Central Administrative Tribunal - Delhi
Monika Yadav vs M/O Health And Family Welfare on 25 September, 2025
1
OA No.3395/2017
Item No.59/C-4
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3395/2017
Reserved on : 20.08.2025
Pronounced on : 25.09.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Monika Yadav
Aged about 30 years
D/o Purshotam Yadav
R/o 842/2/23, Heera Nagar
Gurgaon-122001
(Aspirant for the post of Physiotherapist)
Group 'C'
... Applicant
(By Advocate : Shri Amit Anand)
Versus
1. Secretary
Ministry of Health & Family Welfare
Nirman Bhawan
New Delhi.
2. Director General Health Services
Nirman Bhawan
New Delhi.
3. Medical Superintendent
VMMC & Safdarjung Hospital
New Delhi-110029.
4. Neeraj
Roll No. 00022
(Respondent No.4 to be served through Respondent No.3)
... Respondents
(By Advocate: Mr. R.K. Sharma)
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OA No.3395/2017
Item No.59/C-4
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) The present Original Application (O.A.) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):
"(i) quashed and set aside the impugned order dated 8th September, 2017. (Annexure A-1)
(ii) to the extent that the candidate at serial number four should be given the vacancy of the general category and the next person in the OBC category candidate should be appointed in the OBC vacancy.
(iii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice."
2. Vide order dated 25.09.2017, this Tribunal by way of interim order directed the respondents that the selection/appointment of respondent No.4 shall be subject to the outcome of the present O.A.
3. The applicant is aggrieved by the action of the respondents in issuing the order dated 08.09.2017, wherein one Ms. Sobika Rao, placed at Serial No. 4 in the merit list, has been considered under the OBC category and awarded a reserved OBC vacancy. The applicant contends that Ms. Rao had topped the examination, securing higher marks than even the unreserved (UR) category candidates. As the next meritorious candidate in the OBC list, the applicant asserts that had Ms. Sobika Rao been treated as a general candidate, the reserved OBC category would rightfully fall to her. 3 OA No.3395/2017 Item No.59/C-4
4. It is submitted that as per the settled law laid down by the Hon'ble Supreme Court, a candidate who comes in the merit on its own though belongs to a reserved category, has to be considered against Unreserved vacancy. Thus, the candidate at serial number 4, Ms. Sobika Rao, who has scored highest number of marks, i.e. 63.75, in comparison to Ms. Mansi Taneja, an Unreserved candidate who has scored 46.50 marks, ought to have been considered against Unreserved category vacancy. The respondents by allocating her an OBC reserved vacancy despite her merit position, have acted contrary to the settled law, thereby rendering the Notification dated 08.09.2017 patently illegal.
5. The learned counsel for the applicant summarized the background of the case as follows:
5.1 The respondents issued a notification (Annexure A-2) for filling up four posts of Physiotherapist in the pay scale of Rs. 9300-
34800. Through corrigendum dated 18.03.2017, the vacancy distribution was revised to three UR posts and one OBC post. 5.2 A list of eligible candidates was published for the examination scheduled on 29.08.2017. Candidates at Serial Nos. 10, 14, and 20 belong to SC category and were granted age relaxation. However, since no SC-reserved posts were notified, these candidates could only be considered against UR category vacancies. Candidate at Serial No. 50 was considered under the OBC category. 4 OA No.3395/2017 Item No.59/C-4 5.3 Upon declaration of results, Ms. Sobika Rao (Sl. No. 4) emerged as the top scorer despite being from the OBC category. 5.4 The applicant contended that the settled legal position mandates that a reserved category candidate, if selected on merit, must be appointed against a general vacancy. In the present case, however, the respondents have failed to adhere to this principle by allocating the OBC-reserved vacancy to Ms. Sobika Rao, thereby depriving the applicant of her rightful claim. 5.5 It is further submitted that even if Ms. Sobika Rao availed age relaxation, it does not by itself amount to being selected on a relaxed standard. This is evident from the fact that similarly placed SC candidates who were granted age relaxation were nevertheless considered against UR vacancies due to the absence of any SC- reserved posts. Therefore, by the same reasoning, Ms. Rao, having scored higher than all general category candidates, should also be considered against a UR vacancy regardless of having availed age relaxation.
5.6 It is also submitted that the applicant is the next meritorious candidate in the OBC category. Consequently, if Ms. Sobika Rao is rightfully shifted to a UR vacancy, the OBC vacancy would fall to the applicant based on the merit list (Annexure A-4).
6. Leaned counsel for the respondents raised preliminary objection stating that the present O.A. is not maintainable since the 5 OA No.3395/2017 Item No.59/C-4 applicant has not impleaded the appropriate party, i.e. Ms. Sobika Rao who is selected against the OBC Category vacancy, as a party. Hence, the present O.A. deserves to be dismissed on the ground of non-joinder of necessary party.
6.1 He further submitted that the O.A. is not maintainable since the applicant has not exhausted the departmental remedy which is in violation of Section 20 of CAT (Procedure) Rules, 1987. 6.2 He relied upon the Department of Personnel and Training Office Memorandum No. 36011/1/98-Estt. (Res) dated 01.07.1998 highlighting para '3' of the same, which reads as under:
"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standard 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 age limit, 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."
7. In rejoinder thereto, the learned counsel for the applicant submitted that the age relaxation cannot be construed to be a relax standard which would entail and call upon the respondents to select the candidate in OBC Category. In this regard, he relied upon the decision rendered by the Apex Court in Civil Appeal No.74 of 2010 and Batch, titled as Jitendra Kumar Singh and Anr. vs. State of Uttar Pradesh and Ors., (2010) 3 SCC 119.
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8. Heard the learned counsel for the respective parties at length and perused the pleadings/judgment placed on record.
9. The principal issue arises for our consideration in the present O.A. is whether a reserved category candidate, in the present case belonging to OBC category, who has secured highest marks in all categories, can be adjusted against an Unreserved vacancy or be retained under the reserved (OBC) category, particularly when the candidate has availed the benefit of age relaxation.
10. Admittedly, the recruitment notification originally advertised four vacancies for the post of Physiotherapist, and subsequently, by corrigendum dated 18.03.2017, these were revised to three posts for the Unreserved (UR) category and one post for OBC category. The candidate at Serial No. 4, Ms. Sobika Roy, belonging to OBC category, secured highest marks, i.e. 63.75, amongst all candidates including those selected under UR category. However, she was considered and appointed under the OBC category, leaving the applicant, who is the next meritorious OBC candidate, out of selection.
11. It is contended by the applicant that as per settled law, a reserved category candidate who qualifies on merit without the aid of relaxed standards, must be adjusted against a general/unreserved vacancy, thereby ensuring that the reserved vacancy is made available for other eligible candidates from that reserved category. 7 OA No.3395/2017 Item No.59/C-4 In support of her contention, heavy reliance is placed upon the judgment of the Hon'ble Supreme Court in Jitendra Kumar Singh (supra), wherein while deciding the issue whether availing relaxation in fees/upper age limit in the reserved category would disentitle such candidates from being considered for appointment against the unreserved seats, the Apex Court elucidated as follows:-
"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. It is only thereafter that successful candidates have been permitted to participate in the open competition."
and it was held that age relaxation alone would not deprive a meritorious reserved category candidate from being considered against an unreserved vacancy, provided selection was made based on merit and not on any relaxed standard of selection (e.g., lower qualifying marks). The Apex Court emphasized the principle that meritorious reserved candidates should not be denied the opportunity to compete in the general category, merely due to age relaxation.
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12. On the contrary, the respondents have relied on the Office Memorandum dated 01.07.1998, more particularly Para 3, to argue that any reserved category candidate availing age relaxation must be considered under the reserved quota and not against general vacancies, even if their marks are higher than Unreserved candidates. Thus, Ms. Sobika Roy, having availed age relaxation, was rightly considered under the OBC category.
13. The issue raised in the present O.A. is no longer res integra. In the case of Deepa E.V. vs Union of India, 2017 (12) SCC 680, the Hon'ble Supreme Court after considering the case of Jitendra Kumar Singh (supra) as well as the circular dated 25.03.1994 issued by the State of U.P. which was considered in that case, dismissed the appeal of the petitioner who was an OBC candidate and sought to be considered in the general category after availing age relaxation. The relevant excerpts of the same read as under:
"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 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 9 OA No.3395/2017 Item No.59/C-4 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 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 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."
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 10 OA No.3395/2017 Item No.59/C-4 U.P. Act, 1994 and Government order dated 25.3.1994 which provides for entirely a different scheme."
Thus, it has been held by the Apex Court that reserved category candidates who use relaxed standards cannot be adjusted against general vacancies.
14. Similar view has been taken by the Apex Court in a recent decision dated 09.09.2025 in the case of Union of India & Ors. vs Sajib Roy arising out of SLP (C) Nos. 21392-93/2019, and it has been held as under:
"32. On an analysis of the aforecited cases, we summarise as follows:
Whether a reserved candidate who has availed relaxation in fees/upper age limit to participate in open competition with general candidates may be recruited against unreserved seats would depend on the facts of each case. That is to say, in the event there is no embargo in the recruitment rules/employment notification, such reserved candidates who have scored higher than the last selected unreserved candidate shall be entitled to migrate and be recruited against unreserved seats. However, if an embargo is imposed under relevant recruitment rules, such reserved candidates shall not be permitted to migrate to general category seats.
33. Accordingly, we hold as the respondents-writ petitioners had availed concession of age for participating in the recruitment process, in the teeth of office memorandum dated 01.07.1998, the High Court was wrong in applying the ratio in Jitendra Kumar (supra) and permitting them to be considered for appointment in the unreserved category. Consequently, we set aside the common impugned judgment and order dated 12.10.2018 and order dated 26.02.2019 and allow the appeals. Pending application(s) if any, stand disposed of."
15. In view of the settled position of law as laid down by the Apex Court in Deepa E.V. (supra), and reaffirmed in the latest decision in Sajib Roy (supra), it is now well established that reserved 11 OA No.3395/2017 Item No.59/C-4 category candidates who availed any relaxation, such as in upper age limit, cannot be considered against unreserved vacancies if there exists an express embargo in the applicable recruitment rules or office memoranda, such as the OM dated 01.07.1998 in the preset case; as these judgments have clearly distinguished the earlier decision in Jitendra Kumar Singh (supra), on the ground that it was based on a specific statutory framework and did not involve any express bar against such migration.
16. Applying the above legal principles to the present case, since Ms. Sobika Rao, an OBC candidate who has admittedly availed age relaxation as per the OM dated 01.07.1998, she cannot be considered for appointment against an unreserved/general vacancy. Consequently, the applicant being the next meritorious candidate in the OBC category, cannot claim appointment in the resultant vacancy.
17. Accordingly, the O.A. is dismissed being devoid of any merit. Pending MAs, if any, shall also stand disposed of. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/