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51. It is true that interpretation of statute would not depend on the understanding of the executive but the fact remains that on and after the enforcement of Act of 1994, in the State of U.P., Section 3(6) is being implemented by giving adjustment to reserve category candidates against unreserved seats provided they are selected in open competition with general category candidates without availing any concession or relaxation in the standard of selection which does not include relaxation in age or fee. The State therefore has not treated relaxation in age and fee as relaxation in the standard of selection and the crucial question up for consideration before us whether such relaxation can deprive a reserve category candidate denuding his status as a candidate competing in open competition with general category candidate when all other things are equal except the fact that such candidate has availed concession in fee and/or age limit. Having given our very serious, in-depth thoughts to the question, we are of the view that relaxation in age and fee can not be treated to be a relaxation in standard of selection and shall not deny a reserve category candidates selection in open competition with general category candidates. As we have observed, the term "reservation" comprises various kinds of concession, relaxation etc. but Section 8(1) of Act of 1994 is confined to only two kinds of relaxation/concession namely "concession in fee" and "relaxation in upper age limit". Sub-Section 2 of Section 8 however provides that if any Government order is in force on the date of commencement of the Act, providing any concession, relaxation including concession in fee for any competitive examination, interview and relaxation in upper age limit relating to reservation in direct recruitment or promotion which are not inconsistent with the provisions of the Act, shall continue to be applicable till they are modified or revoked as the case may be. We are informed that presently and for selection in dispute, only concession in fee and relaxation in upper age limit and no other concession or relaxation is available to the reserve category candidates specified under Section 3(1) of the Act of 1994.

52. ...In other words we can say that concession in fee or relaxation in upper age limit are the provision not concerned with the process of selection i.e. open competition itself but are the provisions pertaining to eligibility i.e. to bring in a candidate in the zone of consideration. Once a person is included in the zone of consideration, he is entitled to participate in the open competition irrespective of difference in the eligibility qualification. Further, if on account of his identity belonging to particular category, any procedural difference is observed in the selection itself, in that case only, such an adjustment under Section 3(6) of Act of 1994 would not be applicable and not otherwise. To elaborate our view, in the case in hand, the identity of individual candidate whether general, scheduled caste, scheduled tribe or O.B.C. has no relevance in the entire process of selection and it is only when the final select list is prepared, selection qua respective category of vacancies would be made. For example in the present case, all the candidates, securing 50% marks and more in the preliminary qualifying written test participated in the physical test irrespective of the number of candidates qualifying against individual category. The standard of selection is common to all. Similarly in the physical test also all the candidates irrespective of their category, securing at least 50% marks qualify and appear in the main written test. Again all the candidates who secured 40% and above in main written test were declared successful in written test and thereafter, all of them appeared in interview. It is only after interview, a final merit list on the basis of marks secured in main written test and interview is prepared and thereafter the final select list is prepared applying reservation. At any stage prior thereto, the candidate's identity had no relation or relevance in the process of selection whatsoever. Thus, in our view, ex-facie and undoubtedly, at the time of final select list, Section 3 (6) of Act of 1994 would be applicable and if a reserve category candidate has secured marks more than a last general category candidate, he is entitled to be selected against unreserved seat without being adjusted against a reserved seat.

The phrase "open competition with general candidates' bears significance, as unless there is competition amongst the general candidates and reserved category candidates at the same level, the benefit of the said phrase may not be available to the reserved category candidate. In case a separate list is prepared according to the merit of the reserved category candidates in written examination and likewise separate interviews are held of the reserved category candidates excluding the general category candidates. The State Government has also not disclosed the criteria or the minimum marks which have been kept as qualifying marks for the reserved category candidates in the written examination and for general category candidates respectively. Likewise, the criteria for interview and the minimum marks prescribed in the interview for reserved category candidates and minimum marks fixed for the general category candidates has also not been disclosed.

In a selection which can be termed as open competition with general category candidates, the candidature of the reserved category candidates as well as the general category candidates is to be tested on the same merit and if in that case a reserved category candidate succeeds in the open competition with general category candidates, he would be placed amongst the general category candidates. In the instant case, the result so declared in the written examination does indicate that a separate criteria appears to have been adopted for examining the copies with respect to reserved category candidates and general category candidates. Therefore, a separate merit list have been made and the result of the written examination have been declared categorywise. Subsequently separate interview were also held and the result has also been declared separately categorywise. The selection thus so made cannot be said to be a selection as a result of open competition with the general category candidates.