts which were ‘general’; hence, much to their shock and

dismay, they did not figure in the list of successful candidates, eligible

to take the typewriting test on computer from their own reserved

5 category in the short-listing process. Relative merit of the reserved

category candidates was, thus, given a complete go-bye.

10. 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 and persons with benchmark disabilities, respectively,

in the written test were eligible for appearing in the typewriting test

on computer, subject to a cap 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.

11. On 10th May, 2023, one of the respondents, Rajat Yadav,

instituted D.B. Civil Writ Petition No. 7564 of 2023 before the High

Court. Several other writ petitions were thereafter filed by similarly

situated candidates. The prayers in substance were to quash the result

dated 1st May, 2023, including the cut-off, and to direct that reserved

category candidates who had secured marks greater than the cut-off

marks prescribed for the General category be included in the general

list and declared qualified for taking the typewriting test.

IMPUGNED ORDER

12. We propose to take note of the impugned order, in some detail,

whereby the Division Bench disposed of the writ petitions with suitable

directions.

6

13. It was the contention of the aggrieved writ petitioners4 before the

Division Bench that the appellants, being the recruiters, were obliged

to shortlist all the candidates - irrespective of the categories to which

they belonged, whether in the open category or in any of the reserved

categories - to the extent provided in the advertisement, i.e., five

times the total number of vacancies and, thereafter shortlist the

candidates for typewriting test based on their performance in the

written test, and that category-wise shortlisting would be contrary to

law.

14. The Division Bench noted that all the vacancies for which the

recruitment process was initiated were governed by the provisions with

regard to reservation for various categories like ST, SC, OBC (NCL),

MBC and EWS, including horizontal reservation for categories like PwD.

The Division Bench also noted the permissibility of shortlisting being

restricted to the extent of five times the number of vacancies, as

provided in the advertisement.

15. It was held by the Division Bench that if the contention of the

recruiters, as advanced by learned senior counsel on their behalf were

accepted, the object of reservation itself would be jeopardized.

16. Learned senior counsel for the recruiters placed reliance on Chattar

Singh and Others v. State of Rajasthan and Others5 where it was

held that the rule of migration would not be applicable at the stages of

4 petitioning candidates 5 (1996) 11 SCC 742

7 shortlisting of the candidates during screening/preliminary

examination as the marks are not added while preparing final merit

list and that such migration of reserved category candidates would be

applicable only at the time of preparation of the final merit list for the

purposes of making appointment. They contended before the Division

Bench that if the claim of the petitioning candidates were accepted,

the candidates in the OBC category as well as other reserved

categories, who obtained higher marks in the written examination

were required to be migrated to the open category before the final

merit list is prepared, which is impermissible.

17. The Division Bench considered Chattar Singh (supra) wherein Rule

13 of the Rajasthan State and Subordinate Service (Direct Recruitment

by Combined Competitive Examination) Rules, 1962 was under

challenge. The Rules therein envisaged a two-stage process of

Preliminary and Main Examinations which, after an amendment,

required declaration of results category-wise. The contention therein

that OBC candidates were entitled to the same 5% relaxation in

qualifying marks as SC/ST candidates was rejected. It was held therein

that such relaxation was confined to SC/ST candidates and that, even

prior to the amendment, preparation of category-wise lists was implicit

in the scheme of the Rules. In furtherance thereof, the Division Bench

rejected the contention that shortlisting of the candidates, category-

wise after written examination is contrary to the scheme of the

examination. Following this, the Division Bench also rejected the

8 challenge against the provisions contained in the advertisement which

provided for category-wise preparation of list by shortlisting the

candidates after the written examination.

18. Referring to Dharamveer Tholia and Others v. State of Rajasthan

and Another6, the Division Bench noted that it was held therein that

a preliminary examination is essentially a screening test to shortlist

candidates and that 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 allowing some candidates to appear in the Main Examination,

would automatically lead to their induction in Government service.

19. The Division Bench in the impugned order further noted that in the

previous decisions, the common reasoning was that a reserved

category candidate could not claim migration to the open category at

the stage of the Preliminary Examination, since marks secured therein

were not carried forward to the final merit list. It was, however,

emphasised that such reasoning had no application once the Main

Examination commenced. Distinguishing the precedents, the Division

Bench noted that those cases dealt only with claims for migration at

the preliminary stage, whereas in the present case, the dispute arose

after the written examination forming part of the Main Examination.

On this basis, the principles laid down in Dharamveer Tholia

6 2000 (3) WLC 399

9 (supra) and subsequent decisions of the High Court were held to be

inapplicable, and the recruiters’ contentions stood rejected.

20. The Division Bench emphasised that exclusion of a reserved category

candidate, despite securing marks higher than the cut-off marks for

General/Open category, solely on account of his category, would

violate Articles 14 and 16 of the Constitution. It was underscored that

the placement of a more meritorious reserved category candidate in

the Open category is not a facet of reservation, but a principle of

equality founded on merit. Relying on Janki Prasad Parimoo v.

State of Jammu & Kashmir7, the Division Bench observed that while

reservation may involve preferring a less meritorious candidate, it does

not require confining a more meritorious reserved category candidate

to his own slot, for such confinement would amount to impermissible

discrimination.

21. Adverting to the factual position in the batch of petitions before it, the

Division Bench noted that the cut-off marks for the General category

were lower than those prescribed for SC, OBC (NCL), MBC (NCL), and

EWS categories, as can be seen from the table mentioned earlier. On

this basis, it was observed that the recruiters, in preparing the lists

category-wise, had treated the General/Open category as if it were a

compartment reserved exclusively for general candidates. The Division

Bench further held that had the lists been prepared purely on the basis

of merit across categories, several reserved category candidates would

7 AIR 1973 SC 930

10 have displaced general category candidates, thereby preserving the

constitutional principle of equality.

22. The Division Bench drew support from the Constitution Bench decisions

in Indra Sawhney v. Union of India8 and R.K. Sabharwal v. State

of Punjab9 to reiterate that a reserved category candidate who

secures equal or higher merit cannot be denied equality of treatment

merely on account of his caste or community. Any such exclusion, the

Division Bench held, would amount to rejecting a more meritorious

candidate solely because of the category to which he belongs.

23. In further reinforcement of its views, reliance was placed by the

Division Bench on Saurav Yadav v. State of Uttar Pradesh10,

wherein it was clarified that reservations, vertical or horizontal, secure

representation but are not ‘rigid slots’. The open category is open to

all solely on merit, and to confine candidates within quotas would

negate merit and amount to communal reservation.

24. Reliance was also placed by the Division bench on U.P. Power

Corporation Ltd. v. Nitin Kumar11, wherein the High Court of

Allahabad held that reservation earmarks posts for specified

categories, but unreserved seats are open to all on merit and not

confined to general candidates. It was further held that a reserved

category candidate securing selection on open merit cannot be

8 1992 Supp (3) SCC 217 9 (1995) 2 SCC 745 10 (2021) 4 SCC 542 11 2015 SCC OnLine All 8611

11 adjusted against reserved vacancies, and that this principle applies

throughout the selection process, not merely at the stage of final merit

list, since any other view would yield anomalous consequences.

25. In the factual milieu presented before it, the Division Bench noted that

the petitioning candidates were unable to find place in the select list of

their respective reserved categories, the cut-off marks therein being

comparatively high. Nevertheless, their marks were more than what

was secured by a substantial number of candidates shortlisted under

the general category, yet, they were not treated as open category

candidates. The effect of such exclusion amounted to treating the open

category as if it were a compartment reserved exclusively for general

category candidates, thereby denying entry to more meritorious

reserved category candidates. Such an approach, apart from being

legally untenable, was held to result in a negation of merit.

26. The petitioning candidates’ contention that the Rules do not permit

category-wise shortlisting after the written examination was rejected.

On an analysis of the scheme, and relying on Chattar Singh (supra),

it was held that preparation of category-wise lists is implicit in the

rules. Equally, candidates who had participated in the process with full

knowledge of its terms could not later challenge it on being

unsuccessful. However, it was clarified that such bar would not extend

to questioning whether the settled principle of migration of meritorious

reserved category candidates to the open/general category, subject to

their not having availed any special benefit, had been adhered to. The

12 objection that the petitioning candidates were estopped from raising

this claim was, therefore, rejected. The Division Bench held, as the

inescapable conclusion from the foregoing discussion, that while

preparing category-wise lists after the written examination, reserved

category candidates who had secured marks higher than the cut-off

for the general category were required to be included in the open

category list. The proper course was first to prepare the General/Open

category list strictly on merit, including therein all such reserved

category candidates who could compete without availing any special

benefit, to the extent of five times the number of vacancies. Only

thereafter, the reserved category lists were to be drawn up, excluding

those already accommodated in the Open category.

27. It was noted by the Division Bench that some of the petitioning

candidates had been permitted to provisionally appear in the

typewriting test, while others had not been so fortunate. The Division

Bench directed revision of category-wise lists by first preparing the

General/Open category list on merit, including therein reserved

category candidates who had secured higher marks than the

unreserved cut-off, provided they had not availed of any special

benefit. The reserved category lists were thereafter to be drawn.

Candidates successful in the written test, already permitted to

provisionally appear in the typewriting test, were to have their

aggregate marks computed - while those not permitted earlier, were

to be given an opportunity to appear in a fresh test. The merit lists for

13 both categories were to be re-worked and appointments offered

accordingly. It was further directed that if no vacancies remained, less

meritorious appointees in either category would have to make way for

the more meritorious.

ARGUMENTS OF THE APPELLANT

28. The pivotal contention of Mr. Gupta, learned senior counsel for the

appellants, is that non-interference with the impugned order would

result in benefits of migration being given twice – first, at the stage of

declaration of the results of the written test and the other at the stage

of declaration of the typewriting test on computer. According to him,

there are authorities in abundance declaring the law on the question

of migration and it is now beyond any pale of doubt that the rule of

migration of a reserved category candidate (from the category to

which he/she belongs) to the general category is attracted at the stage

of preparing the final merit list after all tiers of examination have been

successfully cleared and not at any intermediate tier of the selection

process, i.e., when the exercise of shortlisting of candidates within the

respective categories is complete and the marks of all the candidates

who have cleared the final tier are available, and the stage is reached

for preparing the final merit list. It has been his consistent argument

that law, as laid down by this Court and several other high courts, do

not permit benefits of migration to be extended to the reserved

category candidates at different tiers of the same selection process

14 and such benefit can be availed only once, and that too if the reserved

candidate has not availed of any concession/relaxation.

29. Mr. Gupta submitted that several findings recorded by the Division

Bench of the High Court in the impugned judgment have not been

challenged by the petitioning candidates and, therefore, do not call for

any interference by this Court. Two of those findings are as follows and

are non-issues before us:

a. The Division Bench held that the preparation of list category

wise is implicit in the relevant rules.

b. The Division Bench upheld the restriction of shortlisting to the

extent of five times the number of vacancies, as provided in the

advertisement.

30. Mr. Gupta next contended that the rule of adjusting a meritorious

reserved category candidate in the general category is to be applied

at the stage of final selection, i.e., when the final merit list is prepared,

and not at the intermediate stage of shortlisting for the second stage

of examination. A candidate belonging to a reserved category cannot

claim placement in the general category merely on the basis of marks

obtained in the written examination, as the written test is only one

stage of the selection process. The final determination of merit must

await the completion of all stages, including the typewriting test, which

carries minimum qualifying marks separately assigned. Hence, the

gravamen of his contention is that the rule of migration does not apply

at the stage of shortlisting of candidates through screening or

15 preliminary examination but only at the stage of preparation of the

final merit or select list for appointment.

31. It was finally urged that having participated in the selection process,

the respondents are precluded from challenging the process insofar as

the preparation of category-wise list is concerned.

DECISIONS CITED BY MR. GUPTA

32. Mr. Gupta had been called upon by us to cite authoritative decisions of

this Court for the proposition he was advancing before us. Multiple

authorities on the question of migration have been referred to by Mr.

Gupta in his written notes of arguments, which we allowed him to place

on record.

33. The decisions cited by Mr. Gupta together with the relevant passages

therefrom are noted hereunder:

a. Vikas Sankhala & Ors. v. Vikas Kumar Agarwal & Ors.12 (2 Js):

18. The participants of reserved category candidates in recruitment process of 2012 and 2013 preferred SLP(C) No. 31109 of 2014 wherein this Court issued notice and allowed the appellant Nos. 8 to 13 belonging to 2013 recruitment, to file SLP. In March, 2015, result declared with regard to recruitment of 2013 giving relaxation in accordance with State policy dated March 23, 2011. However, appointments are not given to reserved category candidates availing relaxation although seats have been kept vacant. Moreover, migration to general seats was not allowed. The appellant in SLP(C) No. 31109 of 2014 belonging to 2013 recruitment moved I.A. No. 14 of 2015 seeking direction to the State to prepare merit list of 2013 recruitment in the same manner as done in 2012 recruitment giving benefit of relaxation and migration.

***

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

12 (2017) 1 SCC 350

16 refer to 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 (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.

***

36. On the aforesaid basis, migration of such reserved category candidates, though emerged as more meritorious in the selection process than the last candidate selected in the general category, are not permitted to migrate to the general category. ***

38.3 (iii) Whether reserved category candidates, who secured better than general category candidates in recruitment examination, can be denied migration to general seats on the basis that they had availed relaxation in TET?

***

78. ... It was further pointed out that during the pendency of the matter before this Court, appointments were made by the respective local bodies with respect to recruitment of 2012 giving relaxation in accordance with the State policy dated March 23, 2011 and also allowing migration as per policy dated May 11, 2011 subject to the decision of this Court. The participants of reserved category candidates in recruitment process of 2012 and 2013 preferred SLP (C) No. 31109 of 2014 wherein this Court issued notice and allowed the appellant Nos. 8 to 13 belonging to 2013 recruitment to file SLP. In March, 2015, result declared with regard to recruitment of 2013 giving relaxation in accordance with State policy dated March 23, 2011. However, appointments are not given to reserved category candidates availing relaxation although seats have been kept vacant. Moreover, migration to general seats was not allowed. The appellants in SLP (C) No. 31109 of 2014 belonging to 2013 recruitment, moved I.A. No. 14 of 2015 seeking direction to the State to prepare merit list of 2013 recruitment in the same manner as done in 2012 recruitment giving benefit of relaxation and migration. ***

84.2 Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category.

17 b. Pradeep Singh Dehal v. State of H.P.13 (2 Js)

From Pradeep Singh Dehal (supra), paragraph 15 was referred to

us which in turn referenced paragraph 84.2 of the decision in Vikas

Sankhala (supra), reproduced supra. It reads:

15. In the judgment reported as Vikas Sankhala v. Vikas Kumar Agarwal one of the questions examined was whether reserved category candidate who obtains more marks than the last general category candidate is to be treated as general category candidate. It was held that such reserved category candidate has to be treated as unreserved category candidate provided such candidate did not avail any other special concession. …

c. Gaurav Pradhan v. State of Rajasthan14: (2 Js)

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. 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 24-6-2008 was the last circular on the subject prior to initiation of recruitment process. Para 6.2 of the Circular dated 24-6-2008 which has also been extracted by the Division Bench [Rajesh Singh v. State of Rajasthan, 2014 SCC OnLine Raj 6470: (2014) 2 RLW 1585] of the High Court is to the following effect: (Rajesh Singh case [Rajesh Singh v. State of Rajasthan, 2014 SCC OnLine Raj 6470: (2014) 2 RLW 1585], SCC OnLine Raj para 40)

‘Circular dated 24-6-2008

6.2. In the State, members of the SC/ST/OBC can compete against non-reserved 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.’

13 (2019) 9 SCC 276 14 (2018) 11 SCC 352 18

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 clause (4) of the Constitution. The State is 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 17-6-1996, 4-3-2002 and 24-6-2008 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 24-6-2008, 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 11-5-2011 by which despite taking any special concession, reserved category candidates could be migrated into general category candidates.

d. Saurav Yadav v. State of U.P.15 (Para 53) (3 Js)

53. The controversy that arises in the present round of litigation is the correct method of filling the quota reserved for women candidates (‘horizontal quota’). It is the complaint of the applicants, who are largely women, belonging to the Other Backward Class categories, that the State has not correctly applied the rule of reservation, and denied such OBC women candidates the benefit of ‘migration’ i.e. adjustment in the General category vacancies.

e. Nirav Kumar Dilipbhai Makwana v. Gujrat Public Service

Commission16: (2 Js)

2. The question for consideration in this appeal is whether a candidate who has availed of an age relaxation in a selection process

15 (2021) 4 SCC 542 16 (2019) 7 SCC 383

19 as a result of belonging to a reserved category, can thereafter seek to be accommodated in/or migrated to the general category seat? ***

19. It is evident from the above two circulars that a candidate who has availed of age relaxation in the selection process as a result of belonging to a reserved category cannot, thereafter, seek to be accommodated in or migrated to the general category seats.

***

24. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or 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 service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time.

***

36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.

f. Govt. of NCT Delhi v. Pradeep Kumar17: (3 Js)

21. At this stage we need to discuss the Vikas Sankhala judgment in some detail as the High Court and the Tribunal granted relief to the respondents on the basis of this Judgment. The recruitment in Vikas Sankhala, related to Rajasthan where the candidates who availed concession in the CTET examination, were allowed to migrate to Unreserved (or general) category vacancies, if they were more meritorious than the general category candidates." ***

17 (2019) 10 SCC 120

20

29. From the above extract of the two OMs, it is quite apparent that, unlike in Vikas Sankhala, there is an express bar on migration to the unreserved category of those reserved category candidates who had availed of relaxation including those for qualification. ... ***

30. The other distinguishing aspect in Vikas Sankhala (supra) is that the candidates who had applied under the reserved category belonged to Rajasthan. For the selection and aspirants from the same State i.e., Rajasthan, the Court allowed such candidates to migrate to the unreserved category.

***

32. The respondents with their CTET qualification under relaxed norms would be eligible for OBC category posts provided their OBC status is certified and recognized by the Delhi government. But such not being the case, they are ineligible for the reserved category vacancies. To allow them to migrate and compete for the open category vacancies would not be permissible simply because, they have secured the CTET qualification with relaxation of pass marks meant for those belonging to the OBC category. As the respondents have not secured the normal pass marks for general category, their eligibility for the general category vacancies is not secured. Therefore, their performance in the selection examination would be of no relevance, in the present process.

g. Sadhana Singh Dangi v. Pinki Asati18: (3 Js)

6.1. Going by the settled principles of law, migration of reserved category candidate on the basis of merit for allotment of a seat in General Category would certainly be applicable to vertical reservation.

h. Ramnaresh @ Rinku Kushwah v. State of Madhya Pradesh19:

(2 Js)

16. In view of the settled position of law as laid down by this Court in the case of Saurav Yadav (supra) and reiterated in the case of Sadhana Singh Dangi (supra), the methodology adopted by the respondents in compartmentalizing the different categories in the horizontal reservation and restricting the migration of the meritorious reserved category candidates to the unreserved seats is totally unsustainable. In view of the law laid down by this Court, the

18 (2022) 12 SCC 401 19 2024 SCC OnLine SC 2058

21 meritorious candidates belonging to SC/ST/OBC, who on their own merit, were entitled to be selected against the UR-GS quota, have been denied the seats against the open seats in the GS quota.

i. Alok Kumar Pandit v. State of Assam20: (2 Js)

7. The learned counsel for the appellant referred to the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, Assam Public Service Combined Competitive Examination Rules, 1989 and Office Memo No. ARP-338/83/14 dated Dispur, 4-1-1984 issued by the State Government and argued that the reserved category candidates, who were more meritorious than open category candidates, but were appointed against the reserved category posts should be deemed to have been appointed against the posts earmarked for the open category and they cannot be treated as appointed against the posts earmarked for the reserved category, which is constitutionally and legally impermissible. He submitted that if migration is allowed to more meritorious candidates of the reserved category, who, as per their overall merit should be appointed against the general category posts then the quota earmarked for reserved category will be reduced and that would be clearly contrary to the provisions of the Rules framed under the proviso to Article 309 of the Constitution, the reservation policy framed by the State Government and Articles 14 and 16 of the Constitution.

ARGUMENTS OF THE PETITIONING CANDIDATES

34. Dr. Chauhan, learned senior counsel for the petitioning candidates,

contended that the recruitment process initiated pursuant to the

advertisement dated 05th August, 2022 suffered from a fundamental

illegality, inasmuch as the General/Open category was treated as an

exclusive compartment reserved for non-reserved candidates. Such an

approach, it was urged, has the effect of converting the selection into

a form of communal reservation, a concept expressly proscribed by

the constitutional scheme.

20 (2012) 13 SCC 516

22

35. Drawing our attention to the decision of this Court in Saurav Yadav

(supra), Dr. Chauhan placed particular reliance on the opinion of

Hon’ble S. Ravindra Bhat, J. (as His Lordship then was) where it was

emphasised that the open category is not a quota, but remains

accessible to all candidates irrespective of social classification.

36. It was also urged that the illegality in the present selection process is

manifest from the cut-off marks for several reserved categories being

demonstrably higher than the cut-off marks for the General/Open

category, revealing an impermissible methodology of category-wise

segregation at the stage of shortlisting after the written examination.

37. Pointing out that a candidate (who had not availed of any special or

additional benefit of reservation) was entitled to be placed in the

General/Open category having secured marks well above the cut-off

marks for the General/Open category and that denial of such

placement resulted in his wrongful exclusion from the next stage of

the selection process, namely, the type-writing test on computer, Dr.

Chauhan contended that the exclusion of meritorious reserved

category candidates at the shortlisting stage itself defeats the very

principle of equality based on merit and renders the subsequent stages

of selection constitutionally infirm.

38. It was further submitted that the Division Bench in the impugned order

correctly applied the settled constitutional principle that a candidate

belonging to a reserved category, who secures marks higher than the

23 cut-off prescribed for the General/Open category, is entitled to be

considered against the General/Open category.

39. Highlighting that the Division Bench’s directions merely mandate a

lawful reworking of the merit lists - by first preparing the Open/General

category list strictly on the basis of merit, followed by the preparation

of the respective reserved category lists and by granting an

opportunity to candidates who were wrongly excluded to participate in

the type-writing test, it was next contended that the Division Bench

did not confer any undue or preferential advantage on the petitioning

candidates, but merely restored them the position they would have

occupied had the selection process been conducted in accordance with

constitutional norms from its inception.

40. Finally, it was argued that migration of reserved category candidates

to the Open/General category cannot be confined only to the final

stage of appointment, but must necessarily operate at every stage

where merit is assessed and shortlisting is undertaken; otherwise, the

primacy of merit, which underlies Articles 14 and 16 of the

Constitution, would stand diluted by procedural stratification.

OUR OBSERVATIONS, ANALYSIS AND FINDINGS

A. PRINCIPLE OF ESTOPPEL

41. Our examination of the erudite arguments advanced by Mr. Gupta

must begin with consideration of the objection to the conduct of the

petitioning candidates based on applicability of the principle of

‘estoppel’.

24

42. There is a long line of decisions of this Court that candidates who

participated in a selection process cannot later challenge the procedure

adopted merely because the result is not palatable to them. It has

been held there, generally, that the principle of estoppel operates

against such a candidate who, having taken a calculated chance of

selection by participating in the selection process and failed to secure

selection, challenges the process of selection in Court on the ground

of a flawed procedure being adopted by the recruiting/selecting

authority. Profitable reference may be made to some of the decisions

of this Court, viz. G. Sarana v. University of Lucknow21, Om

Prakash Shukla v. Akhilesh Kumar Shukla22, Madan Lal v. State

of Jammu & Kashmir23, K.A. Nagamani v. Indian Airlines24,

Manish Kumar Shahi v. State of Bihar25, Ramesh Chandra Shah

v. Anil Joshi26 and Ramjit Singh Kardam v. Sanjeev Kumar27.

43. However, this rule is not absolute. As elucidated in Meeta Sahai v.

State of Bihar28, participation of a candidate in a selection process

implies acceptance of the prescribed procedure, but not of any

illegality in the conduct of the said procedure or constitutional infirmity

underlying it. Where the challenge pertains to a misconstruction of

21 (1976) 3 SCC 585 22 1986 Supp SCC 285 23 (1995) 3 SCC 486 24 (2009) 5 SCC 515 25 (2010) 12 SCC 576 26 (2013) 11 SCC 309 27 (2020) 20 SC 209 28 (2019) 20 SCC 17

25 statutory rules or violation of constitutional principles, the plea of

estoppel cannot operate as a bar.

44. This distinction was earlier recognised by a Bench of three Judges

in Raj Kumar v. Shakti Raj29, where despite participation, the Court

held that glaring illegalities in the process rendered estoppel

inapplicable.

45. Having considered the precedents in the field, to our mind, a candidate

would be estopped from challenging a selection process post-

participation, unless he can show that despite due diligence, he could

not have known earlier of the illegality in the procedure that came to

be adopted or that the procedural flaw striking at the root of the

selection process was hidden and surfaced only after completion of the

process of selection; hence, no challenge could have been laid by him

prior to his participation in the process.

46. In the present case, the advertisement was a representation to the

aspirants for public employment that category-wise lists would be

prepared. None would question such a condition. There was, however,

no indication that meritorious reserved category candidates would not

be treated as General/Open category candidates even if they outscore

the latter. The illegality lies in the action of the appellants in not

treating the meritorious reserved category candidates as

General/Open category candidates, despite noticing that the former

had outperformed and outshone the latter. Since the petitioning

29 (1997) 9 SCC 527

26 candidates could not have possibly visualised such an approach on the

part of the recruiters by projecting their own imagination and discover

all facts and circumstances that might be in their contemplation to be

adopted while drawing up the merit lists at the time they participated

in the preliminary written examination, the question of such candidates

being estopped from mounting a challenge to the legality of the

process does not and cannot arise. The petitioning candidates paid a

price for their merit and having challenged the very legality of the

process alleging violation of constitutional norms and legal principles,

the plea of estoppel could not have defeated such a challenge.

47. The Division Bench by entertaining the writ petitions and granting relief

of the nature noticed above cannot be held to have exercised

jurisdiction illegally.

B. ON ‘DOUBLE BENEFIT’

48. Moving on with consideration of the objection regarding ‘double

benefit’, we see no reason to agree.

49. A reserved category candidate, howsoever meritorious he/she might

be, in present times has to face stiff competition from other equally

meritorious candidates having regard to dearth of jobs in our country.

It is out of an anxiety to obtain an employment that such a reserved

category candidate typically indicates the category to which he/she

belongs for being considered for appointment on a reserved vacancy.

Certainly, mere indication of one’s reserved category in the application

form does not automatically qualify the candidate for appointment on

27 a reserved vacant post but only enables him/her to stake a claim

amongst all reserved candidates based on the inter se merit position.

Equally, for a deserving reserved category candidate to be appointed

on an unreserved vacant post, it is merit and merit alone that must

determine suitability. In other words, for the unreserved vacant posts,

the inter se merit among all the competing candidates serves as the

benchmark for appointment in public service.

50. Bearing such well-acknowledged legal position in mind, we have no

hesitation to record our clear agreement with the view expressed by

the Division Bench, notwithstanding the assiduous arguments of Mr.

Gupta. The premise underlying the argument of potentially conferring

‘double benefit’ to the candidates of the reserved category proceeds

on an erroneous assumption that a reserved category candidate is

necessarily availing the benefit of reservation at more than one/every

stage of a multi-tier process. It is entirely conceivable that a candidate

belonging to a reserved category may, on his or her own merit, secure

marks in the preliminary stage exceeding the cut-off for the

unreserved category and may, likewise, on cumulative assessment,

surpass the unreserved cut-off in the final stage as well. In such a

situation, the reserved candidate does not draw upon the benefit of

reservation at any stage and is entitled to be considered and appointed

against an unreserved vacant post purely on merit. The apprehension

of a ‘double benefit’, therefore, is misconceived, since the availability

of reservation does not operate as a bar for a reserved category

28 candidate from being considered on merit against the unreserved

category, placement therein depending solely on merit demonstrably

sufficient at the particular stage, a proposition we propose to examine.

C. PRECEDENTS ON ‘MIGRATION’

51. Having read the extracts of the precedents referred to us by Mr. Gupta

on the question of migration, we have not found the same to support

the proposition of law he has argued. However, before inching ahead,

for the sake of completeness, we wish to advert to certain omitted

paragraphs from the precedents that were cited as well as a couple of

more precedents bearing on the issue for presenting a holistic and

coherent picture of the legal position governing migration of reserved

category candidates in a multi-tier selection process.

52. Paragraph 15 of Pradeep Singh Dehal (supra) was referred to by Mr.

Gupta. However, we wish to refer to paragraphs 16 and 17 of the said

decision as well for a complete perspective on the reasoning of this

Court. The same are reproduced below:

16. The concessions which were availed by the reserved category candidates are in the nature of age relaxation, lower qualifying marks, concessional application money than the general category candidates.

17. In view of the said fact, we find that the selection process conducted by the University cannot be said to be fair and reasonable.

Consequently, the University is directed to re-examine the selection process by constituting an Expert Committee who shall consider the “publications” of the candidates who were being considered in pursuance of Advertisement No. 3 of 2011 and make suitable recommendations accordingly by having a joint merit list of all the categories of candidates who applied for appointment to the post of Assistant Professor. However, in such selection process, the appointment of candidates already selected will not be disturbed, except the appellant whose appointment shall be subject to the decision of the University on the basis of recommendation of the Expert Committee.

29

53. Paragraph 7 of the decision in Alok Kumar Pandit (supra) was

referred. For completeness, the relevant extracts from the said

decision containing the answer to the question noticed in paragraph 7

are reproduced below:

13. If the proposition laid down in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] are considered in abstract, it may be possible to say that once a reserved category candidate secures higher merit than open category candidates, he can be considered for appointment only against open category post and the quota of the particular reserved category cannot be reduced by treating his appointment as one made against the post earmarked for the reserved category to which he belongs. However, literal application of this proposition can lead to serious anomaly and discrimination inasmuch as more meritorious candidate of the particular reserved category could be deprived of the service/cadre/post of his choice/preference and less meritorious candidate of the reserved category could get appointment on the post which would otherwise be available to more meritorious candidate.

This can be illustrated by the following example:

X and Y are members of reserved category. They compete for selection for recruitment to All-India Services, which includes, IAS, IPS, IRS, etc. In the merit list prepared by the Commission X is placed higher than some of the open category candidates but on the basis of his overall inter se merit with the open category candidates he could get appointment only to IRS. X can get the post of his choice/preference i.e. IAS provided his case is considered for appointment against the posts earmarked for the particular reserved category to which he belongs. If he is not allowed to do so, then why (sic., Y) who is less meritorious than X within the reserved category will get appointment to IAS against the reserved post. In this manner X will, despite his better merit within the reserved category, stand discriminated in the matter of appointment against the post for which he had given his preference.

*** 24.1. A reserved category candidate who is adjudged more meritorious than the open category candidates is entitled to choose the particular service/cadre/post as per his choice/preference and he cannot be compelled to accept appointment to an inferior post leaving the more important service/cadre/post in the reserved category for less meritorious candidate of that category.

30 54. In Jitendra Kumar Singh v. State of U.P.30, this Court [while

construing the Uttar Pradesh Public Services (Reservation for

Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act,

1994 and the executive instructions issued thereunder] drew a clear

distinction between concessions granted at the threshold stage such

as reduced fee and age relaxation (to enable participation in the

selection process) and relaxation in the standards of selection. The

relevant paragraphs therefrom read as follows:

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 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. Sub-section (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.

***

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

30 (2010) 3 SCC 119

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

55. More recently, in Deepa E.V. v. Union of India31, this Court

elucidated an important qualification to the principle enunciated

in Jitendra Kumar Singh (supra). This Court held that should the

governing statutory rules or executive instructions provide for an

express bar that candidates belonging to the Scheduled Caste,

Scheduled Tribe or Other Backward Classes, having availed any

relaxation or concession, shall not be adjusted against unreserved

vacancies, such express bar would have primacy. The instructive

passages from the decision are set out below:

4. The appellant, who has applied under OBC category by availing age relaxation and also attending the interview under the “OBC category” cannot claim right to be appointed under the General category.

***

8. The learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh v. State of U.P. [Jitendra Kumar Singh v. State of U.P., (2010) 3 SCC 119 :

(2010) 1 SCC (L&S) 772] , 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

31 (2017) 12 SCC 680

32 and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate 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 [Jitendra Kumar Singh v. State of U.P., (2010) 3 SCC 119 : (2010) 1 SCC (L&S) 772] cannot be applied to the case in hand.

56. At this stage, it is necessary to clarify that the present case stands on

a different footing from the principles of law discussed above. No such

concession or relaxation has been extended to the petitioning

candidates and the controversy before us is confined to a narrower

question, namely, whether a candidate belonging to a reserved

category, who has secured marks higher than the cut-off for the

general category in the preliminary/screening stage, is to be treated

as having qualified against an open or unreserved vacant post, or

whether such candidate must necessarily be confined to the reserved

category alone.

D. MIGRATION- MEANING AND APPLICABILITY

57. We are convinced, on the facts that have emerged, that we have an

“open” slate before us. As would unfold from the discussion hereafter,

our stance remains unchanged from what was conveyed to Mr. Gupta

in course of hearing.

58. We begin our observations, analysis and ruling on migration by

refreshing our memory with certain well-established principles in

relation to affirmative action under our Constitution. It is well-settled

that the concept of ‘equality before law’ ingrained in Article 14 of the

Constitution of India contemplates, inter alia, elimination of

33 inequalities in status, facilities and opportunities not only amongst

individuals but also amongst groups of people and is aimed at securing

the educational and economic interests of the weaker sections of the

society and to protect them from social injustice and exploitation. The

equal protection clause urges affirmative action for those who are

placed unequally. Affirmative action is also recognised by Article 16.

Then again, Article 335 thereof provides for special consideration in

the matter of claims of the Scheduled Castes/Scheduled Tribes for

public employment. The entire field of law relating to affirmative action

is so well occupied by authoritative decisions that we consider it

unnecessary to burden this judgment by referring to the same. What

particularly concerns us in these appeals is not a sterile invocation of

formal legal equality, but an assessment of the real-world

consequences flowing from the principle of equality. The focus,

therefore, must be on outcomes as much as on rules.

59. Indra Sawhney (supra) explained the principles of reservation.

Hon’ble B.P. Jeevan Reddy, J. (as His Lordship then was) declared,

inter alia, that where a vertical reservation is made in favour of a

backward class, the candidates in this category may compete for open

or general category and that if they are appointed on merit in the open

or general category, their number will not be counted against the

backward class category and, as such, it cannot be considered that the

vertical reservations have been filled up to the extent candidates of

this category have migrated to the open category on merit. 34

60. In Saurav Yadav (supra), Hon’ble S. Ravindra Bhat, J. in His

Lordship’s supplementing opinion32 outlined the features of vertical

and horizontal reservation as follows:

59. The features of vertical reservations are:

59.1. They cannot be filled by the open category, or categories of candidates other than those specified and have to be filled by candidates of the social category concerned only (SC/ST/OBC). 59.2. Mobility (“migration”) from the reserved (specified category) to the unreserved (open category) slot is possible, based on meritorious performance.

59.3. In case of migration from reserved to open category, the vacancy in the reserved category should be filled by another person from the same specified category, lower in rank.

59.4. If the vacancies cannot be filled by the specified categories due to shortfall of candidates, the vacancies are to be “carried forward” or dealt with appropriately by rules.

60. Horizontal reservations on the other hand, by their nature, are not inviolate pools or carved in stone. They are premised on their overlaps and are “interlocking” reservations49. As a sequel, they are to be calculated concurrently and along with the inviolate “vertical” (or “social”) reservation quotas, by application of the various steps laid out with clarity in para 21.3 of Lalit, J.’s judgment. They cannot be carried forward. The first rule that applies to filling horizontal reservation quotas is one of adjustment i.e. examining whether on merit any of the horizontal categories are adjusted in the merit list in the open category, and then, in the quota for such horizontal category within the particular specified/social reservation.

61. The open category is not a “quota”, but rather available to all women and men alike. …”.

61. The above observations were followed by His Lordship’s observation,

found almost at the end of the opinion, that 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.”. The same have a profound meaning, and needs to be

32 the Editor’s note in the SCC report suggests that all three Hon’ble Judges on the Bench had signed the supplementing opinion.

35 translated into action without being unnecessarily bothered by a term

like ‘migration’.

62. Drawing inspiration from the guiding light provided by Indra

Sawhney (supra) and Saurav Yadav (supra), we hold that the word

‘open’ connotes nothing but ‘open’, meaning thereby that vacant posts

which are sought to be filled by earmarking it as ‘open’ do not fall in

any category. One does find categories like ‘open’ or ‘unreserved’ or

‘general’ being widely used in course of recruitment drives but they

are meant to signify the open/unreserved vacant posts on which any

suitable candidate can be appointed, regardless of the

caste/tribe/class/gender of such candidate. For all intents and

purposes, the vacancies on posts which are notified/advertised as open

or unreserved or general, as the terms suggest, are not reserved for

any caste/tribe/class/gender and are, thus, open to all notwithstanding

that a cross-section of society can also compete for appointment on

vacant posts which are ‘reserved’ – vertical or horizontal – as

mentioned in the notification/advertisement.

63. Now, turning to the dictionary meaning of the word ‘migration’, what

we find is that the same typically refers to the act of moving from one

place to another, often involving a change of residence or location.

This can apply to various contexts like human migration, animal

migration, data migration, etc. In general, migration involves a change

of location, often with the intention of settling or establishing a new

presence in the new location.

36

64. In the context of reservation in public employment, the word

‘migration’ refers to a candidate claiming benefits or entitlements. The

word is used in, at least, two scenarios.

65. Scenario 1 is “Inter-State Reservation Migration” envisaging a

portability of reservation benefits. Since we are not concerned with a

scenario 1 case, we make no observation except noting two decisions

of this Court. The first is Action Committee v. Union of India33

where it has been held by a Constitution Bench that a person belonging

to Scheduled Caste/Scheduled Tribe in relation to his original State, of

which he is a permanent or ordinary resident, cannot be deemed to be

so in relation to any other State on his migration to that State for the

purpose of employment, education, etc. The second is Uttar Pradesh

Public Service Commission v. Sanjay Kumar Singh34 holding that

if a person certified as Scheduled Caste/Scheduled Tribe in one State

migrates to another State, then he would not be entitled to the benefit

available to Scheduled Caste/Scheduled Tribe in the State to which he

has migrated unless he belongs to the Scheduled Caste/Scheduled

Tribe in that State.

66. Scenario 2, with which we are concerned, occurs when there is a “Merit

Induced Shift”. Although this shift is largely referred to as migration,

we find in Saurav Yadav (supra) Hon’ble Ravindra Bhat, J. explaining

33 (1994) 5 SCC 244 34 (2003) 7 SCC 657

37 the term as adjustment of a reserve category candidate in the

unreserved category based on his/her merit.

67. Here, we do not see reason to agree with Mr. Gupta that any shift or

adjustment, or even migration as he contends, as such is required

where a candidate, who is also otherwise entitled to compete and be

selected for a reserved vacant post, happens to outscore, outperform

and outshine not only reserved candidates but also general candidates

and figures at the top of the list of successful candidates prepared after

a qualifying/preliminary examination (for screening/shortlisting) solely

by dint of the marks secured by him/her in such examination (without

availing any concession/relaxation) thereby entitling him/her to

participate in the second tier of a further suitability test. Such a

meritorious candidate, notwithstanding that he/she belongs to a

reserved category, be it Scheduled Caste or Scheduled Tribe or Other

Backward Class, must of necessity (arising out of the concept of

equality before law and equal protection of the laws in Article 14, and

extended to Article 16 in matters of public employment) be treated as

a candidate who has competed for the ‘unreserved’ category and not

the ‘reserved’ category, thereby obviating the need for any ‘migration’

or, so to say, shift or adjustment.

68. In a two-tier process, as in the present case, we wish to illustrate how,

generally, the exercise of screening/short-listing of candidates

(belonging to General/Open, Scheduled Caste or Scheduled Tribe or

Other Backward Class, etc., categories) with five times the number of

38 vacancies in each category, who would literally be gaining the ‘pass’

to reach the second tier to participate in the typewriting test on

computer can be conducted without complaints of unfairness and non-

transparency in the process. Say, 100 vacancies in the General/Open

category are notified and a similar number for the reserved categories

is also notified. Five times the number of vacancies would mean not

more than 500 candidates can be screened/shortlisted for the

General/Open category. At the outset, based on the performance of

the candidates who take the written test, the recruiting authority has

to screen/short-list the candidates to be included in the General/Open

category and subsequently for reserved categories. Judicial notice can

be taken that this exercise is often facilitated by preparing a broad-

sheet, also called a short-list, containing names of all the candidates

(who acquit themselves successfully in the written test). For the

preparation of the short-list for the General/Open category, candidates

are first arranged strictly in descending order of merit and, thereafter,

candidates falling short of the cut-off for such category figure in

descending order of merit according to their respective reservation

category in separate short-lists. If any candidate, say ‘C’, being the

member of a Scheduled Caste or Scheduled Tribe or Other Backward

Class, outscores the candidates not belonging to any reserved

category in the written test, he/she shall be included in the short-list

for the General/Open category. At this stage, there is no question of

any migration; merit is the only criterion amongst all candidates who

39 have to be seen as belonging to General/Open category. Once ‘C’ gains

the ‘pass’ for the second-tier process and qualifies in the typewriting

test on computer obtaining marks in excess of the requisite marks,

his/her marks obtained in such test would be required to be added to

the marks obtained in the written test. Once again, a broad-sheet has

to be prepared based on cumulative scores containing names of all the

candidates in order of highest to lowest marks with the more

meritorious candidates, obviously, figuring at the top. Preparation of

this broad-sheet is a handy tool for drawing up the final merit list of

candidates. From the broad-sheet, names of candidates drawn up in

order of merit with candidates ranked according to their marks in

descending order, commonly called the Combined Merit List, ought to

reflect where each one of the aspiring candidates stand on merit. If ‘C’

figures within the first 100 candidates in order of merit, i.e., the

number of vacant posts for the General/Open category, he/she shall

be counted as a General/Open candidate for the purpose of

appointment. Here too, there is no question of migration for the reason

we have already indicated above, i.e., merit being the only criterion

and not caste/tribe/gender, etc. If ‘C’ does not figure in the first 100

candidates and whilst preparing the merit list of reserved category

candidates it is found that he/she figures within the specified number

of vacancies in the reserved category to which he/she belongs and

which can be filled up by appointing him/her, he/she ought to be

counted as a candidate of such reserved category for appointment. If

40 ‘C’ fails to figure in the merit list for the reserved category list as well,

question of his/her appointment would not arise.

69. We, however, sound a note of caution that our observations above are

relatable to the selection process of the kind under consideration. It

has not been shown with reference to the recruitment rules that the

same ordain otherwise. If, at all, the recruitment rules governing any

selection process ordain otherwise than what is observed above,

obviously the recruitment rules would have precedence subject to the

condition that such rule passes the test of constitutionality.

70. Reverting to the appeals under consideration, we see no reason to say

that there has been a ‘migration’, in the sense of either an adjustment

or a shift being made. At the time of screening/short-listing of

candidates based on their performance in the qualifying examination

and even thereafter, initially all the aspiring candidates including the

reserved candidates should be seen as General/Open candidates. If

such a candidate, notwithstanding that he/she belongs to a reserved

category maintains excellence in standard even in the second tier of

examination (typewriting test, in this case), he/she would cease to be

treated as a candidate belonging to any category and entitled to

treatment as a candidate seeking appointment on a vacant post which

is categorised as General/Open. Should there be a decline in

performance in the second tier test pushing out the candidate from the

zone of consideration for appointment on posts which are open or

unreserved or general but not beyond the zone for the reserved vacant

41 posts, it is necessary to regard him/her as a candidate belonging to

the reserved category to which he/she belongs, thereby paving the

way for him/her to stake a claim for consideration for appointment on

an appropriate reserved vacant post.

71. In the milieu of facts, none of the petitioning candidates has been

shown to have availed of any concession/relaxation. No law – either

rule or executive instruction – has been shown which prevented the

High Court from treating the reserved candidates as General/Open

candidates once it transpired that they outshone the latter. Question

of any migration or deriving twin benefits of migration did not and

could not arise in the circumstances.

72. If we accept the proposition advanced by the appellants, it would not

only have a detrimental impact on candidates from the disadvantaged

sections but also erode the principles enshrined in the Constitution.

73. Now, turning to Chattar Singh (supra) which was heavily relied on by

the appellants, we have to record that the ratio laid down therein must

be appreciated in its proper context. In that case, the scheme of

examination clearly provided that the marks obtained in the

preliminary examination would not be considered for the determination

of final merit. The rule therein, appearing from paragraph 5 of the

decision, read as follows:

5. Rule 13 of the Rules prescribes the mode of conducting preliminary as well as Main Examination. It reads as under:

“13. Scheme of Examination, personality and viva voce test.— The competitive examination shall be conducted by the Commission in two stages, i.e., Preliminary Examination and Main Examination as per the scheme specified in Schedule III.

42 The marks obtained in the Preliminary Examination by the candidates, who are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit…” (emphasis ours)

It is in view of this rule that this Court held that the claim of reserved

category candidates to be accommodated in the open category on the

basis of marks obtained will be determined at the final stage. We find

no reason to differ from that principle. However, the facts of the

present case stand on a distinct footing. First, the main written

examination here is not a mere preliminary/screening test but an

integral and substantive component of the selection process, carrying

300 marks out of a total of 400 - constituting 75% of the final

assessment. Its weight and determinative value distinguish it from the

limited preliminary stage examination contemplated in Chattar

Singh (supra), thereby rendering that ratio inapplicable to the present

factual matrix. Secondly, the inclusion of a reserved category

candidate in the open merit list at the stage of shortlisting cannot be

equated with ‘migration’, for no benefit or concession of reservation is

availed. Such inclusion is purely merit-based and, therefore, stands on

a plane distinct from the concept of ‘migration’ as addressed

in Chattar Singh (supra).

74. Before we part, we find it necessary to enter a caveat. A situation could

arise, if the aforesaid principles were applied, of a reserved category

candidate based on his/her performance outshining General/Open

candidates and figuring in the General merit list, but finding the

43 options to be limited. He/she may, as a consequence of being counted

as a General candidate, lose out on a preferred service or a preferred

post because the same is reserved for a reserved category candidate.

Should such an eventuality occur, the same is bound to breed

dissatisfaction, disappointment and displeasure which are not in the

interests of public service. After all, fairness matters even in public

employment. Where adjustment against the unreserved category

would result in a more meritorious reserved category candidate being

displaced in favour of a less meritorious candidate within the same

category for a preferred service or a preferred post within the reserved

quota, the former must be permitted to be considered against the

service/post in the reserved quota. This would ensure merit being

preserved both across categories and within them, and that

reservation functions as a means of inclusion rather than an

instrument of disadvantage. The approach adopted by us in holding so

is consistent with the view expressed by this Court, encapsulated

in paragraph 24.1 of Alok Kumar Pandit (supra). We may also

mention here that prior to the view expressed in Alok Kumar Pandit

(supra), the High Court at Calcutta in a somewhat like situation took

the same view in Mukul Biswas v. State of West Bengal35.

75. We appreciate the proactive stance of the Division Bench of the High

Court while it rectified a situation where the High Court itself was found

to contravene constitutional ideals.

35 2010 SCC OnLine Cal 1983

44 CONCLUSION

76. For the foregoing reasons, the impugned order is upheld. As a sequel

thereto, the appeals fail and are dismissed.

77. While considering the cases of the petitioning candidates, the High

Court may endeavour not to dislodge employees in position, as

expressed by the Division Bench, as far as possible.

78. Parties shall, however, bear their own costs.

79. Time to comply with the impugned order is extended by two months

from date.

………………………………J (DIPANKAR DATTA)

…………………………………………J (AUGUSTINE GEORGE MASIH) New Delhi;

December 19, 2025.

45