Gujarat High Court
Gujarat Public Service Commission vs Niravkumar Dilipbhai Makwana & 16 on 15 March, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1103/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1103 of 2015
In
SPECIAL CIVIL APPLICATION NO. 1100 of 2015
With
LETTERS PATENT APPEAL NO. 1104 of 2015
In
SPECIAL CIVIL APPLICATION NO. 1141 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GUJARAT PUBLIC SERVICE COMMISSION....Appellant(s)
Versus
NIRAVKUMAR DILIPBHAI MAKWANA & 16....Respondent(s)
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HC-NIC Page 1 of 47 Created On Thu Mar 16 02:42:15 IST 2017
C/LPA/1103/2015 CAV JUDGMENT
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Appearance:
MR DG SHUKLA, ADVOCATE for the Appellant(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL for the Respondent(s) No. 2
MR AJ YAGNIK, ADVOCATE for the Respondent(s) No. 3 - 12
MR NIKHIL S KARIEL, ADVOCATE for the Respondent(s) No. 14
MR PRABHAKAR UPADYAY, CAVEATOR for the Respondent(s) No. 1
MR RITURAJ M MEENA, ADVOCATE for the Respondent(s) No. 13 , 15 - 17
MS DIMPLE A THAKER, ADVOCATE for the Respondent(s) No. 13 , 15 , 17
NOTICE UNSERVED for the Respondent(s) No. 6 , 10
SERVED BY RPAD - (N) for the Respondent(s) No. 3 - 4 , 7 - 9 , 11 - 12
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 15/03/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. These appeals are filed under Clause 15 of Letters Patent by the appellant-original respondent no.2 against common CAV judgment dated 11.6.2015 rendered by the learned Single Judge in Special Civil Application No.13857 of 2014 and allied matters including Special Civil Application No.1100 of 2015 and 1141 of 2015, whereby learned Single Judge has partly allowed the Special Civil Application Nos.1100 of 2015 and 1141 of 2015.
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2. At this stage, it is required to be noted that learned Single Judge has dealt with three types of issues in different petitions filed by the concerned petitioners. The first issue is with regard to age relaxation, second issue is with regard to women reservation and the third issue is with regard to 25% reservation for B.Sc.(Forestry). However, in the present appeals, the issue involved is with regard to age relaxation and not following the decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh and another V/s State of Uttar Pradesh and Others reported in (2010)3 SCC
119. The other appeals filed against the same impugned common judgment are not heard at this stage and are segregated.
3. As the issue involved in both these appeals is similar, both these appeals are heard and disposed off together by this common judgment. However, the facts narrated in Special Civil Application No.1100 of 2015 are recorded for the sake of convenience.
4. The factual matrix of the present case is as under:
4.1 The appellant-original respondent-
Gujarat Public Services Commission (hereinafter Page 3 of 47 HC-NIC Page 3 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT referred to as `GPSC' for short) had issued a public advertisement dated 1.3.2010 being advertisement no.209/2009-10 and corrigendum thereafter for 47 posts of Assistant Conservator of Forests (Class-II) and 120 posts of Range Forest Officer (Class-II). As per the said advertisement and corrigendum, total 84 posts are to be filled in from unreserved general category candidates, out of 84 posts from unreserved (general category) candidates, 26 posts are reserved for women candidates. 48 posts are to be filled in from SEBC category candidates. Out of 48 posts from SEBC category candidates, 18 posts are reserved for women candidates. 9 posts are to be filled in from SC category candidates, out of which 2 posts are reserved for women candidates. Similarly, 26 posts are to be filled in from ST category candidates out of which 8 posts are reserved for women candidates. It was also stipulated in the said advertisement that 25% of vacancies shall, as far as practicable, be filled up by appointing candidates who possess a BSC degree with Forestry as the principal subject. GPSC had stipulated in the said advertisement that the candidates should submit their online applications from 1.3.2010 to 6.4.2010. The details about the educational qualification, age, mode of examination-written test etc. as well as the steps to submit the application have been Page 4 of 47 HC-NIC Page 4 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT narrated in detail in the said advertisement.
4.2 The respondent-GPSC had conducted preliminary test on 30.5.2010 and main written examination was held from 27.5.2013 to 2.6.2013. The result of the main written examination was declared on 21.5.2014 and thereafter 505 candidates who cleared the main written examination were called for physical and endurance test and personal interviews from 16.6.2014 to 31.7.2014.
4.3 The petitioner submitted an application in the category of SEBC. The petitioner successfully passed the examination conducted by respondent-GPSC. In the list of selected candidates published on 25.9.2014, the petitioner was shown at serial no.138. However, the select list was challenged by various candidates based on the law laid down by Hon'ble Supreme Court in the case of Union of India V/s Ramesh Ram reported in (2010)3 SCC 254.
4.4 The respondent-GPSC had revised the result of the said examination vide notification dated 31.1.2015 and corrigendum dated 4.2.2015 as well as 7.2.2015.
4.5 It is the case of the petitioner that as Page 5 of 47 HC-NIC Page 5 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT per Rule 8(2) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 (hereinafter referred to as `the Rules of 1967') the appointing authority has been given power to relax the age limit in the prescribed qualification in favour of the candidates belonging to SCs/STs and SEBC and in favour of candidates who are women to the extent indicated therein. The say of the petitioner is that concession/relaxation is of two types. One being age relaxation and/or waiver of examination fees enabling the reserved candidates to compete with others and second being relaxation of standard in determination of merit. The petitioner has placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (Supra), wherein the Hon'ble Supreme Court has distinguished between concession and relaxation holding that concession i.e. age relaxation and waiver of examination fee to enable a reserved candidate to compete with others would not be reservation in itself for the reason that such concessions are available to other candidates also whereas the relaxation of standard in determining of merit would amount to reservation.
4.6 It is the case of the petitioner that while preparing the merit list, the respondent GPSC has ignored the decision rendered by the Page 6 of 47 HC-NIC Page 6 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra). The petitioner has therefore prayed that notification dated 25.9.2014 issued by GPSC be quashed and set aside holding that the same is not prepared as per the decision of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) and it is further prayed that respondents be directed to prepare the select list as per the ratio of the said judgment and thereafter implement the same as per the judgment of the Hon'ble Supreme Court in the case of Ramesh Ram (supra).
4.7 The learned Single Judge, by an impugned order dated 11.6.2015 passed in Special Civil Application No.13857 of 2014 and allied matters, discussed the aforesaid aspects in paragraphs 38.2 to 38.9 of the judgment. It is held by the learned Single Judge that respondent-GPSC has counted/shifted certain candidates of meritorious reserved category (from general/open category- where they secured place on their merits) in their respective reserved category on the ground that the said candidates had, at some stage, availed relaxation in upper age limit. It is also observed that GPSC has asserted that reserved category candidates who secured position in general/open category by virtue of their Page 7 of 47 HC-NIC Page 7 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT performance are counted against their respective reserved category as they availed benefit of relaxation in age and they are recommended. Learned Single Judge further observed that the action by GPSC is against the decision rendered by the Supreme Court in the case of Jitendra Kumar Singh (supra) and therefore the learned Single Judge has held that the select list which is prepared without taking into account the aforesaid decision is not sustainable and therefore the same is set aside. The said list is required to be prepared afresh.
4.8 Being aggrieved and dissatisfied with the findings recorded by the learned Single Judge as well as the order passed by the learned Single Judge in captioned petitions, respondent-GPSC has preferred the present appeals under Clause 15 of the Letters Patent.
5. Heard learned advocate Mr.D.G.Shukla for the appellant-original respondent GPSC, learned Advocate General Mr.Kamal Trivedi for respondent no.2-the State of Gujarat, learned advocate Mr.Prabhakar Upadhyay and learned advocate Mr.Gautam Joshi for original petitioners, learned advocate Mr.Nikhil Cariel for respondent no.14, learned advocate Mr.Dimple Thaker for learned advocate Mr.Ruturaj Meena for respondent Page 8 of 47 HC-NIC Page 8 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT nos.13,15 and 17.
5.1 Learned advocate Mr.Shukla appearing for the appellant-GPSC submitted that the State Government, in exercise of the powers conferred by the proviso of Article 309 of the Constitution of India, framed Rules of 1967. Rule 8(2) of the Rules of 1967 empowers the appointing authority to relax the age limit in the prescribed qualifications for both the candidates belonging to schedule castes, scheduled tribes and SEBC as well as in favour of the candidates who are women to the extent stated in the said Rules. It is submitted that the State, in exercise of the powers under Article 309 of the Constitution, has also framed the Rules for Assistant Conservator of Forests/Range Forest Officer's Competitive Examination Rules, 2008 (hereinafter referred to `Examination Rules of 2008' for short).
5.2 It is submitted that the State Government in its General Administrative Department vide Government Resolution dated 11.12.1986 formulated the policy to the effect that the members belonging to the Scheduled Castes and Scheduled Tribes selected for the appointment by direct selection to any service or post included in the State Services or in the Subordinate Services on the basis of their merit, Page 9 of 47 HC-NIC Page 9 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT they shall be considered for appointment on unreserved post which are filled in on merit along with other general candidates and such appointment on merit of the members belonging to such castes and tribes shall, in no way, affect the claims of the members of such castes and tribes for appointment in the services or on the post reserved for them under the Government orders issued from time to time.
5.3 It is submitted that as per the instructions regarding the business of Government issued under Rule 15 of the Gujarat Government Rules of Business, 1990, cases which affect or likely to affect the interest of the Schedules Castes and Scheduled Tribes fall within the purview of the Hon'ble the Chief Minister to take a decision and accordingly the aforesaid policy decision was put up before the Hon'ble the Chief Minister for his decision and the Hon'ble the Chief Minister approved the note.
5.4 At this stage, it is pointed by learned advocate Mr.Shukla for the appellant-GPSC that the Ministry of Personnel, Public Grievances and Pensions Department, vide office Memorandum No.36012/13/88-ESTT.(SCT) dated 22.5.1989 formulated a policy in favour of Scheduled Castes and Scheduled Tribes category. Thereafter, the Page 10 of 47 HC-NIC Page 10 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT said Ministry, issued office memorandum dated 1.7.1998 by which the said department clarified the earlier memorandum and it was stated that in cases of direct recruitment, SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. However, in this connection, it was 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 SC/ST/OBC candidates, for example, the age limit, experience qualification, permitted number of changes 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.
5.5 At this stage, learned advocate Mr.Shukla submitted that the State Government has issued circular dated 29.1.2000 whereby the State Government clarified that reserved category candidate if has not availed of any relaxation viz.age limit, experience, qualification, number of chances to appear in the examination then in Page 11 of 47 HC-NIC Page 11 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT that case the said candidate will be adjusted in the open category and in case if the candidate has availed of any of the aforesaid relaxations, the candidate will have to be adjusted against the reserved category. Learned advocate Mr.Shukla submitted that candidates appointed in the category of Scheduled Castes, Scheduled Tribes and OBC to the post of Class II and III in the State services in Gujarat are being covered by the said policies.
5.6 Learned advocate Mr.Shukla further contended that the learned Single Judge has committed an error by relying upon the decision rendered by the Supreme Court in the case of Jitendra Kumar Singh (supra). It is contended that the policy framed by the State of Gujarat is different than the policy of State of Uttar Pradesh. The question before the Hon'ble Supreme Court was with regard to interpretation of U.P.Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 and the instructions dated 25.3.1994 and Government Resolution dated 26.2.1999. The policy applicable to the present case and prevailing in the State of Gujarat cannot be equated with the policy which is framed by the State of Uttar Pradesh and therefore the said decision is not applicable. In spite of Page 12 of 47 HC-NIC Page 12 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT that, the learned Single Judge has given the impugned directions to the appellant-GPSC.
5.7 Learned advocate Mr.Shukla has placed reliance upon the decision in the case of Ramesh Ram(Supra) and contended that the Hon'ble Supreme Court in the aforesaid judgment categorically held that if the MRC candidate, after declaring the result and at a later stage of allocation of service, invokes his reserved category status and takes the benefit of reservation for allotment of service, such migrated MRC candidates are required to be adjusted against the respective reserved post. Likewise, the reserved category candidate, who has entered into the competitive examination only because of availing the benefit of relaxation in upper age, despite the fact that he has secured more marks than general candidate, are also to be counted against the reserved post. Learned advocate has placed reliance upon the observation and findings recorded by the Hon'ble Supreme Court in paragraphs 39 and 42 of the said decision.
5.8 Learned advocate Mr.Shukla has lastly contended that it is only after the availment of the relaxation in the upper limit that the candidate concerned will be allowed to compete in Page 13 of 47 HC-NIC Page 13 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT the examination and therefore, if at the entry point, the concerned candidates have availed the benefit of relaxation in the upper age limit, the said candidate has to be treated against the reserved category post and not in the general category. In other words, the candidate concerned is to be treated as unavailable for the general category. Relying upon the provision of Rule 8(2) of the Rules of 1967, it is submitted that the said relaxation in the age limit is nothing but the relaxation in standard of eligibility provided to all the candidates for competing in the direct selection for appointment and thus, by no stretch of imagination it can be inferred that the relaxation in the age limit is a concession and not a relaxation in standard.
5.9 Learned advocate Mr.Shukla at this stage pointed out that the Division Bench of this Court in the case of Gujarat Public Service Commission through Secretary V/s Parmar Nilesh Rajendrakumar and Ors., reported in 2015(3) GLH 481, has considered the similar issue and the Division Bench, after considering the various decisions rendered by the Hon'ble Supreme Court including the decision rendered in the case of Jitendra Kumar Singh (supra), held in favour of the appellant-GPSC. It is further submitted that the judgment rendered in the case of Parmar Nilesh Page 14 of 47 HC-NIC Page 14 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT Rajendrakumar (supra) was challenged before the Hon'ble Supreme Court. However, the Hon'ble Supreme Court has dismissed the Special Leave Petition, by an order dated 18.2.2016.
5.10 Learned advocate Mr.Shukla has further submitted that the learned Single Judge ought to have dismissed the petition for non-joinder of necessary parties. It is contended that the petitioner had not joined the necessary and affected parties. In support of such contention, learned advocate has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Ranjan Kumar etc.v/s State of Bihar and others, reported in 2014 AIR SCW 2968.
5.11 Learned advocate Mr.Shukla therefore submitted that the impugned order passed by the learned Single Judge be set aside and the present appeals be allowed.
6. Learned Advocate General Mr.Trivedi appearing for the respondent-State has supported the submissions canvassed on behalf of learned advocate Mr.Shukla appearing for the appellant- GPSC. It is submitted by the learned Advocate General that Article 16(1) of the Constitution of India provides for fundamental right relating to the doctrine of equality of opportunity in the Page 15 of 47 HC-NIC Page 15 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT matters of employment and appointment to any office in the State, whereas Article 16(4) of the Constitution of India does not confer any fundamental right nor does it impose any Constitutional duty but is only in the nature of enabling provision vesting a discretion in the State to consider for providing reservation in favour of backward class. Apart from providing for reservation as aforesaid, under Article 16(4) of the Constitution of India, it is purely a matter of discretion on the part of the State Government to formulate a policy for concession, exemptions, preferences or relaxation either conditionally or unconditionally in favour of backward classes of citizens and thus, no writ of mandamus can be issued to the State Government to provide for such concessions, exemptions, preferences or relaxation.
6.1 Learned Advocate General thereafter referred to the Government Resolutions dated 1.10.1974, 23.2.1994 and 1.3.2000 whereby the State Government has framed the policy of providing reservation for backward classes to the extent of 7% in favour of scheduled castes, 14% in favour of scheduled tribes and 27% in favour of SEBC. Thereafter, it is contended that by Government Resolution dated 11.2.1986, the government has provided that if any MRC candidate Page 16 of 47 HC-NIC Page 16 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT gets selected on the basis of his own merit in an open competition with general category candidates, he would be given the said position and would not be adjusted against the vacancies meant for the reserved category candidates.
6.2 At this stage, learned Advocate General has referred to the Office Memorandum issued by the Ministry of Personnel, P.G. & Pensioners Department of Personnel & Training, New Delhi on 1.7.1998 and thereafter submitted that the State Government has issued similar circular dated 29.1.2000 which was followed by circular dated 23.7.2004. It is submitted that both these circulars have been issued in exercise of powers flowing from the Gujarat Government Rules of Business, 1990 read with instructions regarding business of the Government issued under Rule 15 thereof. It is always permissible for the State to formulate its policy either through legislation or through Government Resolution or Circular or administrative instructions. It is submitted that the policy decision of the Government of Gujarat through the aforesaid two circulars is somewhat similar to Rule 16 of the Civil Service Examination Rules, which came to be upheld by the Hon'ble Supreme Court in the case of Ramesh Ram (supra). It is submitted that the decision rendered by the Hon'ble Supreme Court in Page 17 of 47 HC-NIC Page 17 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT the case of Jitendra Kumar Singh (supra) is the judgment confined to the facts of the said case where the issue before the Hon'ble Supreme Court was with regard to the interpretation of legislation framed by the U.P.Government. Learned Advocate General has also placed reliance upon the decision rendered by the Division Bench of this Court in the case of Parmar Nilesh Rajendrakumar (supra) and submitted that the issue involved in the present case is squarely covered by the said decision and therefore the impugned order passed by the learned Single Judge in the captioned petition be set aside.
7. On the other hand, learned advocate Mr.G.M.Joshi appearing for the original petitioner has supported the reasoning recorded by the learned Single Judge and more particularly the findings recorded in paragraphs 38.2 to 38.9 of the impugned judgment. Learned advocate Mr.Joshi has submitted that the learned Single Judge has rightly placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra). It is submitted that the Hon'ble Supreme Court has framed the issue in paragraph 43 that whether the relaxation in fee and upper age-limit of five years in the category of OBC candidates would fall within the definition of "reservation" to Page 18 of 47 HC-NIC Page 18 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT exclude the candidates from open competition on the seats meant for the general category candidates. The Hon'ble Supreme Court, after discussion, observed in paragraphs 48 and 49 as under:
"48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list.
49. It is permissible for the State in view of Articles 14,15,16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation.Page 19 of 47
HC-NIC Page 19 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of th reserved category candidates."
7.1 It is therefore submitted that the Hon'ble Supreme Court has held that the concessions and relaxations place the candidates at par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates and therefore the concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list. It is therefore submitted by learned advocate Mr.Joshi that the learned Single Judge has rightly placed reliance upon the aforesaid decision and given the necessary direction to the appellant-GPSC.
7.2 Learned advocate Mr.Joshi has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Ajithkumar P. & Others V/s Remin K.R.& Others, in Civil Appeal No.8536 of 2015 and more particularly observations in paragraphs 25 and 26 which read as under:
Page 20 of 47HC-NIC Page 20 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT "25. In our opinion, the conclusion reached by the High Court is erroneous. The preliminary examination for shortlisting candidates who would be eligible to take the Rule 3 examinations has no statutory basis.
Neither the Kerala S & S Rules nor the Rules of Procedure contemplate such preliminary examination. However, this Court recognized existence of a legal authority to conduct a preliminary examination wherever an unmanageably large number of applications are received for filing up a limited number of posts. Rule 14(e) of the Kerala S & S Rules and Rule 4 of the Rules of Procedure relief upon by the High Court refer to `ranked list'
- a defined expression under Rule 2(g) of the Rules of Procedure. Such `ranked-list' is prepared only pursuant to the Rule 3 examinations. A preliminary screening test is outside the purview of the Rule 3 examinations. Therefore, irrespective of the content of Rule 14(e) of the Kerala S & S Rules or the 3rd proviso to rule 4 of the Rules of Procedure relied upon by the High Court, these Rules can have no application in the context of preparation of a `shortlist' pursuant to a preliminary examination.
26. Therefore, the basic premise on which the High Court sought to distinguish the three judgments' relied upon by the appellants (referred to supra) is legally untenable. The impugned judgment rightly understood the 3 judgments relied upon by the appellants herein as laying down a principle that a relaxation or concession given at the preliminary stage cannot have any relevance in determining the merit of the candidate."
7.3 Similarly, learned advocate Mr.Joshi has placed reliance on the decision in the case of Vikas Sankhala & Ors.etc. V/s Vikas Kumar Agarwal & Ors.etc., in Civil Appeal Nos.3545-3549 of 2016 Page 21 of 47 HC-NIC Page 21 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT rendered on 18.10.2016. In the said case, the Hon'ble Supreme Court has referred and relied upon its earlier decision rendered in Jitendrakumar (supra) and others and observed as under:
"25. It so happened that many candidates who belonged to reserved category got higher marks than the last candidates from the general category who was selected for the appointment in the said recruitment process. In terms of its various circulars, which we shall refer to 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."
7.4 Learned advocate Mr.Joshi submitted that the decision rendered by the Division Bench of this Court in the case of Parmar Nilesh Rajendrakumar (supra) would not be applicable in the facts of the present case and therefore no reliance can be placed upon the said decision. It is further submitted that when there is a direct Page 22 of 47 HC-NIC Page 22 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) and Vikas Sankhala (supra), the reliance placed by the learned advocate for the appellant on the decision rendered by the Division Bench in the aforesaid case is misconceived.
7.5 Learned advocate Mr.Joshi therefore submitted that there is no merit in the present appeals and therefore no interference is required in the impugned order passed by the learned Single Judge.
8. Learned advocate Mr.Upadhyay appearing for the original petitioner in other appeal has also adopted the submissions canvassed by learned advocate Mr.G.M.Joshi.
9. Learned Advocate General Mr.Trivedi as well as learned advocate Mr.Shukla appearing for the State and GPSC respectively in rejoinder submitted that the decision rendered by the Hon'ble Supreme Court in the case of Vikas Sankhla and Ajithkumar (supra), are not applicable to the facts of the present case. It is submitted that in the State of Uttar Pradesh and Rajasthan, there is an express policy of the State Government to the effect that despite the personnel of reserved category being selected on Page 23 of 47 HC-NIC Page 23 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT the basis of merit, after having availed of relaxation in age limit, he will not be adjusted against vacancies meant for reserved category candidates who will be adjusted against general category candidates. It is submitted that so far as the State of Kerala is concerned, there has been no express policy in this behalf either way and hence in absence of any policy, the State adopted the practice as prevailing in the State of U.P. and Maharashtra and therefore the Hon'ble Supreme Court in the aforesaid cases considered such policies whereas in the State of Gujarat there is a different policy in the form of Government Resolution dated 11.2.1986 and circular dated 29.1.2000 and 23.7.2004. Therefore, the aforesaid decisions of the Hon'ble Supreme Court are not applicable.
10. Having heard the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, the issue which is required to be decided in the present appeals is whether the judgment of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) would be applicable to the facts of the present case or not and whether the relaxation of age can be said to be relaxation in standard or the same can be said to be concession?
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11. For deciding the aforesaid issue, following important aspects are required to be considered:
11.1. That the State Government in exercise of powers conferred by provision of Article 309 of the Constitution of India made the Rules of 1967 vide notification dated 10.10.1967. As per sub-
rule (2) of Rule 8, the appointing authority has been given powers to relax the age limit in favour of the candidates belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class and in favour of candidates who are women to the extent indicated therein.
11.2. That the Ministry of Personnel, Public Grievances and Pension Department vide Office Memorandum No.36012/13/88EST(SCT) dated 22.5.1989 formulated a policy in favour of Scheduled Castes and Scheduled Tribes category, in tune with the provision of Clause (4) of Article 16 of the Constitution of India, which enables the State Government to provide for reservation for the category of persons belonging to the backward classes. That thereafter, the Ministry of Personnel, Public Grievances and Pension Department vide Office Memorandum dated 1.7.1998 Page 25 of 47 HC-NIC Page 25 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT clarified the earlier Office Memorandum dated 22.5.1989.
11.3. That in the meantime, the State Government in its General Administration Department vide Government Resolution dated 11.12.1986 formulated a policy to the effect that the members belonging to the Scheduled Castes and Scheduled Tribes selected for the appointment by direct selection to any service or post included in the State Services or in the Subordinate Services on the basis of their merits, such members shall be considered for appointment on unreserved posts, which are filled in on merit along with other general category and such appointment on merits of the members belonging to such castes and tribes shall in no way affect claims of the members of such castes and tribes for appointment in the services or on the post reserved for them under the Government orders issued from time to time. At this stage, it is required to be noted that it is the case on behalf of the State Government that as per the instruction regarding the business of Government issued under Rule 15 of the Gujarat Government Rules of Business, 1990, cases which affect or likely to be affected, the interest of Scheduled Castes and Scheduled Tribes fall within the purview of the Hon'ble the Chief Minister to take a decision and Page 26 of 47 HC-NIC Page 26 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT accordingly, the aforesaid policy decision dated 11.12.1986 was put up before the then Hon'ble Chief Minister for his decision and the then Hon'ble the Chief Minister approved the note. Therefore, it is the case on behalf of the State Government that the aforesaid final decision was taken by the Hon'ble the Chief Minister and not the Council of the Ministers.
11.4. That thereafter, the State Government vide Circular No.PVS-1099-MVN-13-G-4 dated 29.1.2000 clarified that a reserved category candidate, if has not availed of any relaxation viz. age limit, experience qualification, number of chances to appear in the examination, in that case, the said candidate will be adjusted in the open category and in case, if the candidate has availed any of the aforesaid relaxation, the candidate will have to be adjusted against the reserved category seats.
11.5. That thereafter, the State Government, in its, General Administration Department, came out with a further clarity vide Circular No.PVS- 102003-900-G-4 dated 23.07.2004. That in the said circular, it was clarified that reserved category candidate while competing with the unreserved category candidate gets selected on its own merits without availing of any of the relaxation Page 27 of 47 HC-NIC Page 27 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT available to the reserved category candidates then in that case, the said candidate will be considered in unreserved category. In other words, if any candidate while competing with unreserved category candidate, has availed of any of the relaxation as indicated in the circular dated 23.07.2004 then, in that case, the said reserved category candidate will have to be considered against the reserved quota and he or she will not be entitled to be adjusted in the unreserved category quota.
11.6. Thus, the appointments, in the category of Scheduled Castes and Scheduled Tribes and other backward class, to the post of Class I to Class III in the State Services are being governed by the aforesaid policies and State Government and/or any Authorities effecting direct appointments are required to give an effect adhering to the aforesaid policy decision at the time of recruitment process viz.preparing the select list etc.
12. The State of Gujarat framed the rules for regulating the recruitment to the post of Assistant Conservator of Forests in Gujarat Forest Services Class II namely Assistant Conservator of Forests in the Gujarat Forest Service Class II recruitment Rules 2007:
Page 28 of 47HC-NIC Page 28 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT "(i) The Assistant Conservator of Forests in the Gujarat Forest Service, Class-II Recruitment Rules, 2007
(ii) The Assistant Conservator of Forests in the Gujarat Forest Service Class-II Recruitment (Amendment) Rules, 2008.
(iii) The Assistant Conservator of Forests in the Gujarat Forest Service, Class-II Recruitment (Amendment) Rules, 2009."
13. Similarly, the State of Gujarat has made the following rules for regulating recruitment to the post of Range Forest Officer Class II:
"(i) The Range Forest Officer, Class-II Recruitment Rules, 2008.
(ii) The Range Forest Officer, Class-II, Recruitment (Amendment) Rules, 2008.
(iii) The Range Forest Officer, Class-II, Recruitment (Amendment) Rules, 2009."
14. The State Government in exercise of powers under Rule 309 of Constitution vide notification dated 18.9.2008 framed the Examination Rules of 2008.
15. The GPSC published the advertisement in the newspaper inviting applications from the eligible candidates for the post of Assistant Conservator of Forests and Range Forest Officer Class II on 1.3.2010. In the advertisement itself, for upper age limit, relaxation was Page 29 of 47 HC-NIC Page 29 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT granted for the candidates belonging to SC/ST and SEBC category. It was also specifically stated in the advertisement that if the candidates belong to reserved category who applies in the open category, such candidate would not get the benefit of age relaxation. Such age relaxation was granted in pursuance to Rule 8 of Rules of 1967.
"8. Condition as to prescribed qualifications:
1)xxxx
2)Where the prescribed qualification include a qualification as to age limit the appointing authority may relax the age limit in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class and in favour of candidate who are women to the following extent, that is to say:
(a) in the case of a service or post in a subordinate service or of a State Service in respect of which the prescribed age limit does not exceed forty years, the age limit may be relaxed to the extent of five years.
(b) in the case of service or post in the State Service in respect of which prescribed age limit exceeds forty years, the age limit may be relaxed to the extent of maximum five years, so as to provide that upper age limit for entry in the service does not exceed forty five years.
c) substituted as clause (b) above.
xxxx"
16. The petitioner submitted an application in the category of SEBC in pursuance of the advertisement issued by GPSC and successfully Page 30 of 47 HC-NIC Page 30 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT passed the examination and list of selected candidates was published on 25.9.2014 wherein he was shown at sr.no.138. However, the said list was challenged by various candidates based on the law laid down by the Hon'ble Supreme Court in the case of Ramesh Ram (supra).
17. Learned Single Judge, in the captioned petitions, held that the decision of respondent- GPSC of considering the candidates who availed benefit of relaxation/reservation though they have not availed benefit of relaxation in qualifying standard is contrary to the judgment of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) and therefore the said decision was set aside.
18. While considering the aforesaid issues in the present appeals, at this stage, we would like to refer to the resolution dated 11.12.1986, circular dated 29.1.2000 and circular dated 23.7.2004 by which the State of Gujarat has framed the policies with regard to giving reservation to SC/ST and OBC and to consider the issue of age relaxation as well as exemption in payment of fees. The said resolution and circular are as under:
"Resolution dated: 11.12.1986 The Point no.1 of the agreement dated Page 31 of 47 HC-NIC Page 31 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT 4th June, 1986 arrived a between the representatives of the Gujarat Karmachari Utkarsh Mandal (Action Committee) and the State Government is as under :
1. In the direct recruitment, the candidate belonging to the SC/ST for whom reservation is made and who come on merit will be counted against non reserved vacancies. The reservation percentage will be applied in addition to those who come on merit.
2. After careful consideration, the Government has decided to implement the above agreement and is accordingly pleased to decide that where members belonging to the Scheduled Castes and the Scheduled Tribes are selected for appointment by direct selection to any service or post included in the State Services or the Subordinate Services and Panchayat Services on the basis of merit, then such members shall be considered for appointment on unreserved posts which are filled in on merit, along with other candidates not belonging to such Castes and Tribes and such appointment on merit of the members belonging to such Castes and Tribes shall not, in any way, affect the claims of the members of such Castes and Tribes for appointment in the services or on the posts reserved for them under the Government orders issued from time to time.
3. These orders will also be applicable in case of semi- direct recruitment scheme in which there is reservation for SC/ST candidates.
4. The SWD will monitor implementation Page 32 of 47 HC-NIC Page 32 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT of this GR as done in cases of other GRs regarding roster and reservation system.
However, in case of this GR, the SED will forward to GAD quarterly progress report will all necessary details.
5. These orders will take effect from the date of agreement with the Gujarat Karmachari Utkarsh Mandal i.e. date 4th June, 1986.
6. All departments of the Secretariat are also instructed to ensure the implementation of this policy in the Statutory Bodies, Public Undertakings, Grant in Aid Bodies and such other similar autonomous bodies under their administrative control.
7. The Secretariat departments and all Heads of Departments are requested to implement the above instructions scrupulously.
Circular Date: 29.1.2000 In the Government Resolution issued by G.A.D. Dated 8/3/1999 shown under Reference No. (3), and in the circular shown under Reference No. (5), there are such a provision and the clarification that in the cases of direct recruitment, the persons belonging to Scheduled Caste/Scheduled Tribe/Socially and Educationally Backward Classes selected and appointed on the basis of their merit, and not on the basis of reservation, are not to be taken into consideration against the fixed quota of reservation, that is to say, they shall have to be considered as the candidates of General Category by giving them a place in the roster against the unreserved posts. In this connection, Page 33 of 47 HC-NIC Page 33 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT the matter of the issuance of certain clarifications in respect of the office yadi shown under Reference No. (5) of the Ministry of Personnel, Public Grievances and Pensions, (Personnel and Training Department), Government of India dated 1/7/1998 was under
consideration of the Government. It is hereby clarified at the end of due and careful consideration of this matter that only such SC/ST/SEBC candidates who are selected on the same standard as applied to the candidates from General Category shall have to be taken into consideration/adjusted against the unreserved posts instead of the reserved posts. When a relaxed standard is applied in selecting a candidate from SC/ST/SEBC category, for example in the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what has been adopted for the candidates of General Category etc., the candidates of SC/ST/SEBC selected in this manner shall have to be considered against their reserved posts. Such candidates would be deemed as unavailable for consideration against unreserved posts.
2. The procedure in accordance with the aforesaid clarifications shall have to be followed at the time of implementing the Government Resolution dated 8/3/1999 shown in the Reference.
By the order and in the name of the
Governor of Gujarat.
Circular dated 23.07.2004
As per the instructions issued vide circular of General Administration Page 34 of 47 HC-NIC Page 34 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT Department of government under the reference (2) dated 29/1/2000, only the candidates of SC / ST / SEBC, who have been selected on the basis of same standard which has been applied to candidates of general category, shall be considered / adjusted against unreserved posts instead of their reserved posts.
When standard of relaxation has been applied for the selection of candidates of SC / ST / SEBC with regard to age limit, qualification of experience, number of attempts admissible in written examination and other standards considered for them in more expanded field than the standards applied for the candidates of general category, such selected candidates of SC / ST / SEBC shall be considered against their reserved posts. Such candidates are considered to be available against unreserved posts.
(2)As per aforesaid instruction, if the candidates of reserved category have been given relaxation in competitive examination or in the qualifying standards for personal interview and if they have been given exemption from paying examination fees, whether such candidates of reserved category should be considered against the posts of unreserved candidates or not? or whether they can compete or not? The matter to issue clarifications in this regard was under consideration of government. At the end of careful consideration by the government, it has been clarified that the candidates of SC / ST / SEBC who have been selected in competitive examination on their merits without taking benefit of any relaxation as per prescribed standards for candidates of unreserved category, shall not be Page 35 of 47 HC-NIC Page 35 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT adjusted against reserved posts. But, the candidates of SC / ST / SEBC who have been selected by getting relaxation in qualifying marks of competitive written examination and interview shall be considered against unreserved posts. In spite of this, candidates of reserved category who have been exempted from paying examination fees, shall not be restricted from competition for unreserved vacancies.
(3)At the time of implementing the resolution of GAD dated 8/3/99 as mentioned against Reference (1), the procedure shall have to be conducted in accordance with aforesaid clarifications.
By order and in the name of the Governor of Gujarat."
19. Keeping in mind the aforesaid policies framed by the State of Gujarat, if the decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) is examined, it is revealed that the Hon'ble Supreme Court was considering the policy prevalent in the State of U.P., more particularly, instructions dated 25.3.1994 and G.O.dated 26.2.1999 prevailing in the State of Uttar Pradesh which are distinct and different from the policy applicable in the State of Gujarat. In paragraph 65 of the said decision, the Hon'ble Supreme Court has specifically observed that "We are concerned with the interpretation of 1994 Act, the instructions dated 25.3.1994 and G.O.dated 26.2.1999."
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20. Thus, in the said case, Hon'ble Supreme Court was considering the provisions contained in U.P.Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) of Act of 1994. Section 8 of the said Act empowers the State Government to grant such concession in respect of fee and relaxation in upper age limit as it may consider necessary and in exercise of the said powers, the State Government issued government instructions dated 25.3.1994 giving relaxation specifically mentioning that "it shall be immaterial that he has availed of any facility or relaxation (like relaxation in age limit) available to reserved category candidates". Thus, in the said facts, the Hon'ble Supreme Court held that since the State has 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 and thus, such relaxation cannot deprive a reserved category candidate of the right to be considered as general category candidate on the basis of merit in the competitive examination.
21. Thus, if we compare the policy prevailing in the State of Gujarat and declared Page 37 of 47 HC-NIC Page 37 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT by State vide Government Resolution dated 11.12.1986, Government Resolution dated 18.3.1999 and the policy decision vide circulars dated 29.1.2000 and 23.7.2004, the policy of the State of Gujarat is different than the U.P.Act considered by the Hon'ble Supreme Court. At this stage, it is also required to be noted that the aforesaid policy framed by the State of Gujarat has been followed consistently since many years and reserved category candidates who have availed the benefits of age relaxation, his case is considered in the reserved quota as per the circular dated 29.1.2000 and 23.7.2004.
22. Thus, in view of the policy of the State of Gujarat discussed hereinabove, the reliance placed by learned advocate for the petitioners on the decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) is misconceived.
23. At this stage, it is also required to be noted that in the captioned petitions, the petitioners had not challenged the government circulars dated 29.1.2000 and 23.7.2004 and had not prayed to quash and set aside the said decision of the State contained in the said circulars.
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24. From the advertisement produced on record, it is revealed that in the advertisement itself inviting applications for the post in question, there is specific mention with regard to age relaxation. It is stated that the candidates belonging to reserved category shall be entitled to five years age relaxation. It is further provided that those reserved category candidates who applied for general category vacancy shall not be entitled for age relaxation. Thus, the candidates including the original petitioners were made to understand that if they apply for the general category vacancy, they shall not be entitled to age relaxation. Thus, the petitioners, though aware about the aforesaid conditions mentioned in the advertisement itself, did not challenge the same and participated in the process of recruitment with open eyes and therefore at this stage it is not open for the petitioners to contend that age relaxation being a concession cannot be construed as relaxation in standard and therefore the SC/ST/SEBC candidates have to be adjusted in the general category.
25. In the case of Ranjan Kumar etc. (supra), the Hon'ble Supreme Court has held in paragraph 16 as under:
"16. In Union of India and Ors.v.S.Vinod Kumar and Ors., the Court reiterated the Page 39 of 47 HC-NIC Page 39 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same."
26. Even the Hon'ble Supreme Court, in the case of Union of India and Others V/s S.Vinodh Kumar and Others, reported in (2007)8 SCC 100 observed and held in paragraph 18 as under:
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same."
27. In the case of Vikas Sankhla (supra) as well as Ajithkumar (supra), the Hon'ble Supreme Court was dealing with the policy formulated by the State of Rajasthan as well as State of Kerala respectively. If we carefully examine the aforesaid two decisions, it can be said that the State of Gujarat is having different policy and therefore the aforesaid two decisions upon which the reliance is placed by learned advocate Mr.Joshi appearing for the original petitioners would not render any assistance to him.
28. In the case of Ramesh Ram (supra), the Hon'ble Supreme Court has held in paragraphs 39 and 42 as under:
Page 40 of 47HC-NIC Page 40 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT "39. A significant aspect which needs to be discussed is that the aggregate reservation should not exceed 50% of all the available vacancies, in accordance with the decision of this Court in Indra Sawhney vs.Union of India. If MRC candidates are adjusted against the reserved category vacancies with respect to their higher preferences and the seats vacated by them in the general category are further allotted to other reserved category candidates, the aggregate reservation could possibly exceed 50% of all the available post.
42. Therefore, we are of the firm opinion that MRC candidates who avail the benefit of Rule 16(2) and are eventually adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas.
The seats vacated by MRC candidates in the general pool will therefore be offered to general category candidates. This is the only viable solution since allotting these general category seats (vacated by MRC candidates) to relatively lower-ranked reserved category candidates would result in aggregate reservations exceeding 50% of the total number of available seats. Hence, we see no hurdle to the migration of MRC candidates to the reserved category."
29. The Division Bench of this Court in the case of Parmar Nilesh and others (supra) has considered various decisions rendered by the Hon'ble Supreme Court including the decision in the case of Jitendra Kumar Singh (supra) and after considering the same, the Division Bench of this Court has set aside the decision rendered by the learned Single Judge in the said case and in Page 41 of 47 HC-NIC Page 41 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT concluding paragraph observed in paragraphs 18 and 19 as under:
"18. The sum and substance of the aforesaid discussions would be that learned Single Judge has materially erred in observing and holding that the relaxation in the age to the candidates belonging to the reserved category cannot be construed as relaxation in standard the same being concession and therefore, reserved category candidates who availed the benefit of age relaxation shall have to be adjusted in the General Category vacancies. The learned Single Judge has also materially erred in not dismissing the petition on the ground of non joinder of necessary parties. The learned Single Judge has also materially erred in considering the subsequent circulars dated 29.01.2000 and 23.07.2004 in conflict with the Government Resolution dated 11.12.1986 and has materially erred in not relying upon the said circulars dated 29.01.2000 and 23.07.2004. That the learned Single Judge has also materially erred in heavily relying upon the Examination Rules, 1979 while holding that relaxation in the age cannot be said to be relaxation in standard and it can be considered to be concession, despite the specific provisions in the statutory Recruitment Rules, 1967, 2009 and 2010 which provide and contain a specific upper age limit. That the learned Single Judge has materially erred in relying upon the decision of the Hon'ble Supreme Court in the case of Jitendrakumar Singh (supra). The learned Single Judge has also erred in not dismissing the petition on the ground of estoppel and acquiescence by the original petitioners and in not properly appreciating the fact that despite the specific clause in the advertisement inviting the applications for the post in question with respect to age Page 42 of 47 HC-NIC Page 42 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT relaxation and a specific clause that those reserved category candidate who avail the benefit of age relaxation shall not be entitled to apply for the General Category vacancies, they participated in the recruitment process and having failed to secure their place in the merit list, thereafter it was not open for them to challenge the same. Under the circumstances, impugned judgment and order passed by the learned Single Judge deserve to be quashed and set aside.
19. For the reasons stated above and considering the reservation policy applicable in the State of Gujarat contained in circular dated 29.01.2000 and 23.07.2004 and relevant statutory provisions i.e. Recruitment Rules, 1967, 2009 and 2010, it is held that all those candidates belonging to the reserved category if they avail the benefit of age relaxation, it is held to be relaxation in the standard, and therefore, are not entitled to their cases being considered for the reserved category vacancies."
30. At this stage, it is relevant to note that the aforesaid decision rendered by the Division Bench of this Court was challenged before the Hon'ble Supreme Court by filing SLP Nos.2676-2677 of 2016. The Hon'ble Supreme Court by an order dated 18.2.2016 dismissed the SLPs. We are also in agreement with the decision rendered by the Division Bench of this Court in the case of Parmar Nileshbhai and others (supra).
31. Learned Advocate General is right in submitting that Article 16(4) of the Constitution Page 43 of 47 HC-NIC Page 43 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT of India does not confer any fundamental right not does it impose any constitutional duty but is only in the nature of enabling provision vesting a discretion in the State to consider for providing reservation in favour of backward class. Thus, it is purely a matter of discretion of the State Government to formulate the policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of backward classes of citizens. As discussed hereinabove, the State Government has framed the policy for grant of reservation in favour of SCs/STs and OBC. However, by circular dated 29.1.2000 and 23.7.2004, the State Government has clarified that when a relax standard is applied in selecting a candidate for SC/ST/SEBC category for example, in the age limit, experience, qualification, permitting number of chances in written examination etc., then candidates of such category selected in this manner shall have to be considered against their reserved posts. Such candidates would be deemed as unavailable for consideration against unreserved posts. At this stage, it is also required to be noted that the aforesaid policy is not under challenge in the petition filed by the petitioners and therefore no mandamus can be issued to the respondent- authorities.
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32. At this stage, it is also required to be noted that the petitioner has not joined necessary and affected parties in the petition and therefore in absence of the necessary and affected parties before the learned Single Judge, we are of the view that the learned Single Judge has committed error while quashing the select list and giving direction to the appellant-GPSC.
33. In the case of Ranjan Kumar (supra), the Hon'ble Supreme Court has held in paragraph 12 as under:
"12. In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners."
34. Keeping in view the decisions rendered by the Hon'ble Supreme Court as well as this Court discussed hereinabove and in view of the discussion made by us in the aforesaid paragraphs, we are of the opinion that the State of Gujarat has framed the reservation policy by Government Resolution dated 11.2.1986 and circulars dated 29.1.2000 and 23.7.2004 as well as in view of the statutory provisions i.e. Recruitment Rules of 1967, Rules of 2007, 2008 Page 45 of 47 HC-NIC Page 45 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT and 2009, we hold that all those candidates belonging to a reserved category, if they avail the benefit of age relaxation, the same is to be considered as relaxation in the standard and therefore such candidates who got the benefit of age relaxation are not entitled to be considered in general category and their cases are required to be considered for reserved category cases only. Thus, the decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) would not be applicable to the facts of the present case and the relaxation of age in view of the policy of the State Government can be said to be relaxation in standard and the same cannot be considered to be concession. We answer the question posed for consideration accordingly.
35. In view of the aforesaid discussion, the present appeals are allowed. The impugned order dated 11.6.2015 rendered by the learned Single Judge in Special Civil Application No.1100 of 2015 and 1141 of 2015 is set aside. However, it is clarified that the other part of the order dated 11.6.2015 passed by the learned Single Judge in other group of petitions is not considered at this stage and the same will be considered at the time of hearing of the other appeals which are segregated.
Page 46 of 47HC-NIC Page 46 of 47 Created On Thu Mar 16 02:42:15 IST 2017 C/LPA/1103/2015 CAV JUDGMENT (R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Srilatha Page 47 of 47 HC-NIC Page 47 of 47 Created On Thu Mar 16 02:42:15 IST 2017