Rajasthan High Court - Jodhpur
Jasveer vs The State Of Rajasthan ... on 6 December, 2024
[2024:RJ-JD:49926]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 19403/2024
Jasveer S/o Jagdish, aged about 40 Years, Baba Ramdev Nagar,
Fruit Mandi Ke Samne, Bhadwasia, Jodhpur Rajasthan.
----Petitioner
Versus
1. The State of Rajasthan, through The Principal Secretary,
Department of Local Self Government, Government of
Rajasthan, Secretariat, Jaipur.
2. Municipal Corporation Jodhpur, through its Commissioner
at Jodhpur.
3. Commissioner, Municipal Corporation, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Punaram Sen
For Respondent(s) : --
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
06/12/2024
1. The petitioner applied for the post of 'Safai Karmchari' in
pursuance of the notification/advertisement dated 13.04.2018
under the general category. His grievance is that the candidates
belonging to the reserved category were recruited under the
general category therefore, the petitioner had been deprived from
the consideration under the general category.
2. Learned counsel representing the petitioner submits that
similar kind of writ appeals were filed before the Division Bench of
this Court and the Court in D.B. Spl. Appeal Writ
No.1733/2018 (Virendra Kumar & Ors Vs. State of
Rajasthan & Anr) and batch of appeals pronounced the
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judgment on 09.08.2019 while disposing the appeals. The relevant
portion of the said judgment reads as follows: -
"24. The next important question is whether names of
candidates of any reserved category, who availed a
chance in the draw of lots for that category, can
nevertheless be included in the draw of lots or lottery
held for general category candidates. The appellants had
sought to urge that granting such opportunity would be
an additional one, because those (applicants) who do not
belong to any reserved category are given only one
chance.
25. It was argued on behalf of some of the
unsuccessful candidates that permitting "migration" to
reserved category candidates and including the names of
those, who had availed age relaxation, is contrary to law
and Article 14. Here, it was submitted that such
candidates got the benefit of a concession, which
enabled them to participate in the draw of lots vacancies
earmarked for such reserved categories. Having availed
of that chance, they could not- on the strength of such
age relaxation- be permitted to participate in the draw of
lots held for general category candidates. This Court
finds merit in the submission. This issue had arisen
earlier as well. In Gaurav Pradhan and Ors. vs. State of
Rajasthan & Ors. (2018) 11 SCC 352 the Supreme Court
held as follows:
"46. As noticed above Rule 7(1) of 1989 Rules
expressly provides that "reservation of vacancies
for the Scheduled Castes and the Scheduled
Tribes shall be in accordance with the orders of
the Government for such reservation in force at
the time of recruitment i.e. by direct recruitment
and by promotion". The circular of the
Government shall be treated to be in force for
the purpose of reservation which is in force at
the time of recruitment. Recruitment
commenced by the advertisement dated
7.10.2010 and 25.10.2010 at that time only
circular dated 24.06.2008 was in force, hence,
subsequent circular dated 11.05.2011 cannot be
applied in the present recruitment. There cannot
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be any dispute that the policy of reservation can
always be changed by the State Government
and the State Government can change the
manner and methodology of implementing the
reservation and criteria of reservation of the
reserved category candidates and general
category candidates. It is also relevant to note
that both learned Single Judge and Division
Bench have not approved circular dated
11.05.2011 in toto. Both the Courts have held
that apart from age relaxation, if the candidate
has taken any other relaxation circular dated
11.05.2011 cannot help him in migrating into
general category candidate.
47. We are thus of the opinion that Division
Bench erred in modifying the judgment of the
learned Single Judge and holding that
candidates availing relaxation of age belonging
to reserved category-candidates who find place
in merit list of the general/open category has to
be treated to be included in the general/open
category. The above conclusion of the Division
Bench is unsustainable for the reason as
indicated above.
48. In view of the foregoing discussion, we are
of the considered opinion that the candidates
belonging to SC/ST/BC who had taken relaxation
of age were not entitled to be migrated to the
unreserved vacancies, the State of Rajasthan
has migrated such candidates who have taken
concession of age against the unreserved
vacancies which resulted displacement of a large
number of candidates who were entitled to be
selected against the unreserved category
vacancies. The candidates belonging to
unreserved category who could not be appointed
due to migration of candidates belonging to SC/
ST/BC were clearly entitled for appointment
which was denied to them on the basis of the
above illegal interpretation put by the State. We,
however, also take notice of the fact that the
reserved category candidates who had taken
benefit of age relaxation and were migrated on
the unreserved category candidates and are
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working for more than last five years. The
reserved category candidates who were
appointed on migration against unreserved
vacancies are not at fault in any manner. Hence,
we are of the opinion that SC/ST/BC candidates
who have been so migrated in reserved
vacancies and appointed should not be displaced
and allowed to continue in respective posts. On
the other hand, the unreserved candidates who
could not be appointed due to the above illegal
migration are also entitled for appointment as
per their merit. The equities have to be adjusted
by this Court.
49. On the question of existence of vacancies,
although learned Counsel for the Appellant
submitted that vacancies are still lying there,
which submission however has been refuted by
the learned Counsel for the State of Rajasthan.
However, neither Appellants had produced any
details of number of vacancies nor the State has
been able to inform the Court about the correct
position of the vacancies. We thus for adjusting
the equity between the parties issue following
directions:
(1) The writ Petitioners/Appellants who as per
their merit were entitled to be appointed against
unreserved vacancies which vacancies were filled
up by migration of SC/ST/BC candidates who
had taken relaxation of age should be given
appointment on the posts. The State is directed
to work out and issue appropriate orders for
appointment of such candidates who were as per
their merit belonging to general category
candidates entitled for appointment which
exercise shall be completed within three months
from the date copy of this order is produced.
(2) The State shall make appointments against
the existing vacancies, if available, and in the
event there are no vacancies available for the
above candidates, the supernumerary posts may
be created for adjustment of the Appellants
which supernumerary posts may be terminated
as and when vacancies come into existence."
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26. Recently, in Nirav kumar Dilipbhai Makwana vs.
Gujarat Public Service Commission & Ors 2019 (9)
SCALE (decided on 4July 2017) the Supreme Court again
re-iterated the position as follows:
"16. 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 SC and ST categories
who are selected for 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, shall be considered for
appointment on unreserved posts, which are
filled in on merit along with other general
category members. As per the said Government
Resolution dated 11.12.1986, such
appointments on merit 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 o17 (rders issued from time to
time. The State Government vide Circular No.
PVS-1099-MVN-13-G-4 dated 29.01.2000
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, the said candidate
will be adjusted in the open category and in case
the candidate has availed any of the aforesaid
relaxation, he/she will have to be adjusted
against the reserved seats. This circular reads as
under:
...After careful and mature consideration in this
regard, it is clarified that only those Scheduled
Castes, Scheduled Tribes and Socially and
Educationally Backward Classes candidates who
are selected on the same standards as applied
to the general category candidates, shall be
counted/adjusted against unreserved posts and
not against the reserved posts. When relaxed
standard have been applied in selection of
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candidates belonging to Scheduled Castes,
Scheduled Tribes and Socially and educationally
Backward Classes in terms of the age limit,
experience, qualification, permitted number of
chances in written examination, extended zone
of consideration larger than what is provided for
general category, etc., then the Scheduled
Castes, Scheduled Tribes and Socially and
Educationally Backward Classes candidates
selected under such arrangement shall be
counted against the reserved posts. Such
candidates would be deemed as unavailable for
consideration against unreserved posts.
17. The State Government came out with a
further clarification vide Circular No. PVS-
102003-900-G-4 dated23.07.2004. In this
circular, it was clarified as under:
...After careful consideration of Government in
this regard, it is clarified that candidates
belonging to Scheduled Caste/Scheduled
Tribe/Socially and Educationally backward
classes, who got selected on merit through
competitive examination without availing any
relaxation in prescribed standards for eligibility
shall not be adjusted against the reserved posts
but candidate belonging to the Scheduled Case/
Scheduled Tribe/Socially and Educationally
backward classes who got selected by availing
relaxation in qualifying marks in competitive
written examination and personal interview shall
be counted against the reserved posts. However,
reserved class candidates who have been
granted exemption from paying examination fee
shall not be barred from competing for an
unreserved vacant post.
18. Thus, the appointments in the category of
SC/ST and other backward classes to the post of
class I and class III in the State Services are
being governed by the aforesaid policies and the
State Government and/or any Authorities
effecting direct appointments are required to
give effect to the aforesaid policy decision at the
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time of recruitment process viz. preparing the
select list etc.
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.
20. The State of Gujarat framed the Rules for
regulating the recruitment to the post of ACF in
Gujarat Forest Services Class II recruitment
Rules 2007.
(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.
21. Similarly, the State of Gujarat has made the
following Rules for regulating recruitment to the
post of RFO 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.
22. The State Government vide Notification
dated 18.09.2008 framed the Examination Rules
of 2008.
23. In the advertisement published by the GPSC
inviting applications from the eligible candidates
for the post of ACF (Class II) and RFO (Class II)
dated 01.03.2010, upper age limit relaxation
was granted to the candidates belonging to
SC/ST and SEBC category. It was also
specifically stated in the advertisement that if
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any candidate belonging 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.
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
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from the orders issued by the Government from
time to time.
25. In the instant case, State Government has
framed policy for the grant of reservation in
favour of SC/ST and OBC by the Circulars dated
21.01.2000 and 23.07.2004. The State
Government has clarified that when a relaxed
standard is applied in selecting a candidate for
SC/ST, SEBC category in the age limit,
experience, qualification, permitting number of
chances in the written examination etc., then
candidate of such category selected in the said
manner, shall have to be considered only against
his/her reserved post. Such a candidate would
be deemed as unavailable for consideration
against unreserved post.
26. Now, let us consider the judgment in
Jitendra Kumar Singh (supra). In this case, this
Court was considering the interpretation of Sub-
section (6) of Section 3 of U.P. Public Services
(Reservation for Scheduled Castes, Scheduled
Tribes and Other Backward Classes) Act, 1994
(for short"1994 Act") and the Government
Instructions dated 25.03.1994. Subsection (6) of
Section 3 of this Act provided for reservation in
favour of Scheduled Castes, Scheduled Tribes
and other Backward Classes which is as under:
(6) If a person belonging to any categories
mentioned in Sub-section (1) gets selected on
the basis of merit in an open competition with
general candidates, he shall not be adjusted
against the vacancies reserved for such category
under Sub-section (1).
27. The State of U.P. issued Instructions dated
25.03.1994on the subject of reservation for
Scheduled Castes, Scheduled Tribes and Other
Backward Groups in the Uttar Pradesh Public
Services. Last line of these instructions is as
under:
It shall be immaterial that he has availed any
facility or relaxation (like relaxation in age-limit)
available to reserved category.
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28. On consideration of Sub-section (3) of
Section 6 of the1994 Act and the Instructions
dated 25.03.1994, this Court held that grant of
age relaxation to a reserved category candidate
does not militate against him as general
category candidate if he has obtained more
marks than any general category candidates.
This judgment was based on the statutory
interpretation of 1994 Act and the Instructions
dated 25.03.1994 which is entirely different
from the statutory scheme under consideration
in the instant appeal. Hence, the principle laid
down in Jitendra Kumar Singh(supra) has no
application to the facts of the present case.
29. In Deepa (supra), the Appellant had applied
for the post of Laboratory Assistant Grade II in
Export Inspection Council of India functioning
under the Ministry of Commerce and Industry,
Government of India under OBC category by
availing age relaxation. The Department of
Personnel and Training had issued proceedings
O.M. dated 22.05.1989 laying down the
stipulation to be followed by various
Ministries/Departments for recruitment to
various posts under the Central Government and
the reservation for Scheduled Castes, Scheduled
Tribes and Other Backward Classes candidates.
Paragraph 3 of the said O.M. is asunder:
3. In this connection, it is clarified that only such
SC/ST/OBC candidates who are selected on the
same standards as applied to general candidates
shall not be adjusted against reserved
vacancies.
30. The judgment in Jitendra Kumar Singh
(supra), was pressed into service in support of
the contention that when a relaxed standard is
applied in selecting Scheduled Castes, Scheduled
Tribes and Other Backward Classes candidates,
the same cannot be treated as a bar on such
candidates for being considered for general
category vacancies. This Court did not agree
with the said proposition. It was held that
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Jitendra Kumar Singh (supra) was based on the
statutory interpretation of the U.P. Act, 1994,
and the GO dated25.03.1994 which provides for
an entirely different scheme. Therefore, the
principles laid down in Jitendra Kumar
Singh(supra) cannot be applied to the said case.
31. Similar question arose in Gaurav Pradhan
(supra). In this case the Government had issued
Circular dated24.06.2008 which is as under:
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.)
payment of examination fee in case of direct
recruitment.
32. Taking into consideration the above circular,
this Court held that the ratio of the judgment in
Jitendra Kumar Singh(supra) has to be read in
the context of statutory provisions and the GO
dated 25.03.1994 and the said observation
cannot be applied in a case where the
Government Orders are to the converse effect. It
was held as under:
32. We are of the view that the judgment of this
Court in Jitendra Kumar Singh which was based
on statutory scheme and the Circular dated 25-
3-1994 has to be confined to scheme which was
under consideration, statutory scheme and
intention of the State Government as indicated
from the said scheme cannot be extended to a
State where the State circulars are to the
contrary especially when there is no challenge
before us to the converse scheme as delineated
by the Circular dated 24-6-2008.
33. The judgments in Deepa (supra) and Gaurav
Pradhan (supra) fully support the case of the
Respondents.
34. The judgment in Ajith kumar (supra) relied
on by the learned senior Counsel for the
Appellant has no application to the facts of the
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instant appeal. In that case, this Court was not
examining the effect of a statutory
provision/circular granting age relaxation to the
candidates belonging to the reserved category.
35. Similarly, in Vikas Sankhala (supra),
relaxation of marks of TET was allowed to
different categories (under the orders of the
State Government dated 23.03.2011). After
such relaxation, the reserved category
candidates were selected as having obtained
more marks than the last general candidate and
were included as general category candidates.
The general category candidates contended that
since relaxation was obtained prior to the
circular dated11.05.2011, reserved category
candidates were not eligible to be included as
general category candidates. This Court, after
noticing the circulars issued from time to time,
held that relaxation given in the marks in the
TET examination was not part of the recruitment
process. This judgment also does not assist the
Appellant in any manner.
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
dated29.01.2000 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."
27. This issue had been earlier dealt with by another
decision of the Supreme Court in Vikas Sankhala & Ors.
vs. Vikas Kumar Agarwal and Ors 2017 (1) SCC 750. The
court had then observed as follows:
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"59. The learned Counsel for the general
category candidates, on the other hand,
maintained that TET was apart of recruitment
process and relaxation in passing marks in that
examination amounted to giving concession to
reserved category candidates and after availing
such concession they were not entitled to
migrate to general category. It was also
submitted that insofar as decision of the State
contained in letter dated May 11, 2011 is
concerned, it was rightly held by the High Court
that norms could not be changed after the
selection process has started.
60. Having regard to the respective submissions
noted above, first aspect that needs
consideration is as to whether relaxation in TET
pass marks would amount to concession in the
recruitment process. The High Court has held to
be soon the premise that para 9(a) dealing with
such relaxation in TET marks forms part of the
document which relates to the recruitment
procedure. It is difficult to accept this rationale
or analogy. Passing of TET examination is a
condition of eligibility for appointment as a
teacher. It is a necessary qualification without
which a candidate is not eligible to be considered
for appointment. This was clearly mentioned in
guidelines/notification dated February 11,2011.
These guidelines pertain to conducting of TET.
Basic features whereof have already been
pointed out above. Even para 9 which provides
for concessions that can be given to certain
reserved categories deals with 'qualifying marks'
that is to be obtained in TET examination. Thus,
a person who passes TET examination becomes
eligible to participate in the selection process as
and when such selection process for filling up of
the posts of primary teachers is to be
undertaken by the State. On the other hand,
when it comes to recruitment of teachers, the
method for appointment of teachers is
altogether different. Here, merit list of successful
candidates is to be prepared on the basis of
marks obtained under different heads. One of
the heads is marks in TET. So far as this head is
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concerned, 20% of the marks obtained in TET
are to be assigned to each candidate. Therefore,
those reserved category candidates who secured
lesser marks in TET would naturally get less
marks under this head. We like to demonstrate it
with an example. Suppose a reserved category
candidate obtains 53 marks in TET, he is treated
as having qualified TET. However, when he is
considered for selection to the post of primary
teacher, in respect of allocation of marks he will
get 20% marks for TET. As against him, a
general candidate who secures 70 marks in TET
shall be awarded 14marks in recruitment
process. Thus, on the basis of TET marks
reserved category candidate has not got any
advantage while considering his candidature for
the post. On the contrary, "level playing field" is
maintained whereby a person securing higher
marks in TET, whether belonging to general
category or reserved category, is allocated
higher marks in respect of 20% of TET marks.
Thus, in recruitment process no weightage or
concession is given and allocation of 20% of TET
marks is applied a cross the board. Therefore,
the High Court is not correct in observing that
concession was given in the recruitment process
on the basis of relaxation in TET.
61. Once this vital differentiation is understood,
it would lead to the conclusion that no
concession becomes available to the reserved
category candidate by giving relaxation in pass
marks in TET insofar as recruitment process is
concerned. It only enables them to compete with
others by allowing them to participate in the
selection process. In this backdrop, irrespective
of circular dated May 11, 2011, the reserved
category candidates who secured more marks
than marks obtained by the last candidate
selected in general category, would be entitled
to be considered against unreserved category
vacancies. However, it would be subject to the
condition that these candidates have not availed
any other concession in terms of number of
attempts, etc., except on fee and age.
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62. In Jitendra Kumar Singh and Anr. v. State of
Uttar Pradesh and Ors. MANU/SC/0032/2010 :
(2010) 3 SCC 119, this Court has very
categorically held that relaxations given in
educational qualifications etc. making a person
eligible to participate in selection process would
not be treated as availing benefits in the
recruitment/employment and the benefits
envisaged have to be those which have direct
relation to recruitment/employment and are
relatable to the jovial relationship of employer
and employee. It is also clarified that such
benefits must occur from and should be post
'level playing field'. We would like to reproduce
the following discussion from the said judgment
touching upon the aforesaid aspects:
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
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compete and seek benefit of reservation, is
merely an aid to reservation. 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 the reserved category candidates.
xx xx xx
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 fulfill 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.
It is stated at the cost of repetition that
provision of giving 20% marks of TET score was
applied to all candidates irrespective of the
category to which he/she belongs and,
therefore, no concession or relaxation or
advantage or benefit was given in this behalf
which could disturb the level playing field and tilt
advantage in respect of reserved category
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candidate. On the contrary, the reserved
category candidates who had secured less marks
in TET examination are given lesser marks in the
recruitment process on the application of the
formula of allocating 20% marks of TET score.
Question No. 3 is answered accordingly.
63. These appeals are accordingly allowed in the
manner indicated in this judgment, effect
whereof would be asunder:
(a) Those reserved category candidates who
secured pass marks on the application of relaxed
standards as contained in the extant policy of
the Government in its communication dated
March 23, 2011 to be treated as having qualified
TET examination and, thus, eligible to participate
in the selection undertaken by the State
Government.
(b) 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."
28. Thus, Gaurav Pradhan, Vikas Sankhala
(supra) and Dilipbhai (supra) have all dealt with
the issue of whether reserved category
candidates who avail some concession (for
belonging to such reserved categories) should
be granted the benefit of "migration" to the
general category vacancies. It could be argued
that each depended on the circulars issued by
the concerned governments, (i.e. States of
Gujarat and Rajasthan),and the court went by
the interpretation of the instructions
andcontents of those circulars. Yet, in both
Gaurav Pradhan and Vikas Sankhla, (both of
which dealt with recruitments relatable to the
State of Rajasthan), the view expressed was
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that if a reserved(ST/SC or OBC) category
candidate availed of age relaxation, she or he
could not be "migrated" to the general category,
in the event of better performance on merit.
This was underlined in Gaurav Pradhan:
"we are of the considered opinion that the
candidates belonging to SC/ST/BC who had
taken relaxation of age were not entitled to
be migrated to the unreserved vacancies,
the State of Rajasthan has migrated such
candidates who have taken concession of
age against the unreserved vacancies which
resulted displacement of a large number of
candidates who were entitled to be selected
against the unreserved category vacancies.
The candidates belonging to unreserved
category who could not be appointed due to
migration of candidates belonging to SC/ST/
BC were clearly entitled for appointment
which was denied to them on the basis of
the above illegal interpretation put by the
State. We, however, also take notice of the
fact that the reserved category candidates
who had taken benefit of age relaxation and
were migrated on the unreserved category
candidates and are working for more than
last five years. The reserved category
candidates who were appointed on
migration against unreserved vacancies are
not at fault in any manner. Hence, we are of
the opinion that SC/ST/BC candidates who
have been so migrated in reserved
vacancies and appointed should not be
displaced and allowed to continue in
respective posts. On the other hand, the
unreserved candidates who could not be
appointed due to the above illegal migration
are also entitled for appointment as per
their merit. The equities have to be
adjusted by this Court."
29. The learned Single Judge was of the opinion that
since there was no skill involved on the part of the
candidates, in the present case, as the recruitment was
lottery based, the above rule (i.e against migration)
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cannot apply. This court is of the opinion that the view is
erroneous. In the first place a reserved category
candidate's name is included - in the schedule and
method of recruitment, early. It is after exhausting
chances as a reserved category candidate (and further
sub reservations included therein for persons with
disabilities, for women, etc) that the draw of lots for
residual vacancies is held. Such being the case, in the
absence of a procedure involving testing an individual's
skill, or proficiency, where the draw of lots solely
determines the recruitment, granting of multiple chances
to one who would be otherwise ineligible to participate in
the process as against the open category vacancies,
would be in violation of Article 14. It is therefore, held
that selection of the reserved category candidates who
availed of age relaxation concessions based on the draw
of lots as against open category vacancies is contrary to
law.
30. Some of the appellants had argued that since the
entire recruitment is based on draw of lots and does not
involve any element of skill, reserved category
candidates' names should not have been included in the
draw of lots held for open category candidates, as they
could not be considered against such open quota. This
court is of the opinion that the open category vacancies
are not part of any quota. Although the rule of"migration"
was articulated in the context of reserved category
candidates performing and securing results comparable
to or better than candidates of the unreserved category,
nonetheless, the fact remains that both "categories" are
candidates. That the reserved category belong to classes
who are inadequately represented, places them in a
different position, in that they are to the extent of
reservation and their merit, assured of a better chance of
appointment. Nonetheless, they as well as the
unreserved category candidates fulfil the description of
eligible individuals, entitled to equal treatment. This
equal treatment, without the benefit of reservation, is
afforded in competition or any other mode adopted for
the unreserved category vacancies. Therefore, reserved
category candidates' names cannot be excluded from the
draw of lots held for the residual, unreserved category of
candidates, as those vacancies are not part of any quota.
The appellants submissions, on this aspect are therefore,
rejected.
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............
35. In the light of the foregoing discussion, the appeals are partly allowed; all applications too are therefore, disposed of."
3. In light of the above, the instant Writ Petition is also disposed of in terms of the aforesaid judgment.
(MUNNURI LAXMAN),J 2-Dharmendra Rakhecha/-
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