RAJASTHAN HIGH COURT JUDGEMENT REGARDING MARKS/ RESERVATION POLICY
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
ORDER
1. SB Civil Writ Petition No. 15152/2011
Madan Lal versus State of Rajasthan & ors
2. SB Civil Writ Petition No.14280/2011
Hansh Raj Sharma & anr versus State of Rajasthan & ors
3. SB Civil Writ Petition No.9507/2011
Mahesh Kumar Gurjar versus State of Rajasthan & ors
4. SB Civil Writ Petition No.9011/2011
Ashok Kumar Gurjar & ors versus State of Rajasthan & ors
5. SB Civil Writ Petition No.164/2012
Manju Bai & anr versus State of Rajasthan & ors
6. SB Civil Writ Petition No.264/2012
Vipin Kumar Sharma versus State of Rajasthan & ors
7. SB Civil Writ Petition No.14933/2011
Gajendra Singh versus State of Rajasthan & ors
8. SB Civil Writ Petition No.13207/2011
Pramod Awasthi & anr versus State of Rajasthan & ors
9. SB Civil Writ Petition No.14153/2011
Virendra Singh versus State of Rajasthan & ors
10. SB Civil Writ Petition No.15370/2011
Navjeet Singh Rajawat versus State of Rajasthan & ors
11. SB Civil Writ Petition No.16432/2011
Veer Pal Singh versus State of Rajasthan & ors
12. SB Civil Writ Petition No.16410/2011
Deshraj Singh versus State of Rajasthan & ors
13. SB Civil Writ Petition No.15588/2011
Karan Kumar Sharma versus State of Rajasthan & ors
13. SB Civil Writ Petition No.10346/2011
Jitendra Singh Gurjar & ors versus State of Rajasthan & ors
14. SB Civil Writ Petition No.11660/2011
Narendra Singh & ors versus State of Rajasthan & ors
15. SB Civil Writ Petition No.11965/2011
Dhara Singh Gurjar versus State of Rajasthan & ors
16. SB Civil Writ Petition No.12401/2011
Pradeep Kumar versus State of Rajasthan & ors
17. SB Civil Writ Petition No.15689/2011
Umesh Kumar & anr versus State of Rajasthan & ors
18. SB Civil Writ Petition No.524/2012
Shrawan Singh versus State of Rajasthan & ors
19. SB Civil Writ Petition No.13526/2011
Mahendra Singh Gurjar versus State of Rajasthan & ors
20. SB Civil Writ Petition No.17960/2011
Narendra Singh Gurjar & anr versus State of Rajasthan & ors
21. SB Civil Writ Petition No.15218/2011
Tarun Sharma versus State of Rajasthan & ors
22. SB Civil Writ Petition No.14335/2011
Ajeet Singh Khola versus State of Rajasthan & ors
23. SB Civil Writ Petition No.14629/2011
Harvendra Singh versus State of Rajasthan & ors
24. SB Civil Writ Petition No.15654/2011
Gajendra Singh versus State of Rajasthan & ors
25. SB Civil Writ Petition No. 2922/2012
Suresh Kumar vs State of Rajasthan & ors
Date of Order :- 27th April, 2012
PRESENT
HON'BLE MR. JUSTICE MN BHANDARI
Mr Mahendra Shah
Mr Vigyan Shah
Mr NK Singhal
Mr Rajendra Soni
Mr Nawal Singh Sikarwar
Mr Ankur Srivastava
Mr Sanjay Kumar Sharma
Mrs Sangeeta Sharma
Mr SK Saini
Mr Raj Kumar Kasana
Mr Manoj Bhardwaj
Mr Jitendra Kumar Sharma
Mr Shailendra Balwada
Mr RK Gauttam
Mr Shobhit Vyas
Mr Ram Pratap Saini – for petitioners
Mr SN Kumawat, Additional Advocate General with
Mr BS Rajawat, Dy GC – for the respondents
BY THE COURT:
Since on same set of facts, similar relief has been claimed, all these writ petitions have been heard together and decided by this common order.
For convenience, the facts and documents from the case of “Madan Lal Versus State of Rajasthan & ors”, SB Civil Writ Petition No. 15152/2011 have been taken.
The matters pertain to selection to various posts advertised by the respondents vide advertisement dated 14.10.2010. All the candidates appeared in the written examination other than for the post of Constable (Band). The candidates were required to obtain minimum percentage of marks in the written examination to qualify for physical test. It was made clear that candidates fail to qualify in the physical test would not be called in further process. For few posts, efficiency/ trade test was provided. The select list was then to be prepared based on the marks in the written examination, physical test or trade/efficiency test. The minimum qualifying marks to be placed in the final select list were also provided for different categories.
The grievance of the petitioners is regarding migration of reserve caste category candidates to general/open category though they were selected with relaxed standards. According to the petitioners, a candidate of the reserve caste appeared and selected with relaxed standards is not eligible to migrate in the open/ general category if he has obtained more marks than marks of last candidate in open/ general category.
Learned counsel for petitioners submitted that advertisement provides not only concession and relaxation of fee and age in favour of reserve category candidates but further relaxation in standards of selection. Referring to the advertisement, it is submitted that as per clause 5(iii), reserve category candidates have been given relaxation in age by five years. Clause 5(iv) of the advertisement provides relaxation of height and chest upto 5 cm though a candidate should be selected for police services with required fitness and standard. Relaxation in height and chest by 5 cm is nothing but a benefit of relaxed standards for reserve caste during the process of selection.
Similar relaxation has been given even for minimum passing marks in the written examination. Referring to clause 6(i), a candidate of general and OBC category is required to obtain minimum 40 marks, whereas, for SC/ST candidate, it is only 36% marks and for those reserve caste belonging to tribal areas of few districts , requirement was only of 30% marks.
In the similar manner, as per clause 6(iv) relaxation in standards at final stage is provided for reserve category candidates. For general category, minimum passing marks are 45%, for SC/ST, OBC, SBC and female, it is 40% and for Saharia Adim caste/ tribal sub-plan region, it is 35%.
It is urged that so far as benefit of age and fee is concerned, it is not a concession in the standards of selection, whereas, all other benefits to the reserve category candidates are nothing but benefits of relaxed standards for selection. In the aforesaid background, those reserve category candidates who have taken benefit of relaxed standards for selection are not entitled to migrate from reserve category to general/ open category as per the circular of the Department of Personnel, Government of Rajasthan dated 17.6.1996.
Learned counsel for petitioners further made a reference of the circular issued by the DOP on 24.6.2008. Referring to clause 6.2 and 20 of the aforesaid circular, attention of the court was drawn to show that if a member of reserve category has taken relaxation in age etc. would not be considered for open category even if secured higher marks than the candidate last selected in general/open category. Clause 20 of the circular further reiterates aforesaid position. The clauses provide that a reserve category candidate can migrate to general/ open category provided he has not taken any concession other than fee.
A further reference of advertisement is given, which also provides similar conditions. The respondents issued an Standing Order bearing No.05/2010 to lay down the procedure for selection in question. Clause 12 of the said Standing Order also restrains migration of the reserve category candidates to open/ general category if one has availed relaxation as mentioned in the circular.
In the aforesaid background, migration of reserve category candidates was permissible to general/ open category candidates if they have not taken relaxation as indicated in the circular dated 17.6.1996 and dated 24.6.2008 apart from Standing Order No.05/2010 at Annexure-11.
The selection in reference was to be made as per the terms of Standing Order. The respondents, however, migrated reserve category candidates to open/ general category ignoring that many of them were selected with the benefit of relaxed standards. This seems to be in view of the circular dated 11.5.2011, wherein, migration of reserve category candidates taken benefit of special relaxation is allowed. A challenge to the circular dated 11.5.2011 has also been made being violative of Articles 16 and 335 of the Constitution of India. The aforesaid circular has been issued even in ignorance of the Constitutional Bench judgment of the Hon'ble Supreme Court in the case of “M Nagaraj versus Union of India”, reported in (2006) 8 SCC 212.
It is stated that the circular dated 11.5.2011 is not applicable to the present selection as the advertisement was issued and even selection was started much prior to the aforesaid circular. It is settled law that game of rules cannot be changed after initiation of process of selection or in midst. It is accordingly urged that the circular dated 11.5.2011 may not be applied to the selection pursuant to the advertisement dated 14.10.2010 and, otherwise, circular dated 11.5.2011 is not legally sustainable. To substantiate the arguments, learned counsel for petitioners made a reference of the judgment of the Hon'ble Supreme Court in case of “Post Graduate Institute of Medical Education & Research versus Faculty Association” reported in (1998) 4 SCC page 1 as also “Union of India & ors versus Dalbir Singh & anr” reported in (2009) 7 SCC 251.
The issue in reference to Article 335 of the Constitution was decided in the case of “Andhra Pradesh Public Service Commission versus Baloji Badhavath & ors”, reported in (2009) 5 SCC 1. Therein, the issue of admissibility of concession and relaxation in selection to the reserve category candidate has been dealt with.
Learned counsel for petitioners further explained judgment of the Apex Court in the case of “Jitendra Kumar Singh & anr versus State of Uttar Pradesh & ors”, reported in (2010) 3 SCC 119 and also in the case of “Union of India versus Ramesh Ram & ors”, reported in (2010) 7 SCC 234. A prayer is made to restrain migration of reserve category candidates to open category, who have taken benefit of relaxed standards for selection even if they have obtained higher marks than last candidate in general/open category. The migration may be permitted for those reserve category candidates who had not availed any concession for selection and yet obtained higher marks than the last candidate in the open/general category.
Learned counsel for respondents, on the other hand, submit that the issue involved in the present matter has already been settled by the Hon'ble Apex Court in the case of Jitendra Kumar Singh (supra). The migration of the reserve category candidates has been made permissible if they obtain more marks then the last candidate in open/ general category. It is irrespective of the relaxation or concession in age and fee. Particularly, reference of paras 48, 49 and 75 of the said judgment has been given to show that action of the respondents is in conformity to the judgment of the Apex Court.
Learned counsel for respondents further made reference of another judgment of this court in the case of “Mangla Ram Vishnoi versus State of Rajasthan & ors” reported in 2011 (1) WLC (Raj.) 148, wherein also, migration of reserve category candidate is held permissible even if they have taken benefit of relaxation in age and fee.
It is submitted that no relaxation was given to the reserve category candidates in merit which alone can be a bar to migrate in the general/ open category. The type of concession given to them was only of the nature to place them equal to the general/ open category.
The fact of issuance of Standing Order and circular earlier to the advertisement dated 14.10.2010 has not been disputed being a matter of fact. It has been admitted that respondents issued detailed Standing Order on 7.10.2010 i.e. just before the advertisement to govern terms of recruitment. The Standing Order was made effective to the recruitment for year 2009-10 onwards. Respondents were required to hold selection as per instructions given therein. The fact however remains that the DOP issued a circular on 11.5.2011 holding that a candidate of reserve category, taken special concession, can migrate in general/ open category if obtained more marks than the last candidate in the general/ open category. In the light of the subsequent circular, respondents allowed migration of reserve category candidates to the general list even if they had taken special concession in the selection. In the aforesaid background, there is no illegality in the action of the respondents to permit migration of the reserve category candidates based on their merit even if they had taken special concession. The Rules/ Instructions can be changed by the respondents in the midst of selection and even after its initiation. It is accordingly prayed that all the writ petitions may be dismissed with costs.
I have considered rival submissions of learned counsel for the parties and perused the record of the case besides the judgments cited at Bar.
It is a case where pursuant to the advertisement dated 14.10.2010, respondents held selection for various posts in police department. Selections were obviously to be made as per the Rules, terms of advertisement and Standing Orders issued by the department prior to the advertisement.
The grievance of the petitioners is in regard to migration of reserve category candidates to general/ open category thus foremost question for my consideration is as to whether in the facts and circumstances, migration of reserve category candidates to open category, who have availed various concessions and relaxation, is valid.
The other issue is regarding validity of the circular dated 11.5.2011 and its applicability to the selection pursuant to the advertisement dated 14.10.2010.
To determine the issues indicated in the preceding paras, reference of certain clauses of the advertisement would be relevant thus they are quoted herein for ready reference -
Para 5(iii) of the advertisement makes reference about age which is quoted hereunder:-
“5- ????? ???? ???????/???????/??? -
(i)....
(ii)....
(iii)??? ????:- ???????? ????? ??????? ???? ????, 1989 ?? ???? – 11 ??? ????? ????? ?? ???????? ?????? ??-7(2)?????/?-2/84-????? ?????? 25.6.2004 ?? ?????? ??? ?? ???? 1 ?????, 2011 ?? ???? ????? ??????????? ?? ??????:-
???? (category)
?????????? ???????/??????/????????/?????
?????????? ???????
????? ???? ?? ??? ?? ???? ???? ?? (??????? ??? ????)
????? ???? ?? ???? ?? ???? ???? ?? (?????? ??? ????)
????? ???? ?? ??? ?? ???? ???? ?? (??????? ??? ????)
????? ???? ?? ???? ?? ???? ???? ?? (?????? ??? ????)
?????/?????
?????
?????
?????/?????
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?????
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01/01/93
02/01/88
02/01/83
01/01/93
02/01/85
02/01/80
??.??./??.??/?.??.??./??.??.??. ????
01/01/93
02/01/83
02/01/78
01/01/93
02/01/80
02/01/75
??????? ??????? ??? ??? ?????????? ?? ?????? ??? ????? ????????
01/01/93
02/01/85
02/01/80
01/01/93
02/01/82
02/01/77
???????? ?????
01/01/93
02/01/71
02/01/71
01/01/93
02/01/71
02/01/71
Perusal of above quoted clause reveals five years age relaxation to reserve category candidates.
Clause 5(iv) and note appended thereto is also quoted herein -
“(iv) ??????? ??????? - ???????? ????? ??????? ???? ????, 1989 ?? ???? 14 ?? ?????? ??????????? ?? ?????, ???? ?? ??? ??? ??? ??????????? ???? ???????? ??:-
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??????? ???????
????? ??? ???????
?????
?????
?????
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??????? ?????
168 ??.??.
152 ??.??
160 ??.??.
152 ??.??.
???? (???? ??????? ?? ???)
???? ????? - 81 ??.??.
?????? ?? – 86 ??.??.
(???? ?? ????? ?? ?? ?? 5 ??.??.)
???? ????
???? ????? - 79 ??.??.
?????? ?? – 84 ??.??.
(???? ?? ????? ?? ?? ?? 5 ??.??.)
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???? ????
47.5 ??.????.
???? ????
47.5 ??.????.
??? - ??? ??????? ??????? ?? ???? ??????? ?????? ??????? ????????? ?? ?????? ???????? ????/???????? ?????? ?? ????? ???????? ???? ???? ??? ?? ?????? ????? ? ???? ??? 5 ??.??. ?? ??? ??? ?????"
Perusal of above quoted clause and note appended thereto shows relaxation in standards of height and chest to SC and ST candidates in a given situation.
Clause 6(i) of the advertisement is also quoted herein for ready reference -
“(i) fyf[kr ijh{kk
(i)??????????? ?? ????? ijh{kk ,d gh fnuakd dks lEcfU/kr ftyk@;wfuV@cVkfy;u }kjk fu/kkZfjr LFkku ij vk;ksftr dh tk,xhA ijh{kk dsUnz ds lEcU/k esa vkosnd dh dksbZ izkFkfedrk ugha gksxh rFkk u gh dksbZ vkifRr Lohdkj gksxhA fyf[kr ijh{kk dk iz'u ???? 75 vadksa dk gksxkA fyf[kr ijh{kk rhu Hkkxksa esa oLrqfu"B (Objective type) izdkj dh gksxhA fyf[kr ijh{kk dk Hkkx ^v* ^foospuk ,oa rkfdZd ;ksX;rk* ds iz'uksa ls lEcfU/kr 30 vad dk] Hkkx ^c* lkekU; Kku] lkekU; foKku] lkekftd foKku ,o a lelkef;d fo"k;k sa ij 15 vad dk rFkk Hkkx ^l* ^jktLFkku ds bfrgkl] laLd`fr] dyk] Hkwxksy bR;kfn fo"k;ksa ij vk/kkfjr 30 vad dk gksxkA bl ijh{kk esa lkekU;] o vU; fiNM+k oxZ ds vH;fFkZ;ksa ds fy, 40 izfr'kr] vuqlwfpr tkfr o vuqlwfpr tu tkfr oxZ ds vH;fFkZ;ksa ds fy, 36 izfr'kr rFkk ckjkW ftys dh 'kkgckn ,oa fd'kuxat rglhy ds fuoklh lgfj;k vkfne tkfr ,o a VkªbZcy lc&Iyku ??????? ds LFkkuh; vuqlwfpr tkfr@vuqlwfpr tutkfr vH;FkhZ;ksa ds fy, 30 izfr'kr vad] iz'u ???? ds izR;sd Hkkx esa vyx&vyx izkIr djuk vfuok;Z gksxkA Hkkx ^v* ds izR;sd iz'u dk lgh mRrj nsus ij 1 vad izkIr gksxk rFkk blds fdlh iz'u dk xyr mRrj nsus ij ¼ vad dkVk tk;sxkA Hkkx ^c* ,oa ^l* ds izR;sd iz'u ½ vad ds gksxsa . buds fdlh iz'u dk xyr mRrj nsus ij izkIr vadksa esa ls izR;sd xyr mRrj dk 1/3 vad dkVk tk,xkA
Perusal of the aforesaid clause shows relaxed standards for SC and ST candidates for passing written examination.
Clause 6(iv) of the advertisement is also quoted herein for ready reference -
“p;u lwph& vH;fFkZ;ksa }kjk lexz izdkj ¼fyf[kr ijh{kk] 'kkjhfjd n{krk ijh{kk] n{krk ijh{kk ,oa fo'ks"k ;ksX;rk½ ls vadksa dk ;ksx 45 izfr'kr lkekU; oxZ ds fy,, 40 izfr'kr vuq tkfr@vuq tutkfr] vU; fiNMk oxZ fo'ks"k fiNMk oxZ ,o a efgyk vH;fFkZ;ksa ds fy, rFkk 35 izfr'kr lgfj;k vkfne tkfr@VzkbZcy lc Iyku ??????? ds vuq tkfr@vuq tutkfr fuokfl;ksa ds fy, vftZr ugha djus ij mUgsa vuqrhZ.k ?kksf"kr fd;k tk,xkA mijksDr fu/kkZfjr vadksa ls vf/kd vad izkIr djus okys vH;fFkZ;ksa dh izkIrkadksa ds vk/kkj ij fu;ekuqlkj ojh;rk dze esa p;u lwph rS;kj dh tkosxhA lEHkkfor fjDr inksa ds fo:} p;u fd;s x;s vH;fFkZ;kas dks fjDr in miyC/k gksus ij gh fu;qfDr nh tk ldsxhA”
Perusal of the aforesaid shows again relaxed standards for reserve category candidates for passing selection.
Clause 6(ii) of the advertisement is also quoted for ready reference-
“ekirksy ,oe 'kkjhfjd n{krk ijh{kk&
lEcfU/kr ftyk@;wfuV@cVkfy;u dh fjfDr;ksa ds oxZokj ikap xq.kk mRrh.kZ vH;fFkZ;ksa dks 'kkjhfjd eki&rksy o 'kkjhfjd n{krk ijh{kk gsrq ???????? fd;k tk,xkA blds vfrfjDr vuq tkfr] vuq tutkfr ,oa vU; fiNMk ox]Z fo'ks"k fiNMk oxZ ds mu vH;kfFk;ksa dks ftUgksusa vk;q esa NwV izkIr ugha dh gS ,oa lkekU; oxZ ds dVvkWQ ds leku vFkok ???? vf/kd vad izkIr fd;s gSa dks Hkh ???????? fd;k tk;sxkA lkekU; oxZ esa lfEefyr fd;s x;s ,sls vH;FkhZ dsoy lkekU; oxZ dh fjfDr;ksa ds fo:} 'kkjhfjd n{krk ijh{kk esa lfEefyr gks ldsxsa.
HkrhZ cksMZ }kjk 'kkjhfjd eki&rksy esa ;ksX; ik, x;s vH;fFkZ;ksa dh fuEukuqlkj 'kkjhfjd n{krk ijh{kk vk;ksftr dh tkosxhA
VsLV ekin.M (vf/kdre)
* iq:"kksa ds fy, 10 fd-eh- nkSM+ 60 fefuV esa
* efgykvksa ds fy, 5 fd-eh- nkSM+ 35 fefuV esa
* HkwriwoZ lSfudksa@ 5 fd-eh- nkSM 30 fefuV esa
VªkbZcy lcIyku
??????? ds vuq-tkfr@
tutkfr@ lgfj;k vkfnoklh gsrq
'kkjhfjd n{krk ijh{kk esa vuqRrh.kZ vH;fFkZ;ksa dks vfxze izfdz;k esa 'kkfey ugha fd;k tkosxkA 'kkjhfjd n{krk ijh{kk esa izkIr vad vfUre p;u ds fy, lfEefyr fd;s ???????."
Clause 7(ii) of the advertisement is also relevant thus quoted hereunder -
“foKfIr esa fn;s x;s izk:Ik ds vuqlkj iw.kZ :i ls Hkjs x;s vkosnu&???? yhxy ¼8-5^^X14-0^^½ vkdkj ds dkxt ij bfPNr ftyk@;wfuV@cVkfy;u ds iqfyl v/kh{kd@ dek.MsUV ds dk;kZy; esa fnuakd 12-11-2010 dh lka;dky 5 ct s rd O;fDr'k% vFkok Mkd }kjk izkIr gks tkus pkfg,A foyEc ls izkIr vkosnu ???? fdlh Hkh fLFkfr esa Lohdkj ugha fd;s tk;s tk;sxsa. lkekU;@vkschlh@,lchlh oxZ ds vH;fFkZ;ksa ds fy, ijh{kk 'kqYd :0 200@& ,oa vuqlwfpr tkfr ,oa vuqlwfpr tu tkfr ds vH;fFkZ;ksa ds fy, dsoy :i;s 150@& fu/kkZfjr gS. ijh{kk 'kqYd dsoy Hkkjrh; iksLVy vkWMZj tks lEcfU/kr ftyk@;wfuV ds iqfyl v/kh{kd] dek.MsUV] vkj,lh cVkfy;u dks lEcksf/kr gks Lohdkj fd;k tk;sxkA uxn] cSad MzkQ~V] cSad pkyku] pSd vFkok vU; rjhds ls izsf"kr ijh{kk 'kqYd Lohdkj ugha fd;k tk;sxkA vkosnu ???? dk izk:i jktLFkku iqfyl foHkkx dh oSclkbZV www.rajpolice.nic.in ?? Hkh miYkC/k ??.”
Perusal of the clauses quoted above shows that so far as clause 5(iii) and 7(ii) of the advertisement are concerned, it gives relaxation in age and fee to the reserve category candidates, whereas clause 5(iv) and clause 6(i) and 6(iv) give benefit of relaxed standards for selection to the reserve category candidates.
The argument of learned counsel for petitioners is that all the concessions or relaxations are in the standards of selection to the reserve category candidates. If any candidate take benefit of relaxed standards for selection, he should not be allowed to migrate in general/ open category. To appreciate the aforesaid argument, reference of circular dated 17.6.1996 issued by the DOP is given, which is quoted hereunder for ready reference -
“GOVERNMETN OF RAJASTHAN
DEPARTMENT OF PERSONNEL
(A-GrII)
No.F.7(2)DOP/A-II/96 Jaipur, Dated: 17.6.1996
CIRCULAR – ORDER
Sub: Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in posts/ services under the Government.
According to the existing rule and circulars issued by the Government from time to time, reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes have been made to the extent of 16%, 12% and 21% respectively in the matter of direct recruitment. The matter under consideration of this department is as to whether:-
(1)the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes who get selected on general merit shall be counted against the reserve vacancies or general vacancies; and
(2)whether those who get in the merit list as a result of special concession given to them in terms of age and attempts should be considered against general vacancies or reserve vacancies.
In this connection it is clarified that according to order No.F.2(6) DOP/ A-II/88 dated 15th February, 1990 it was decided that where candidates belonging to Scheduled Castes and Scheduled Tribes qualify on merit against direct recruitment quota posts these posts should not be set off against posts in reserve quota or in other words, the reserve quota should be filled in exclusively from amongst the candidates who qualify under the terms and conditions applicable to the reserve quota. Again vide notification No. 9(8) DOP/A-V/90 dated 28th September, 1993 it was clarified that the candidates belonging to Other Backward Classes recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 21%.
The matter has again been examined in consultation with Law Deptt. and the Law Deptt. have advised that the quota of post for which citizen is eligible to compete in entirely different to reserve quota and for recruitment to the post falling in open competition quota, the condition of eligibility can be different to the conditions of eligibility for recruitment to the post of reserve quota. Therefore, the candidates belonging to SC/ST and OBC who get selected fulfilling the conditions of eligibility regarding age limit and attempts prescribed for general candidates can be placed on general merit lit and those who get placement in the merit list as a result of special concession given to them in terms of age and attempts should not be considered as the general candidates but should be considered against reserve vacancies.
All the Appointing Authorities and Competent Authorities who are authorised to make selections are advised to follow the above principle in making selection against direct recruitment quota posts.
Sd/-
(Suraj Mal Kerwal)
Deputy Secretary to the Goernment.”
Perusal of the circular reveals that migration of reserve category candidates is not made permissible if they take special concession in terms of age and attempts. The State Government, thereafter, issued another circular dated 24.6.2008. Relevant parts 6.2 and 20(1) of the said circular are also quoted herein for ready reference -
“6.2 In the state, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc) available to them other than that relating to payment of examination fee in case of direct recruitment. On the other hand, women, persons with disabilities, sportspersons, in-servicemen or non-gazetted employees and ex servicemen are counted against their respective category, even if they are suitable for selection against non-reserved or open competition vacancy/post. But it may be noted that if any remaining candidate of these categories after providing the vacancies/posts reserved for them are more meritorious than the last person of the open competition category, such candidate will be selected even if it leads to selection of more candidates than that provided by virtue of reservation. This is to say that there is no reservation in favour of the non reserved categories like the males or the non sports persons. To take an example, assume that 1000 candidates are to be selected. Also assume that there is reservation for SC/ST/OBC categories and women as follows:-
Table I
SC ST OBC OC Total
Fem Total Fem Total Fem Total Fem Total Fem Total
48 160 36 120 63 210 153 510 300 1000
“20. Preparation of merit list in direct recruitment
20.1 We now come to the question of how to select candidates so that all the categories get the number of posts reserved for them. Separate lists of candidates in the order of their merit should be made for each category for which there is reservation – SC, ST, OBC, OC women, SC women, ST women, OBC women, women, PD, ES, NG and SP - as well a common list. In the first round, first of all, the OC category candidates should be selected from the common list. As many OC category candidates as are the number of vacancies in the OC category should be selected. Any member of the SC/ST/OBC category, appearing in this list should be counted towards OC category unless he has taken some concession admissible to these categories other than concession in fees. Thereafter, list of SC, ST and OBC candidates should be prepared from the remaining candidates in the lists of SC, ST and OBC categories respectively.”
Perusal of clause 6.2 reveals that reserve category candidate can compete against non-reserve vacancies if he has not taken concession like age etc other than concession in examination fee. The position aforesaid has been reiterated in clause 20 to confirm the position as given in clause 6.2.
In view of arrangement made in the circular, question raised in these petitions can be answered, however, petitioners have further made reference of Standing Orders under which recruitment has taken place. The Standing Order bearing No.05/2010 was issued by the respondents on 7.10.2010 and is annexed as Annexure-11. Clause 12 of the said Standing Order provides that after written examination, reserve category candidate can migrate to open category, if obtained higher or equivalent marks to cut off marks for open category. Relevant paras of the Standing Order dated 7.10.2010 are also quoted hereunder -
“In suppression of Standing Order No.01/2008, amendments thereto and all related orders, the following instructions are issued to regulate recruitment of Constable, Constable (Operator), Constable (Driver), Constable (Band) and Constable (Mounted) in Sections- I, II, III and IV of Rule 4 of RPSS Rules, 1989. These instructions shall be effective for recruitment for the year 2009-2010 onwards.
“12.Procedure for selection:-
Candidates applying for selection shall be required to go through the following selection process:-
PART – I
WRITTEN TEST INCLUDING REASONING TEST:- 75 Marks
The written test for the recruitment of all categories of constables shall be for a total of 75 marks. An objective type written test will be held simultaneously throughout the State under the directions of Director General-cum-Inspector of Police. It shall consist of three parts. Part A will have questions on reasoning and logic. Part B will include questions on general knowledge, general science and current affairs. Part C will have questions specifically on History, Geography, Culture and Arts of Rajasthan. There will be provision for negative marking for incorrect answers in written examination. Candidates shall be required to writ their roll numbers and other details on the answer sheet only in the manner prescribed. Failure to fill these details in the answer sheet correctly shall render the candidate liable to be declared unsuccessful.
For the post of Constable (Band), there will be no written test.
Failure to secure 40% of marks each for General and OBC/SBC candidates, 36% marks each for SC/ST Candidates and 30% marks each for Saharias and SC/ST candidates of Tribal Sub Plan area in each Part A, B and c separately shall render the candidate ineligible for the rest of the selection procedure. The marks obtained in both these parts will be taken into consideration for final selection. The answer sheet will be evaluated on computer under supervision of the officers nominated by Director General-cum-Inspector of Police. The results will be published in local dailies, on the Rajasthan Police Website (www.rajpolice.nic.in) and also put up on notice boards in the offices of Superintendent of Police or Commandants or other Appointing Authorities concerned.
The number of candidates called for the remaining selection procedure shall be restricted to five times the number of vacancies on the basis of marks obtained in the written examination. However all candidates of Scheduled Castes, Scheduled Tribes and Other Backward Classes/SBC category who secure marks equal to or higher than the cut off marks for the General Category, shall also be declared successful in part one of the examination (Written Test), only if such candidates have not availed any relaxation not available to general category candidates (Govt. order No.F-7(2)DOP/A-II/96 dated 17.06.96). It two or more candidates obtain equal marks, the person elder in age shall be placed higher, where two or more persons have same marks and age, the person having higher educational qualifications will be placed higher, and where two or more persons have same marks, age and educational qualifications, their names shall be placed in English alphabetical order.
The question papers and blank OMR (Optical Mark Recognition) answer sheet for the written test shall be supplied by the Polic4e Headquarters. It shall be the responsibility of the Superintendent of Police/Commandant/Unit Head concerned to ensure that the written test is get conducted for the candidates who have applied in the District/Battalion/Unit concerned and found eligible to take the written test and to send the completed answer sheets to the Police Headquarters for computer evaluation.
PART – IV
14.COMBINED SELECT LIST:-
A combined ........Rules, 1989.
For candidates of Constable (Band), the list shall be prepared on the basis of marks obtained in Part II and III.
Scheduled Castes/ Scheduled Tribes/ Other Backward Classes/ SBC candidates not seeking any relaxation in the standards of eligibility in terms of age, physical fitness, or marks obtained in written test and aggregate shall be treated as General category candidates if they are eligible for selection against the vacancies of General category candidates on the basis of merit shall be drawn for record and their selection shall be treated against general category for the purpose of calculation of category wise vacancies in future in the district/ battalion/ unit. .....”
Perusal of the relevant clauses of the advertisement, circulars and Standing Orders shows as to how reserve category candidates is to be given treatment if they have taken benefit of relaxation or concession. The circular and the Standing Orders were issued prior to the advertisement dated 14.10.2010. accordingly applicable to the present matter. As per the circular as well as Standing Orders, the candidates of reserve category candidates cannot migrate to open/ general category if availed benefit of concession other than fee.
The fact, however, remains that in view of the judgment of this court in the case of Manglaram (supra), those reserve category candidates who have taken benefit of age relaxation are also entitled to migrate to open/ general category. In the present matter, migration of reserve category is permitted even if they have taken benefit of relaxed standards in the selection. It is pursuant to the circular issued much after the advertisement.
The first question is as to whether subsequent circular dated 11.5.2011 can be applied to a recruitment pursuant to advertisement dated 14.10.2010. The law on the aforesaid issue is quite settled that change in the rules of game is not permissible in the midst of selection. Reference of the judgment in the case of “K. Manjusree versus State of Andhra Pradesh & anr”, reported in (2008) 3 SCC 512 is given along with relevant para 26 and 27 of the said judgment.
“26. As far as the first change is concerned, we have already held that scaling down in unexceptional as it is in consonance with the criteria decided by the Administrative Committee on 30.11.2004 before commencing the selection process.
27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum m arks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier resolutions dated 24.7.2001 and 21.2.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them – P.K. Ramachandra Iyer v. Union of India(1), Umesh Chandra Shukla v. Union of India (2) and Durgacharan Misra v. State of Orissa (3).”
(1)(1984) 2 SCC 141
(2)(1985) 3 SCC 721
(3)(1987) 4 SCC 646
In view of the judgment referred to above, it was not permissible to change rule of game in the midst of selection. This is more so when selection was started prior to the circular dated 11.5.2011. In the aforesaid background, the said circular cannot be applied to the selection pursuant to the advertisement dated 14.10.2010. This is more so when process of selection is to be governed by the Standing Orders, which shows that if reserve category candidates secured equal or higher marks to the general/ open category candidates then they would be allowed to migrate to general category if they have not availed any relaxation other than of fee.
In the background aforesaid, circular dated 11.5.2011 issued by the DOP cannot be applied to this selection as otherwise it has not been given retrospective effect thus action of the respondents to apply circular dated 11.5.2011 to permit migration of reserve category candidate to general category as per circular cannot be held to be legal. This is however answer first issue raised in these writ petitions.
The facts now come as to whether the circular dated 11.5.2011 is legally sustainable as validity of the said circular has also been challenged.
The question raised in that regard has to be answered after considering various judgments cited by both the parties, more specifically, the judgment in the case of Jitendra Kumar and Manglaram (supra). It is apart from the judgment in the case of Ramesh Ram (supra).
To appreciate the arguments, it would also be relevant to quote Articles 16 and 335 of the Constitution of India which are quoted thus -
“16. Equality of opportunity in matters of public employment.—
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the 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 services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”
“335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.—The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”
Perusal of Article 16 (1) shows right of equality in public employment irrespective of religion, race, caste, sex, descent, place of birth, residence or any of them
Article 16(4) provides reservation to Backward Classes. The issue involved in the present matter is regarding public employment thus reference of Article 15 has not been given.
Article 335 provides about claims of SC/ST to service and post. Those claims are subject to maintenance of efficiency of administration. The aforesaid Article applies to the case of promotion.
In view of the above, only Article 335 of the Constitution permits relaxation in qualifying marks in examination or lowering the standards of evaluation of SC/ST candidates only in the matter of promotion. The aforesaid issue was considered by the Hon'ble Supreme Court in the case of Andhra Pradesh Public Service Commission (supra). Paras 30 and 32 of the said judgment are quoted hereunder for ready reference -
“30.The proviso appended to Article 335 of the Constitution, to which our attention has been drawn by Mr. Rao, cannot be said to have any application whatsoever in this case. Lowering of marks for the candidates belonging to the reserved candidates is not a constitutional mandate at the threshold. It is permissible only for the purpose of promotion. Those who possess the basic eligibility would be entitled to appear at the main examination. While doing so, in regard to General English whereas the minimum qualifying marks are 40% for OCs, it would be 35% for BCs and 30% for SC/STs and physically handicapped persons. However, those marks were not to be counted for ranking.
32. Judging of merit may be at several tiers. It may undergo several filtrations. Ultimately, the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, times without number, to select candidates and/ or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor.”
Perusal of para 30 reveals that Article 335 applies in the matter of promotion and requirement to pass basic minimum criteria laid down even by the reserve caste candidate. The respondents are expected to work within the framework of the Constitution, however, they have given relaxation in qualifying marks in examination and lowered the standards of selection for reserve category candidates ignoring that it is permissible only in the matter of promotion and not in the case of direct recruitment. Issue aforesaid has already been decided in the case of Andhra Pradesh Public Service Commission (supra). The action of the respondents is thus in violation of Articles 16 and 335 of the Constitution.
The fact, however remains that rule permits for relaxed standards to the reserve category candidates for selection and validity of the Rajasthan Police Subordinate Service Rules, 1989 has not been challenged herein thus I am not further commenting on the aforesaid issue. Thus, consideration of the issue to migrate required to be made now in the light of the judgments of the Apex Court as well as this court cited above.
The respondents laid emphasis on the judgments of Jitendra Kumar Singh & anr versus State of Uttar Pradesh & ors, reported in (2010) 3 SCC 119 as well as “Mangla Ram Vishnoi versus State of Rajasthan & ors”, reported in 2011(1) WLC (Rajasthan) 148. Referring to paras 48, 49 and 75 in the case of Jitendra Kumar Singh, it has been submitted that concession given to the reserve category candidates cannot take away their right to migrate in open/ general category. The paras relied upon by the respondents are quoted hereunder -
“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 37 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. 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.
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.
Perusal of paras quoted above shows that issues for consideration before the court was in regard to the concession of fee and relaxation in age as it was not upsetting “level playing field”.
The reserve category candidates taken benefit of concession in fee and relaxation of age held entitled to migrate in the general/ open category.
The facts situation in the present matter is however different because apart from concession in fee and relaxation of age, the reserve category candidates have been extended benefit of relaxed standards in physical test so as in the written examination etc. If a candidate has taken benefit of relaxed standards in physical test, that too, after commencement of selection, it cannot be said that “level of playing field” for all candidates was equal.
If the judgment in the case of Jitendra Kumar Singh (supra) is applied to the present matter, then those relaxed standards after commencement of selection cannot be to be benefit of reserve category candidates to migrate in open/ general category as they competed selection with relaxed standards thus “level playing field” of candidates was not same. In the present matter, apart from relaxation in physical standards, a candidate of SC and ST category was required to obtain relaxed marks in the written examination to qualify for physical test. The subsequent appearance in the process of selection is with the relaxed standards of marks. The judgment in the case of Jitendra Kumar Singh (supra) allows reserve category candidates to migrate in the general/ open category only if they have taken concession in fee and relaxation of age, which is before initiation of process of selection. The respondents herein allowed relaxed standards during the process of selection thus 'level playing field' in this case cannot be said to be same.
The position of facts and law is similar in the case of Mangla Ram (supra) also. Therein also, it was categorically held that relaxation given to the reserve caste candidate is only of age and fee, thus they cannot be debarred to migrate to the general/open category. Therein, relaxed standards of the kind given in the present matter were not an issue for decision. The judgment in the case of Mangla Ram (supra) is more or less in reference to the judgment in the case of Jitendra Kumar Singh.
Learned counsel for petitioners, on the other hand, given reference of paras 4, 6, 11, 16, 17, 46, 47, 48, 49 and 77 in the case of Jitendra Kumar Singh, which are quoted hereunder -
4. The dispute between the petitioners and the respondents revolves around the issue of reservation of posts for Backward Classes, Scheduled Castes, Scheduled Tribes, Women Candidates and Sports-persons.
6. The procedure for selection included a Preliminary Written Test consisting of 300 marks. Candidates were required to secure at least 50% marks for being declared successful and entitled to participate in further test. This was followed by a Physical Test consisting of 100 marks. Again the candidate had to secure at least 50% or more marks. The marks obtained in the Preliminary Written Test and the Physical Test were, however, not to be included for determination of final merit. Candidates who qualified in the Preliminary Written Test and the Physical Test were required to appear in the Main Written Test consisting of 600 marks, having two papers i.e. General Hindi, General Knowledge and Mental Aptitude Test. Here again a candidate who secured 40% or more marks could only be declared successful. The written test consisted of two papers- (i) Hindi language and Essay consisting of 200 marks and (ii) General Knowledge and Mental Aptitude Test consisting of 400 marks. Thereafter, the candidate was to appear for interview which consisted of 75 marks. There were, however, no qualifying marks for the interview.
11.The Division Bench noticed the submissions made by the learned Counsel for the parties in detail and formulated seven issues which arose in the appeals. The issues were as under:
1. What is the extent of selection of a reserve category candidate against unreserved seats and in what circumstances he can be considered against unreserved vacancies besides reserve seats. The relevant factors, shades and nuisances for such adjustment also need to be identified, if any.
2. Whether Section 3(6) of Act of 1994 would apply where a candidate of reserve category though has availed relaxation meant for reserve category candidates namely fee and age but in all other respect, in the selection test, has completed with general category candidates and has secured more marks than the last selected general category candidate. In other words whether relaxation in age and fee would deprive and outsource him from competing against an unreserved seat in an open competition with general candidates.
3. Whether selection of reserve category candidates against reserved and unreserved constituting more than 50% is unconstitutional or otherwise contrary to law.
4. Whether reservation of seats for women is violative of Article 16 (2) of the Constitution of India.
5. Whether seats reserved for women can be carried forward in case suitable candidates are not available or the reservation being horizontal and applicable to all categories, the unfilled vacancies are to be filled by suitable male candidates.
6. Whether keeping 2% sports quota separate from the selection in question is illegal.
7. Whether selection in question is otherwise vitiated on account of any alleged irregularity or bungling.
16. The Division Bench has further held that the reserved category candidate can also compete against the unreserved seats under a criteria which is uniformly applicable to all the candidates. In case the selection criteria is lowered for the reserved category candidate, then such difference in standard or criteria would dis-entitle the reserved category candidate to compete in the general category. After analysing the law laid down by this Court in numerous judgments, the Division Bench has concluded that the conflicting claims of individuals under Article 16(1) and the preferential treatment given to a backward class under Article16 (4) of the Constitution has to be balanced, objectively.
17. The Division Bench then considered as to whether the concession or relaxation in the matter of fee and age would deprive a reserved candidate of his right to be considered against an unreserved seat. Can it be said that such a candidate is not a person who has competed with the general category in an open competition. It is noticed that under GOs (Government Orders) dated 11.04.1991, 19.12.1991 and 16.04.1992 and the clarification dated 19th October, 1992, it was provided that a reserved category candidate cannot compete with the open category candidate(s) after availing preferences which result in lowering of the prescribed standards. Such a candidate would only be considered against seat/post for the reserved category. However, after the promulgation of the 1994 Act and issuance of the Instructions dated 25th of March, 1994, the State Government has not treated relaxation in age and fee as relaxation in the standard of selection. Therefore, even if a candidate has availed concession in fee and or age limit, it cannot be treated to be a relaxation in standard of selection. Therefore, it would not deny a reserved category candidate selection in Open Competition with General Category candidates. Such concessions can be granted by the State under Section 8(1) of the Act.
46.It is not disputed before us that the standard of selection in the Preliminary Written Test and the Physical Test was common to all the candidates. In other words, the standard was not lowered in case of the candidates belonging to the reserved category. The Preliminary Written Test and the Physical Test were in the nature of qualifying examinations to appear in the Main Written Test. The marks obtained in the Preliminary Written Examination and the Physical Test were not to be included for determination of final merits. It was only candidates who qualified in the preliminary written test and the physical test that became eligible to appear in the main written test which consisted of 600 marks. As noticed earlier, this had two papers- General Hindi, General Knowledge and Mental Aptitude Test. A candidate who secured 40% or above would be declared successful in the written test. Thereafter, the candidates were to appear for interview of 75 marks. The final merit list would be prepared on the basis of merit secured in the main written test and the interview. Candidates appearing in the merit list, so prepared, would be declared selected.
47. It is common ground that more than 50000 candidates appeared in the preliminary written test. Upon declaration of the result on 22.9.2000, only 3,325 candidates were found successful. Thereafter, the physical test which was conducted from 29.10.2000 to 6.11.2000 reduced the successful candidates to 1454. It was these 1454 candidates who sat in the main written test held on 29.4.2001. Upon declaration of result, 1178 candidates were declared successful. The candidates who were successful in the written test were subjected to an interview between 18.6.2001 to 1.7.2001. The final result published on 6.7.2001 declared only 1006 candidates successful.
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. 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.
77. We have already noticed earlier that all the candidates irrespective of the category they belong to have been subjected to the uniform selection criteria. All of them have participated in the Preliminary Written Test and the Physical Test followed by the Main Written Test and the Interview. Such being the position, we are unable to accept the submissions of the learned Counsel for the petitioners/appellants that the reserved category candidates having availed relaxation of age are disqualified to be adjusted against the Open Category seats. It was perhaps to avoid any further confusion that the State of UP issued directions on 25.3.1994 to ensure compliance of the various provisions of the Act. Non-compliance by any Officer was in fact made punishable with imprisonment which may extend to period of three months.”
Out of the paras quoted above, paras 48 and 49 have been relied by both the parties. Perusal of the paras quoted above reveals that the reserve category candidates are entitled to concession and relaxation of age and fee to place them at par with general category candidates. The judgment in the case of Andhra Pradesh Public Service Commission (supra) is in reference to Article 335 of the Constitution of India and defined as to when such benefits can be given. In any case, para 77 of the aforesaid judgment clarifies the position in specific terms holding that the candidates, irrespective of the category, were subject to uniform selection criteria thus action of the respondents therein was held to be legal. This was more so when challenge to sections 3 and 8 of the Act of 1994 referred therein was not made so as the circular. In this case, selection is not with uniform selection criteria but with relaxed standards during the process of selection.
So far as the judgment in the case of Union of India versus Ramesh Ram & ors (supra) is concerned, issue for consideration was altogether different. It was a case where selection was made for various services with an option for preference. Many candidates of reserve category obtained more marks than the cut off for general category thus they were placed in the general list and not allowed to migrate in reserve list for preference of service. Hon'ble Apex Court held that a reserve category candidate can opt to remain in general list or to go back to the reserve list to seek preference of the service. It was keeping in mind that reserve category candidates having secured more marks and placed in the general list cannot be deprived to get preference of service in comparison to other reserve category candidate obtained less marks thus remained in the reserve list only. The facts and issue for consideration was thus altogether different. This is more so when it was in reference to particular rules applicable to those selections and the case in hand is not having the similar rules.
In the present matter, candidates of different categories were not subjected to uniform selection criteria. Following concessions and relaxations were given to the reserve category candidates during the process of selection which are summarised herein -
1. As per clause 5(iv) of the advertisement, relaxation in height and chest upto 5 cm has been given to the reserve category candidates if required number of candidates do not get through the normal physical standards.
2. As per clause 6(i) of the advertisement, candidates belonging to SC/ST needs to get minimum 36% marks and those belonging to tribal areas, only 30% marks in the written examination as against 40% marks for general/OBC category candidates.
3. As per clause 6(iv) of the advertisement, relaxation in standards at final stage is provided. For general category candidates, minimum percentage of marks is 45 but for reserved category candidates it is reduced to 40% and, for Saharia Adim caste/tribal sub-plan region, it is 35%.
All these concessions and relaxations were given during the process of selection thus 'level playing field' does not remain the same for all the candidates. In the facts and circumstances above, reserve category candidates taken benefit during the process of selection cannot seek migration to open category. It would be in violation of Article 16 (1) and Article 335 of the Constitution of India. The equality in the public employment has to be maintained. In case of difference of 'level playing field', if one is allowed to migrate than it would amount to making un-equals to be equal. This would be violative of Articles 14 and 16 of the Constitution of India. The relaxation in age and concession in fee do not change 'level playing field' as it is given prior to process of selection.
The reserve category candidates can migrate to open category if 'level playing field' during the process of selection remains the same. The concession in fee and relaxation of age is prior to the process of selection. Article 16 (1) of the Constitution provides for equality in public employment thus migration of reserve category candidates to open category can be permitted if there is a uniform criteria in the process of selection. If some relaxations are given to the reserve category candidates during process of selection then equality cannot be claimed at par with others so as to migrate. Sanctity of Article 16(1) of the Constitution has to be maintained.
Article 16(4) of the Constitution only provides for reservation to the backward class and not to the concession and relaxation during process of selection. A provision for that purpose exist in Article 335 of the Constitution thus the mandate of the Constitution is that once there is inequality in the process of selection, equality cannot be claimed for migration of reserve category candidates to open category.
The position aforesaid should not be confused in relaxation and concession in age and fee as those benefits are before start of the process of selection hence it does not create inequality or disturb 'level playing field' in the process of selection. Therefore, benefit of age relaxation and fee do not debar migration of reserve category candidates to open category if they have secured equal or more marks than open category candidates. The issue aforesaid needs to be viewed taking note of the observations and finding recorded by the Hon'ble Supreme Court in the case of Andhra Pradesh Public Service Commission (supra) wherein it was held that “.... the the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, times without number, to select candidates and/ or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor.” The ratio propounded aforesaid is to maintain constitutional mandate. The court should not take a view which destroys the basic framework of the constitution thus migration of reserve category candidates to open category should be allowed only if there is a uniform criteria in the process of selection and not otherwise.
In the case of Jitendra Kumar (supra) para 46, 48 and 77 deal with the first question framed in para 11 and it is the same as exist herein. In view of the judgment aforesaid, concession in fee and relaxation of age are not part of selection process, however, migration is permissible when in the process of selection all are given equal and similar treatment. The judgment referred above itself gives answer of the issue involved herein.
In view of the discussion made above, all these writ petitions are partly allowed with the following directions -
1. The circular dated 11.5.2011 would not be applicable to the present selection in view of the judgment in the case of K.Manjusree (supra), wherein, it was held that rules of game cannot be changed in the midst of selection thus respondents are directed to make appointment without applying circular dated 11.5.2011 in the present matter as initiation of recruitment is prior to the circular dated 11.5.2011 so as the advertisement. The migration of reserve category candidates to open/ general category can be permitted as per earlier circular dated 24.6.2008 and Standing Order applicable to present selection and not as per circular issued on 11.5.2011 as it is much subsequent to the advertisement and not given retrospective effect.
2. The circular dated 11.5.2011 provides for migration of reserve category candidates to open/ general category in the case where the candidates have taken special concession. The aforesaid circular needs to be given proper interpretation. It would be applicable in the case where reserve category candidates have taken benefit of concession of fee and relaxation in age. In those cases, one would be allowed to migrate to open/general category if obtained equal or more marks to the last candidate in open/general category. In case of any other concession or relaxation during the process of selection by reserve category candidate, he would not be allowed to migrate to open/general category as the 'level playing field' during the course of selection does not remain the same. Thus, respondents are directed to implement circular dated 11.5.2011 in the light of the directions given above but it would not be applicable to this selection as indicated in the first para of directions.
This disposes of the stay applications also.
(MN BHANDARI), J.
bnsharma
All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma)
PS-cum-JW
Source : http://rhccasestatus.raj.nic.in/smsrhcb/rhbcis/judfile.asp?ID=CW&nID=15152&yID=2011&doj=4/27/2012
http://rhccasestatus.raj.nic.in/smsrhcb/rhbcis/jtextfile.asp?ID=CW&nID=15152&yID=2011&doj=4/27/2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
ORDER
1. SB Civil Writ Petition No. 15152/2011
Madan Lal versus State of Rajasthan & ors
2. SB Civil Writ Petition No.14280/2011
Hansh Raj Sharma & anr versus State of Rajasthan & ors
3. SB Civil Writ Petition No.9507/2011
Mahesh Kumar Gurjar versus State of Rajasthan & ors
4. SB Civil Writ Petition No.9011/2011
Ashok Kumar Gurjar & ors versus State of Rajasthan & ors
5. SB Civil Writ Petition No.164/2012
Manju Bai & anr versus State of Rajasthan & ors
6. SB Civil Writ Petition No.264/2012
Vipin Kumar Sharma versus State of Rajasthan & ors
7. SB Civil Writ Petition No.14933/2011
Gajendra Singh versus State of Rajasthan & ors
8. SB Civil Writ Petition No.13207/2011
Pramod Awasthi & anr versus State of Rajasthan & ors
9. SB Civil Writ Petition No.14153/2011
Virendra Singh versus State of Rajasthan & ors
10. SB Civil Writ Petition No.15370/2011
Navjeet Singh Rajawat versus State of Rajasthan & ors
11. SB Civil Writ Petition No.16432/2011
Veer Pal Singh versus State of Rajasthan & ors
12. SB Civil Writ Petition No.16410/2011
Deshraj Singh versus State of Rajasthan & ors
13. SB Civil Writ Petition No.15588/2011
Karan Kumar Sharma versus State of Rajasthan & ors
13. SB Civil Writ Petition No.10346/2011
Jitendra Singh Gurjar & ors versus State of Rajasthan & ors
14. SB Civil Writ Petition No.11660/2011
Narendra Singh & ors versus State of Rajasthan & ors
15. SB Civil Writ Petition No.11965/2011
Dhara Singh Gurjar versus State of Rajasthan & ors
16. SB Civil Writ Petition No.12401/2011
Pradeep Kumar versus State of Rajasthan & ors
17. SB Civil Writ Petition No.15689/2011
Umesh Kumar & anr versus State of Rajasthan & ors
18. SB Civil Writ Petition No.524/2012
Shrawan Singh versus State of Rajasthan & ors
19. SB Civil Writ Petition No.13526/2011
Mahendra Singh Gurjar versus State of Rajasthan & ors
20. SB Civil Writ Petition No.17960/2011
Narendra Singh Gurjar & anr versus State of Rajasthan & ors
21. SB Civil Writ Petition No.15218/2011
Tarun Sharma versus State of Rajasthan & ors
22. SB Civil Writ Petition No.14335/2011
Ajeet Singh Khola versus State of Rajasthan & ors
23. SB Civil Writ Petition No.14629/2011
Harvendra Singh versus State of Rajasthan & ors
24. SB Civil Writ Petition No.15654/2011
Gajendra Singh versus State of Rajasthan & ors
25. SB Civil Writ Petition No. 2922/2012
Suresh Kumar vs State of Rajasthan & ors
Date of Order :- 27th April, 2012
PRESENT
HON'BLE MR. JUSTICE MN BHANDARI
Mr Mahendra Shah
Mr Vigyan Shah
Mr NK Singhal
Mr Rajendra Soni
Mr Nawal Singh Sikarwar
Mr Ankur Srivastava
Mr Sanjay Kumar Sharma
Mrs Sangeeta Sharma
Mr SK Saini
Mr Raj Kumar Kasana
Mr Manoj Bhardwaj
Mr Jitendra Kumar Sharma
Mr Shailendra Balwada
Mr RK Gauttam
Mr Shobhit Vyas
Mr Ram Pratap Saini – for petitioners
Mr SN Kumawat, Additional Advocate General with
Mr BS Rajawat, Dy GC – for the respondents
BY THE COURT:
Since on same set of facts, similar relief has been claimed, all these writ petitions have been heard together and decided by this common order.
For convenience, the facts and documents from the case of “Madan Lal Versus State of Rajasthan & ors”, SB Civil Writ Petition No. 15152/2011 have been taken.
The matters pertain to selection to various posts advertised by the respondents vide advertisement dated 14.10.2010. All the candidates appeared in the written examination other than for the post of Constable (Band). The candidates were required to obtain minimum percentage of marks in the written examination to qualify for physical test. It was made clear that candidates fail to qualify in the physical test would not be called in further process. For few posts, efficiency/ trade test was provided. The select list was then to be prepared based on the marks in the written examination, physical test or trade/efficiency test. The minimum qualifying marks to be placed in the final select list were also provided for different categories.
The grievance of the petitioners is regarding migration of reserve caste category candidates to general/open category though they were selected with relaxed standards. According to the petitioners, a candidate of the reserve caste appeared and selected with relaxed standards is not eligible to migrate in the open/ general category if he has obtained more marks than marks of last candidate in open/ general category.
Learned counsel for petitioners submitted that advertisement provides not only concession and relaxation of fee and age in favour of reserve category candidates but further relaxation in standards of selection. Referring to the advertisement, it is submitted that as per clause 5(iii), reserve category candidates have been given relaxation in age by five years. Clause 5(iv) of the advertisement provides relaxation of height and chest upto 5 cm though a candidate should be selected for police services with required fitness and standard. Relaxation in height and chest by 5 cm is nothing but a benefit of relaxed standards for reserve caste during the process of selection.
Similar relaxation has been given even for minimum passing marks in the written examination. Referring to clause 6(i), a candidate of general and OBC category is required to obtain minimum 40 marks, whereas, for SC/ST candidate, it is only 36% marks and for those reserve caste belonging to tribal areas of few districts , requirement was only of 30% marks.
In the similar manner, as per clause 6(iv) relaxation in standards at final stage is provided for reserve category candidates. For general category, minimum passing marks are 45%, for SC/ST, OBC, SBC and female, it is 40% and for Saharia Adim caste/ tribal sub-plan region, it is 35%.
It is urged that so far as benefit of age and fee is concerned, it is not a concession in the standards of selection, whereas, all other benefits to the reserve category candidates are nothing but benefits of relaxed standards for selection. In the aforesaid background, those reserve category candidates who have taken benefit of relaxed standards for selection are not entitled to migrate from reserve category to general/ open category as per the circular of the Department of Personnel, Government of Rajasthan dated 17.6.1996.
Learned counsel for petitioners further made a reference of the circular issued by the DOP on 24.6.2008. Referring to clause 6.2 and 20 of the aforesaid circular, attention of the court was drawn to show that if a member of reserve category has taken relaxation in age etc. would not be considered for open category even if secured higher marks than the candidate last selected in general/open category. Clause 20 of the circular further reiterates aforesaid position. The clauses provide that a reserve category candidate can migrate to general/ open category provided he has not taken any concession other than fee.
A further reference of advertisement is given, which also provides similar conditions. The respondents issued an Standing Order bearing No.05/2010 to lay down the procedure for selection in question. Clause 12 of the said Standing Order also restrains migration of the reserve category candidates to open/ general category if one has availed relaxation as mentioned in the circular.
In the aforesaid background, migration of reserve category candidates was permissible to general/ open category candidates if they have not taken relaxation as indicated in the circular dated 17.6.1996 and dated 24.6.2008 apart from Standing Order No.05/2010 at Annexure-11.
The selection in reference was to be made as per the terms of Standing Order. The respondents, however, migrated reserve category candidates to open/ general category ignoring that many of them were selected with the benefit of relaxed standards. This seems to be in view of the circular dated 11.5.2011, wherein, migration of reserve category candidates taken benefit of special relaxation is allowed. A challenge to the circular dated 11.5.2011 has also been made being violative of Articles 16 and 335 of the Constitution of India. The aforesaid circular has been issued even in ignorance of the Constitutional Bench judgment of the Hon'ble Supreme Court in the case of “M Nagaraj versus Union of India”, reported in (2006) 8 SCC 212.
It is stated that the circular dated 11.5.2011 is not applicable to the present selection as the advertisement was issued and even selection was started much prior to the aforesaid circular. It is settled law that game of rules cannot be changed after initiation of process of selection or in midst. It is accordingly urged that the circular dated 11.5.2011 may not be applied to the selection pursuant to the advertisement dated 14.10.2010 and, otherwise, circular dated 11.5.2011 is not legally sustainable. To substantiate the arguments, learned counsel for petitioners made a reference of the judgment of the Hon'ble Supreme Court in case of “Post Graduate Institute of Medical Education & Research versus Faculty Association” reported in (1998) 4 SCC page 1 as also “Union of India & ors versus Dalbir Singh & anr” reported in (2009) 7 SCC 251.
The issue in reference to Article 335 of the Constitution was decided in the case of “Andhra Pradesh Public Service Commission versus Baloji Badhavath & ors”, reported in (2009) 5 SCC 1. Therein, the issue of admissibility of concession and relaxation in selection to the reserve category candidate has been dealt with.
Learned counsel for petitioners further explained judgment of the Apex Court in the case of “Jitendra Kumar Singh & anr versus State of Uttar Pradesh & ors”, reported in (2010) 3 SCC 119 and also in the case of “Union of India versus Ramesh Ram & ors”, reported in (2010) 7 SCC 234. A prayer is made to restrain migration of reserve category candidates to open category, who have taken benefit of relaxed standards for selection even if they have obtained higher marks than last candidate in general/open category. The migration may be permitted for those reserve category candidates who had not availed any concession for selection and yet obtained higher marks than the last candidate in the open/general category.
Learned counsel for respondents, on the other hand, submit that the issue involved in the present matter has already been settled by the Hon'ble Apex Court in the case of Jitendra Kumar Singh (supra). The migration of the reserve category candidates has been made permissible if they obtain more marks then the last candidate in open/ general category. It is irrespective of the relaxation or concession in age and fee. Particularly, reference of paras 48, 49 and 75 of the said judgment has been given to show that action of the respondents is in conformity to the judgment of the Apex Court.
Learned counsel for respondents further made reference of another judgment of this court in the case of “Mangla Ram Vishnoi versus State of Rajasthan & ors” reported in 2011 (1) WLC (Raj.) 148, wherein also, migration of reserve category candidate is held permissible even if they have taken benefit of relaxation in age and fee.
It is submitted that no relaxation was given to the reserve category candidates in merit which alone can be a bar to migrate in the general/ open category. The type of concession given to them was only of the nature to place them equal to the general/ open category.
The fact of issuance of Standing Order and circular earlier to the advertisement dated 14.10.2010 has not been disputed being a matter of fact. It has been admitted that respondents issued detailed Standing Order on 7.10.2010 i.e. just before the advertisement to govern terms of recruitment. The Standing Order was made effective to the recruitment for year 2009-10 onwards. Respondents were required to hold selection as per instructions given therein. The fact however remains that the DOP issued a circular on 11.5.2011 holding that a candidate of reserve category, taken special concession, can migrate in general/ open category if obtained more marks than the last candidate in the general/ open category. In the light of the subsequent circular, respondents allowed migration of reserve category candidates to the general list even if they had taken special concession in the selection. In the aforesaid background, there is no illegality in the action of the respondents to permit migration of the reserve category candidates based on their merit even if they had taken special concession. The Rules/ Instructions can be changed by the respondents in the midst of selection and even after its initiation. It is accordingly prayed that all the writ petitions may be dismissed with costs.
I have considered rival submissions of learned counsel for the parties and perused the record of the case besides the judgments cited at Bar.
It is a case where pursuant to the advertisement dated 14.10.2010, respondents held selection for various posts in police department. Selections were obviously to be made as per the Rules, terms of advertisement and Standing Orders issued by the department prior to the advertisement.
The grievance of the petitioners is in regard to migration of reserve category candidates to general/ open category thus foremost question for my consideration is as to whether in the facts and circumstances, migration of reserve category candidates to open category, who have availed various concessions and relaxation, is valid.
The other issue is regarding validity of the circular dated 11.5.2011 and its applicability to the selection pursuant to the advertisement dated 14.10.2010.
To determine the issues indicated in the preceding paras, reference of certain clauses of the advertisement would be relevant thus they are quoted herein for ready reference -
Para 5(iii) of the advertisement makes reference about age which is quoted hereunder:-
“5- ????? ???? ???????/???????/??? -
(i)....
(ii)....
(iii)??? ????:- ???????? ????? ??????? ???? ????, 1989 ?? ???? – 11 ??? ????? ????? ?? ???????? ?????? ??-7(2)?????/?-2/84-????? ?????? 25.6.2004 ?? ?????? ??? ?? ???? 1 ?????, 2011 ?? ???? ????? ??????????? ?? ??????:-
???? (category)
?????????? ???????/??????/????????/?????
?????????? ???????
????? ???? ?? ??? ?? ???? ???? ?? (??????? ??? ????)
????? ???? ?? ???? ?? ???? ???? ?? (?????? ??? ????)
????? ???? ?? ??? ?? ???? ???? ?? (??????? ??? ????)
????? ???? ?? ???? ?? ???? ???? ?? (?????? ??? ????)
?????/?????
?????
?????
?????/?????
?????
?????
???????
01/01/93
02/01/88
02/01/83
01/01/93
02/01/85
02/01/80
??.??./??.??/?.??.??./??.??.??. ????
01/01/93
02/01/83
02/01/78
01/01/93
02/01/80
02/01/75
??????? ??????? ??? ??? ?????????? ?? ?????? ??? ????? ????????
01/01/93
02/01/85
02/01/80
01/01/93
02/01/82
02/01/77
???????? ?????
01/01/93
02/01/71
02/01/71
01/01/93
02/01/71
02/01/71
Perusal of above quoted clause reveals five years age relaxation to reserve category candidates.
Clause 5(iv) and note appended thereto is also quoted herein -
“(iv) ??????? ??????? - ???????? ????? ??????? ???? ????, 1989 ?? ???? 14 ?? ?????? ??????????? ?? ?????, ???? ?? ??? ??? ??? ??????????? ???? ???????? ??:-
???????
??????? ???????
????? ??? ???????
?????
?????
?????
?????
??????? ?????
168 ??.??.
152 ??.??
160 ??.??.
152 ??.??.
???? (???? ??????? ?? ???)
???? ????? - 81 ??.??.
?????? ?? – 86 ??.??.
(???? ?? ????? ?? ?? ?? 5 ??.??.)
???? ????
???? ????? - 79 ??.??.
?????? ?? – 84 ??.??.
(???? ?? ????? ?? ?? ?? 5 ??.??.)
???? ????
??? (???? ??????? ?? ????)
???? ????
47.5 ??.????.
???? ????
47.5 ??.????.
??? - ??? ??????? ??????? ?? ???? ??????? ?????? ??????? ????????? ?? ?????? ???????? ????/???????? ?????? ?? ????? ???????? ???? ???? ??? ?? ?????? ????? ? ???? ??? 5 ??.??. ?? ??? ??? ?????"
Perusal of above quoted clause and note appended thereto shows relaxation in standards of height and chest to SC and ST candidates in a given situation.
Clause 6(i) of the advertisement is also quoted herein for ready reference -
“(i) fyf[kr ijh{kk
(i)??????????? ?? ????? ijh{kk ,d gh fnuakd dks lEcfU/kr ftyk@;wfuV@cVkfy;u }kjk fu/kkZfjr LFkku ij vk;ksftr dh tk,xhA ijh{kk dsUnz ds lEcU/k esa vkosnd dh dksbZ izkFkfedrk ugha gksxh rFkk u gh dksbZ vkifRr Lohdkj gksxhA fyf[kr ijh{kk dk iz'u ???? 75 vadksa dk gksxkA fyf[kr ijh{kk rhu Hkkxksa esa oLrqfu"B (Objective type) izdkj dh gksxhA fyf[kr ijh{kk dk Hkkx ^v* ^foospuk ,oa rkfdZd ;ksX;rk* ds iz'uksa ls lEcfU/kr 30 vad dk] Hkkx ^c* lkekU; Kku] lkekU; foKku] lkekftd foKku ,o a lelkef;d fo"k;k sa ij 15 vad dk rFkk Hkkx ^l* ^jktLFkku ds bfrgkl] laLd`fr] dyk] Hkwxksy bR;kfn fo"k;ksa ij vk/kkfjr 30 vad dk gksxkA bl ijh{kk esa lkekU;] o vU; fiNM+k oxZ ds vH;fFkZ;ksa ds fy, 40 izfr'kr] vuqlwfpr tkfr o vuqlwfpr tu tkfr oxZ ds vH;fFkZ;ksa ds fy, 36 izfr'kr rFkk ckjkW ftys dh 'kkgckn ,oa fd'kuxat rglhy ds fuoklh lgfj;k vkfne tkfr ,o a VkªbZcy lc&Iyku ??????? ds LFkkuh; vuqlwfpr tkfr@vuqlwfpr tutkfr vH;FkhZ;ksa ds fy, 30 izfr'kr vad] iz'u ???? ds izR;sd Hkkx esa vyx&vyx izkIr djuk vfuok;Z gksxkA Hkkx ^v* ds izR;sd iz'u dk lgh mRrj nsus ij 1 vad izkIr gksxk rFkk blds fdlh iz'u dk xyr mRrj nsus ij ¼ vad dkVk tk;sxkA Hkkx ^c* ,oa ^l* ds izR;sd iz'u ½ vad ds gksxsa . buds fdlh iz'u dk xyr mRrj nsus ij izkIr vadksa esa ls izR;sd xyr mRrj dk 1/3 vad dkVk tk,xkA
Perusal of the aforesaid clause shows relaxed standards for SC and ST candidates for passing written examination.
Clause 6(iv) of the advertisement is also quoted herein for ready reference -
“p;u lwph& vH;fFkZ;ksa }kjk lexz izdkj ¼fyf[kr ijh{kk] 'kkjhfjd n{krk ijh{kk] n{krk ijh{kk ,oa fo'ks"k ;ksX;rk½ ls vadksa dk ;ksx 45 izfr'kr lkekU; oxZ ds fy,, 40 izfr'kr vuq tkfr@vuq tutkfr] vU; fiNMk oxZ fo'ks"k fiNMk oxZ ,o a efgyk vH;fFkZ;ksa ds fy, rFkk 35 izfr'kr lgfj;k vkfne tkfr@VzkbZcy lc Iyku ??????? ds vuq tkfr@vuq tutkfr fuokfl;ksa ds fy, vftZr ugha djus ij mUgsa vuqrhZ.k ?kksf"kr fd;k tk,xkA mijksDr fu/kkZfjr vadksa ls vf/kd vad izkIr djus okys vH;fFkZ;ksa dh izkIrkadksa ds vk/kkj ij fu;ekuqlkj ojh;rk dze esa p;u lwph rS;kj dh tkosxhA lEHkkfor fjDr inksa ds fo:} p;u fd;s x;s vH;fFkZ;kas dks fjDr in miyC/k gksus ij gh fu;qfDr nh tk ldsxhA”
Perusal of the aforesaid shows again relaxed standards for reserve category candidates for passing selection.
Clause 6(ii) of the advertisement is also quoted for ready reference-
“ekirksy ,oe 'kkjhfjd n{krk ijh{kk&
lEcfU/kr ftyk@;wfuV@cVkfy;u dh fjfDr;ksa ds oxZokj ikap xq.kk mRrh.kZ vH;fFkZ;ksa dks 'kkjhfjd eki&rksy o 'kkjhfjd n{krk ijh{kk gsrq ???????? fd;k tk,xkA blds vfrfjDr vuq tkfr] vuq tutkfr ,oa vU; fiNMk ox]Z fo'ks"k fiNMk oxZ ds mu vH;kfFk;ksa dks ftUgksusa vk;q esa NwV izkIr ugha dh gS ,oa lkekU; oxZ ds dVvkWQ ds leku vFkok ???? vf/kd vad izkIr fd;s gSa dks Hkh ???????? fd;k tk;sxkA lkekU; oxZ esa lfEefyr fd;s x;s ,sls vH;FkhZ dsoy lkekU; oxZ dh fjfDr;ksa ds fo:} 'kkjhfjd n{krk ijh{kk esa lfEefyr gks ldsxsa.
HkrhZ cksMZ }kjk 'kkjhfjd eki&rksy esa ;ksX; ik, x;s vH;fFkZ;ksa dh fuEukuqlkj 'kkjhfjd n{krk ijh{kk vk;ksftr dh tkosxhA
VsLV ekin.M (vf/kdre)
* iq:"kksa ds fy, 10 fd-eh- nkSM+ 60 fefuV esa
* efgykvksa ds fy, 5 fd-eh- nkSM+ 35 fefuV esa
* HkwriwoZ lSfudksa@ 5 fd-eh- nkSM 30 fefuV esa
VªkbZcy lcIyku
??????? ds vuq-tkfr@
tutkfr@ lgfj;k vkfnoklh gsrq
'kkjhfjd n{krk ijh{kk esa vuqRrh.kZ vH;fFkZ;ksa dks vfxze izfdz;k esa 'kkfey ugha fd;k tkosxkA 'kkjhfjd n{krk ijh{kk esa izkIr vad vfUre p;u ds fy, lfEefyr fd;s ???????."
Clause 7(ii) of the advertisement is also relevant thus quoted hereunder -
“foKfIr esa fn;s x;s izk:Ik ds vuqlkj iw.kZ :i ls Hkjs x;s vkosnu&???? yhxy ¼8-5^^X14-0^^½ vkdkj ds dkxt ij bfPNr ftyk@;wfuV@cVkfy;u ds iqfyl v/kh{kd@ dek.MsUV ds dk;kZy; esa fnuakd 12-11-2010 dh lka;dky 5 ct s rd O;fDr'k% vFkok Mkd }kjk izkIr gks tkus pkfg,A foyEc ls izkIr vkosnu ???? fdlh Hkh fLFkfr esa Lohdkj ugha fd;s tk;s tk;sxsa. lkekU;@vkschlh@,lchlh oxZ ds vH;fFkZ;ksa ds fy, ijh{kk 'kqYd :0 200@& ,oa vuqlwfpr tkfr ,oa vuqlwfpr tu tkfr ds vH;fFkZ;ksa ds fy, dsoy :i;s 150@& fu/kkZfjr gS. ijh{kk 'kqYd dsoy Hkkjrh; iksLVy vkWMZj tks lEcfU/kr ftyk@;wfuV ds iqfyl v/kh{kd] dek.MsUV] vkj,lh cVkfy;u dks lEcksf/kr gks Lohdkj fd;k tk;sxkA uxn] cSad MzkQ~V] cSad pkyku] pSd vFkok vU; rjhds ls izsf"kr ijh{kk 'kqYd Lohdkj ugha fd;k tk;sxkA vkosnu ???? dk izk:i jktLFkku iqfyl foHkkx dh oSclkbZV www.rajpolice.nic.in ?? Hkh miYkC/k ??.”
Perusal of the clauses quoted above shows that so far as clause 5(iii) and 7(ii) of the advertisement are concerned, it gives relaxation in age and fee to the reserve category candidates, whereas clause 5(iv) and clause 6(i) and 6(iv) give benefit of relaxed standards for selection to the reserve category candidates.
The argument of learned counsel for petitioners is that all the concessions or relaxations are in the standards of selection to the reserve category candidates. If any candidate take benefit of relaxed standards for selection, he should not be allowed to migrate in general/ open category. To appreciate the aforesaid argument, reference of circular dated 17.6.1996 issued by the DOP is given, which is quoted hereunder for ready reference -
“GOVERNMETN OF RAJASTHAN
DEPARTMENT OF PERSONNEL
(A-GrII)
No.F.7(2)DOP/A-II/96 Jaipur, Dated: 17.6.1996
CIRCULAR – ORDER
Sub: Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in posts/ services under the Government.
According to the existing rule and circulars issued by the Government from time to time, reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes have been made to the extent of 16%, 12% and 21% respectively in the matter of direct recruitment. The matter under consideration of this department is as to whether:-
(1)the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes who get selected on general merit shall be counted against the reserve vacancies or general vacancies; and
(2)whether those who get in the merit list as a result of special concession given to them in terms of age and attempts should be considered against general vacancies or reserve vacancies.
In this connection it is clarified that according to order No.F.2(6) DOP/ A-II/88 dated 15th February, 1990 it was decided that where candidates belonging to Scheduled Castes and Scheduled Tribes qualify on merit against direct recruitment quota posts these posts should not be set off against posts in reserve quota or in other words, the reserve quota should be filled in exclusively from amongst the candidates who qualify under the terms and conditions applicable to the reserve quota. Again vide notification No. 9(8) DOP/A-V/90 dated 28th September, 1993 it was clarified that the candidates belonging to Other Backward Classes recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 21%.
The matter has again been examined in consultation with Law Deptt. and the Law Deptt. have advised that the quota of post for which citizen is eligible to compete in entirely different to reserve quota and for recruitment to the post falling in open competition quota, the condition of eligibility can be different to the conditions of eligibility for recruitment to the post of reserve quota. Therefore, the candidates belonging to SC/ST and OBC who get selected fulfilling the conditions of eligibility regarding age limit and attempts prescribed for general candidates can be placed on general merit lit and those who get placement in the merit list as a result of special concession given to them in terms of age and attempts should not be considered as the general candidates but should be considered against reserve vacancies.
All the Appointing Authorities and Competent Authorities who are authorised to make selections are advised to follow the above principle in making selection against direct recruitment quota posts.
Sd/-
(Suraj Mal Kerwal)
Deputy Secretary to the Goernment.”
Perusal of the circular reveals that migration of reserve category candidates is not made permissible if they take special concession in terms of age and attempts. The State Government, thereafter, issued another circular dated 24.6.2008. Relevant parts 6.2 and 20(1) of the said circular are also quoted herein for ready reference -
“6.2 In the state, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc) available to them other than that relating to payment of examination fee in case of direct recruitment. On the other hand, women, persons with disabilities, sportspersons, in-servicemen or non-gazetted employees and ex servicemen are counted against their respective category, even if they are suitable for selection against non-reserved or open competition vacancy/post. But it may be noted that if any remaining candidate of these categories after providing the vacancies/posts reserved for them are more meritorious than the last person of the open competition category, such candidate will be selected even if it leads to selection of more candidates than that provided by virtue of reservation. This is to say that there is no reservation in favour of the non reserved categories like the males or the non sports persons. To take an example, assume that 1000 candidates are to be selected. Also assume that there is reservation for SC/ST/OBC categories and women as follows:-
Table I
SC ST OBC OC Total
Fem Total Fem Total Fem Total Fem Total Fem Total
48 160 36 120 63 210 153 510 300 1000
“20. Preparation of merit list in direct recruitment
20.1 We now come to the question of how to select candidates so that all the categories get the number of posts reserved for them. Separate lists of candidates in the order of their merit should be made for each category for which there is reservation – SC, ST, OBC, OC women, SC women, ST women, OBC women, women, PD, ES, NG and SP - as well a common list. In the first round, first of all, the OC category candidates should be selected from the common list. As many OC category candidates as are the number of vacancies in the OC category should be selected. Any member of the SC/ST/OBC category, appearing in this list should be counted towards OC category unless he has taken some concession admissible to these categories other than concession in fees. Thereafter, list of SC, ST and OBC candidates should be prepared from the remaining candidates in the lists of SC, ST and OBC categories respectively.”
Perusal of clause 6.2 reveals that reserve category candidate can compete against non-reserve vacancies if he has not taken concession like age etc other than concession in examination fee. The position aforesaid has been reiterated in clause 20 to confirm the position as given in clause 6.2.
In view of arrangement made in the circular, question raised in these petitions can be answered, however, petitioners have further made reference of Standing Orders under which recruitment has taken place. The Standing Order bearing No.05/2010 was issued by the respondents on 7.10.2010 and is annexed as Annexure-11. Clause 12 of the said Standing Order provides that after written examination, reserve category candidate can migrate to open category, if obtained higher or equivalent marks to cut off marks for open category. Relevant paras of the Standing Order dated 7.10.2010 are also quoted hereunder -
“In suppression of Standing Order No.01/2008, amendments thereto and all related orders, the following instructions are issued to regulate recruitment of Constable, Constable (Operator), Constable (Driver), Constable (Band) and Constable (Mounted) in Sections- I, II, III and IV of Rule 4 of RPSS Rules, 1989. These instructions shall be effective for recruitment for the year 2009-2010 onwards.
“12.Procedure for selection:-
Candidates applying for selection shall be required to go through the following selection process:-
PART – I
WRITTEN TEST INCLUDING REASONING TEST:- 75 Marks
The written test for the recruitment of all categories of constables shall be for a total of 75 marks. An objective type written test will be held simultaneously throughout the State under the directions of Director General-cum-Inspector of Police. It shall consist of three parts. Part A will have questions on reasoning and logic. Part B will include questions on general knowledge, general science and current affairs. Part C will have questions specifically on History, Geography, Culture and Arts of Rajasthan. There will be provision for negative marking for incorrect answers in written examination. Candidates shall be required to writ their roll numbers and other details on the answer sheet only in the manner prescribed. Failure to fill these details in the answer sheet correctly shall render the candidate liable to be declared unsuccessful.
For the post of Constable (Band), there will be no written test.
Failure to secure 40% of marks each for General and OBC/SBC candidates, 36% marks each for SC/ST Candidates and 30% marks each for Saharias and SC/ST candidates of Tribal Sub Plan area in each Part A, B and c separately shall render the candidate ineligible for the rest of the selection procedure. The marks obtained in both these parts will be taken into consideration for final selection. The answer sheet will be evaluated on computer under supervision of the officers nominated by Director General-cum-Inspector of Police. The results will be published in local dailies, on the Rajasthan Police Website (www.rajpolice.nic.in) and also put up on notice boards in the offices of Superintendent of Police or Commandants or other Appointing Authorities concerned.
The number of candidates called for the remaining selection procedure shall be restricted to five times the number of vacancies on the basis of marks obtained in the written examination. However all candidates of Scheduled Castes, Scheduled Tribes and Other Backward Classes/SBC category who secure marks equal to or higher than the cut off marks for the General Category, shall also be declared successful in part one of the examination (Written Test), only if such candidates have not availed any relaxation not available to general category candidates (Govt. order No.F-7(2)DOP/A-II/96 dated 17.06.96). It two or more candidates obtain equal marks, the person elder in age shall be placed higher, where two or more persons have same marks and age, the person having higher educational qualifications will be placed higher, and where two or more persons have same marks, age and educational qualifications, their names shall be placed in English alphabetical order.
The question papers and blank OMR (Optical Mark Recognition) answer sheet for the written test shall be supplied by the Polic4e Headquarters. It shall be the responsibility of the Superintendent of Police/Commandant/Unit Head concerned to ensure that the written test is get conducted for the candidates who have applied in the District/Battalion/Unit concerned and found eligible to take the written test and to send the completed answer sheets to the Police Headquarters for computer evaluation.
PART – IV
14.COMBINED SELECT LIST:-
A combined ........Rules, 1989.
For candidates of Constable (Band), the list shall be prepared on the basis of marks obtained in Part II and III.
Scheduled Castes/ Scheduled Tribes/ Other Backward Classes/ SBC candidates not seeking any relaxation in the standards of eligibility in terms of age, physical fitness, or marks obtained in written test and aggregate shall be treated as General category candidates if they are eligible for selection against the vacancies of General category candidates on the basis of merit shall be drawn for record and their selection shall be treated against general category for the purpose of calculation of category wise vacancies in future in the district/ battalion/ unit. .....”
Perusal of the relevant clauses of the advertisement, circulars and Standing Orders shows as to how reserve category candidates is to be given treatment if they have taken benefit of relaxation or concession. The circular and the Standing Orders were issued prior to the advertisement dated 14.10.2010. accordingly applicable to the present matter. As per the circular as well as Standing Orders, the candidates of reserve category candidates cannot migrate to open/ general category if availed benefit of concession other than fee.
The fact, however, remains that in view of the judgment of this court in the case of Manglaram (supra), those reserve category candidates who have taken benefit of age relaxation are also entitled to migrate to open/ general category. In the present matter, migration of reserve category is permitted even if they have taken benefit of relaxed standards in the selection. It is pursuant to the circular issued much after the advertisement.
The first question is as to whether subsequent circular dated 11.5.2011 can be applied to a recruitment pursuant to advertisement dated 14.10.2010. The law on the aforesaid issue is quite settled that change in the rules of game is not permissible in the midst of selection. Reference of the judgment in the case of “K. Manjusree versus State of Andhra Pradesh & anr”, reported in (2008) 3 SCC 512 is given along with relevant para 26 and 27 of the said judgment.
“26. As far as the first change is concerned, we have already held that scaling down in unexceptional as it is in consonance with the criteria decided by the Administrative Committee on 30.11.2004 before commencing the selection process.
27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum m arks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier resolutions dated 24.7.2001 and 21.2.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them – P.K. Ramachandra Iyer v. Union of India(1), Umesh Chandra Shukla v. Union of India (2) and Durgacharan Misra v. State of Orissa (3).”
(1)(1984) 2 SCC 141
(2)(1985) 3 SCC 721
(3)(1987) 4 SCC 646
In view of the judgment referred to above, it was not permissible to change rule of game in the midst of selection. This is more so when selection was started prior to the circular dated 11.5.2011. In the aforesaid background, the said circular cannot be applied to the selection pursuant to the advertisement dated 14.10.2010. This is more so when process of selection is to be governed by the Standing Orders, which shows that if reserve category candidates secured equal or higher marks to the general/ open category candidates then they would be allowed to migrate to general category if they have not availed any relaxation other than of fee.
In the background aforesaid, circular dated 11.5.2011 issued by the DOP cannot be applied to this selection as otherwise it has not been given retrospective effect thus action of the respondents to apply circular dated 11.5.2011 to permit migration of reserve category candidate to general category as per circular cannot be held to be legal. This is however answer first issue raised in these writ petitions.
The facts now come as to whether the circular dated 11.5.2011 is legally sustainable as validity of the said circular has also been challenged.
The question raised in that regard has to be answered after considering various judgments cited by both the parties, more specifically, the judgment in the case of Jitendra Kumar and Manglaram (supra). It is apart from the judgment in the case of Ramesh Ram (supra).
To appreciate the arguments, it would also be relevant to quote Articles 16 and 335 of the Constitution of India which are quoted thus -
“16. Equality of opportunity in matters of public employment.—
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the 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 services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”
“335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.—The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”
Perusal of Article 16 (1) shows right of equality in public employment irrespective of religion, race, caste, sex, descent, place of birth, residence or any of them
Article 16(4) provides reservation to Backward Classes. The issue involved in the present matter is regarding public employment thus reference of Article 15 has not been given.
Article 335 provides about claims of SC/ST to service and post. Those claims are subject to maintenance of efficiency of administration. The aforesaid Article applies to the case of promotion.
In view of the above, only Article 335 of the Constitution permits relaxation in qualifying marks in examination or lowering the standards of evaluation of SC/ST candidates only in the matter of promotion. The aforesaid issue was considered by the Hon'ble Supreme Court in the case of Andhra Pradesh Public Service Commission (supra). Paras 30 and 32 of the said judgment are quoted hereunder for ready reference -
“30.The proviso appended to Article 335 of the Constitution, to which our attention has been drawn by Mr. Rao, cannot be said to have any application whatsoever in this case. Lowering of marks for the candidates belonging to the reserved candidates is not a constitutional mandate at the threshold. It is permissible only for the purpose of promotion. Those who possess the basic eligibility would be entitled to appear at the main examination. While doing so, in regard to General English whereas the minimum qualifying marks are 40% for OCs, it would be 35% for BCs and 30% for SC/STs and physically handicapped persons. However, those marks were not to be counted for ranking.
32. Judging of merit may be at several tiers. It may undergo several filtrations. Ultimately, the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, times without number, to select candidates and/ or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor.”
Perusal of para 30 reveals that Article 335 applies in the matter of promotion and requirement to pass basic minimum criteria laid down even by the reserve caste candidate. The respondents are expected to work within the framework of the Constitution, however, they have given relaxation in qualifying marks in examination and lowered the standards of selection for reserve category candidates ignoring that it is permissible only in the matter of promotion and not in the case of direct recruitment. Issue aforesaid has already been decided in the case of Andhra Pradesh Public Service Commission (supra). The action of the respondents is thus in violation of Articles 16 and 335 of the Constitution.
The fact, however remains that rule permits for relaxed standards to the reserve category candidates for selection and validity of the Rajasthan Police Subordinate Service Rules, 1989 has not been challenged herein thus I am not further commenting on the aforesaid issue. Thus, consideration of the issue to migrate required to be made now in the light of the judgments of the Apex Court as well as this court cited above.
The respondents laid emphasis on the judgments of Jitendra Kumar Singh & anr versus State of Uttar Pradesh & ors, reported in (2010) 3 SCC 119 as well as “Mangla Ram Vishnoi versus State of Rajasthan & ors”, reported in 2011(1) WLC (Rajasthan) 148. Referring to paras 48, 49 and 75 in the case of Jitendra Kumar Singh, it has been submitted that concession given to the reserve category candidates cannot take away their right to migrate in open/ general category. The paras relied upon by the respondents are quoted hereunder -
“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 37 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. 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.
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.
Perusal of paras quoted above shows that issues for consideration before the court was in regard to the concession of fee and relaxation in age as it was not upsetting “level playing field”.
The reserve category candidates taken benefit of concession in fee and relaxation of age held entitled to migrate in the general/ open category.
The facts situation in the present matter is however different because apart from concession in fee and relaxation of age, the reserve category candidates have been extended benefit of relaxed standards in physical test so as in the written examination etc. If a candidate has taken benefit of relaxed standards in physical test, that too, after commencement of selection, it cannot be said that “level of playing field” for all candidates was equal.
If the judgment in the case of Jitendra Kumar Singh (supra) is applied to the present matter, then those relaxed standards after commencement of selection cannot be to be benefit of reserve category candidates to migrate in open/ general category as they competed selection with relaxed standards thus “level playing field” of candidates was not same. In the present matter, apart from relaxation in physical standards, a candidate of SC and ST category was required to obtain relaxed marks in the written examination to qualify for physical test. The subsequent appearance in the process of selection is with the relaxed standards of marks. The judgment in the case of Jitendra Kumar Singh (supra) allows reserve category candidates to migrate in the general/ open category only if they have taken concession in fee and relaxation of age, which is before initiation of process of selection. The respondents herein allowed relaxed standards during the process of selection thus 'level playing field' in this case cannot be said to be same.
The position of facts and law is similar in the case of Mangla Ram (supra) also. Therein also, it was categorically held that relaxation given to the reserve caste candidate is only of age and fee, thus they cannot be debarred to migrate to the general/open category. Therein, relaxed standards of the kind given in the present matter were not an issue for decision. The judgment in the case of Mangla Ram (supra) is more or less in reference to the judgment in the case of Jitendra Kumar Singh.
Learned counsel for petitioners, on the other hand, given reference of paras 4, 6, 11, 16, 17, 46, 47, 48, 49 and 77 in the case of Jitendra Kumar Singh, which are quoted hereunder -
4. The dispute between the petitioners and the respondents revolves around the issue of reservation of posts for Backward Classes, Scheduled Castes, Scheduled Tribes, Women Candidates and Sports-persons.
6. The procedure for selection included a Preliminary Written Test consisting of 300 marks. Candidates were required to secure at least 50% marks for being declared successful and entitled to participate in further test. This was followed by a Physical Test consisting of 100 marks. Again the candidate had to secure at least 50% or more marks. The marks obtained in the Preliminary Written Test and the Physical Test were, however, not to be included for determination of final merit. Candidates who qualified in the Preliminary Written Test and the Physical Test were required to appear in the Main Written Test consisting of 600 marks, having two papers i.e. General Hindi, General Knowledge and Mental Aptitude Test. Here again a candidate who secured 40% or more marks could only be declared successful. The written test consisted of two papers- (i) Hindi language and Essay consisting of 200 marks and (ii) General Knowledge and Mental Aptitude Test consisting of 400 marks. Thereafter, the candidate was to appear for interview which consisted of 75 marks. There were, however, no qualifying marks for the interview.
11.The Division Bench noticed the submissions made by the learned Counsel for the parties in detail and formulated seven issues which arose in the appeals. The issues were as under:
1. What is the extent of selection of a reserve category candidate against unreserved seats and in what circumstances he can be considered against unreserved vacancies besides reserve seats. The relevant factors, shades and nuisances for such adjustment also need to be identified, if any.
2. Whether Section 3(6) of Act of 1994 would apply where a candidate of reserve category though has availed relaxation meant for reserve category candidates namely fee and age but in all other respect, in the selection test, has completed with general category candidates and has secured more marks than the last selected general category candidate. In other words whether relaxation in age and fee would deprive and outsource him from competing against an unreserved seat in an open competition with general candidates.
3. Whether selection of reserve category candidates against reserved and unreserved constituting more than 50% is unconstitutional or otherwise contrary to law.
4. Whether reservation of seats for women is violative of Article 16 (2) of the Constitution of India.
5. Whether seats reserved for women can be carried forward in case suitable candidates are not available or the reservation being horizontal and applicable to all categories, the unfilled vacancies are to be filled by suitable male candidates.
6. Whether keeping 2% sports quota separate from the selection in question is illegal.
7. Whether selection in question is otherwise vitiated on account of any alleged irregularity or bungling.
16. The Division Bench has further held that the reserved category candidate can also compete against the unreserved seats under a criteria which is uniformly applicable to all the candidates. In case the selection criteria is lowered for the reserved category candidate, then such difference in standard or criteria would dis-entitle the reserved category candidate to compete in the general category. After analysing the law laid down by this Court in numerous judgments, the Division Bench has concluded that the conflicting claims of individuals under Article 16(1) and the preferential treatment given to a backward class under Article16 (4) of the Constitution has to be balanced, objectively.
17. The Division Bench then considered as to whether the concession or relaxation in the matter of fee and age would deprive a reserved candidate of his right to be considered against an unreserved seat. Can it be said that such a candidate is not a person who has competed with the general category in an open competition. It is noticed that under GOs (Government Orders) dated 11.04.1991, 19.12.1991 and 16.04.1992 and the clarification dated 19th October, 1992, it was provided that a reserved category candidate cannot compete with the open category candidate(s) after availing preferences which result in lowering of the prescribed standards. Such a candidate would only be considered against seat/post for the reserved category. However, after the promulgation of the 1994 Act and issuance of the Instructions dated 25th of March, 1994, the State Government has not treated relaxation in age and fee as relaxation in the standard of selection. Therefore, even if a candidate has availed concession in fee and or age limit, it cannot be treated to be a relaxation in standard of selection. Therefore, it would not deny a reserved category candidate selection in Open Competition with General Category candidates. Such concessions can be granted by the State under Section 8(1) of the Act.
46.It is not disputed before us that the standard of selection in the Preliminary Written Test and the Physical Test was common to all the candidates. In other words, the standard was not lowered in case of the candidates belonging to the reserved category. The Preliminary Written Test and the Physical Test were in the nature of qualifying examinations to appear in the Main Written Test. The marks obtained in the Preliminary Written Examination and the Physical Test were not to be included for determination of final merits. It was only candidates who qualified in the preliminary written test and the physical test that became eligible to appear in the main written test which consisted of 600 marks. As noticed earlier, this had two papers- General Hindi, General Knowledge and Mental Aptitude Test. A candidate who secured 40% or above would be declared successful in the written test. Thereafter, the candidates were to appear for interview of 75 marks. The final merit list would be prepared on the basis of merit secured in the main written test and the interview. Candidates appearing in the merit list, so prepared, would be declared selected.
47. It is common ground that more than 50000 candidates appeared in the preliminary written test. Upon declaration of the result on 22.9.2000, only 3,325 candidates were found successful. Thereafter, the physical test which was conducted from 29.10.2000 to 6.11.2000 reduced the successful candidates to 1454. It was these 1454 candidates who sat in the main written test held on 29.4.2001. Upon declaration of result, 1178 candidates were declared successful. The candidates who were successful in the written test were subjected to an interview between 18.6.2001 to 1.7.2001. The final result published on 6.7.2001 declared only 1006 candidates successful.
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. 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.
77. We have already noticed earlier that all the candidates irrespective of the category they belong to have been subjected to the uniform selection criteria. All of them have participated in the Preliminary Written Test and the Physical Test followed by the Main Written Test and the Interview. Such being the position, we are unable to accept the submissions of the learned Counsel for the petitioners/appellants that the reserved category candidates having availed relaxation of age are disqualified to be adjusted against the Open Category seats. It was perhaps to avoid any further confusion that the State of UP issued directions on 25.3.1994 to ensure compliance of the various provisions of the Act. Non-compliance by any Officer was in fact made punishable with imprisonment which may extend to period of three months.”
Out of the paras quoted above, paras 48 and 49 have been relied by both the parties. Perusal of the paras quoted above reveals that the reserve category candidates are entitled to concession and relaxation of age and fee to place them at par with general category candidates. The judgment in the case of Andhra Pradesh Public Service Commission (supra) is in reference to Article 335 of the Constitution of India and defined as to when such benefits can be given. In any case, para 77 of the aforesaid judgment clarifies the position in specific terms holding that the candidates, irrespective of the category, were subject to uniform selection criteria thus action of the respondents therein was held to be legal. This was more so when challenge to sections 3 and 8 of the Act of 1994 referred therein was not made so as the circular. In this case, selection is not with uniform selection criteria but with relaxed standards during the process of selection.
So far as the judgment in the case of Union of India versus Ramesh Ram & ors (supra) is concerned, issue for consideration was altogether different. It was a case where selection was made for various services with an option for preference. Many candidates of reserve category obtained more marks than the cut off for general category thus they were placed in the general list and not allowed to migrate in reserve list for preference of service. Hon'ble Apex Court held that a reserve category candidate can opt to remain in general list or to go back to the reserve list to seek preference of the service. It was keeping in mind that reserve category candidates having secured more marks and placed in the general list cannot be deprived to get preference of service in comparison to other reserve category candidate obtained less marks thus remained in the reserve list only. The facts and issue for consideration was thus altogether different. This is more so when it was in reference to particular rules applicable to those selections and the case in hand is not having the similar rules.
In the present matter, candidates of different categories were not subjected to uniform selection criteria. Following concessions and relaxations were given to the reserve category candidates during the process of selection which are summarised herein -
1. As per clause 5(iv) of the advertisement, relaxation in height and chest upto 5 cm has been given to the reserve category candidates if required number of candidates do not get through the normal physical standards.
2. As per clause 6(i) of the advertisement, candidates belonging to SC/ST needs to get minimum 36% marks and those belonging to tribal areas, only 30% marks in the written examination as against 40% marks for general/OBC category candidates.
3. As per clause 6(iv) of the advertisement, relaxation in standards at final stage is provided. For general category candidates, minimum percentage of marks is 45 but for reserved category candidates it is reduced to 40% and, for Saharia Adim caste/tribal sub-plan region, it is 35%.
All these concessions and relaxations were given during the process of selection thus 'level playing field' does not remain the same for all the candidates. In the facts and circumstances above, reserve category candidates taken benefit during the process of selection cannot seek migration to open category. It would be in violation of Article 16 (1) and Article 335 of the Constitution of India. The equality in the public employment has to be maintained. In case of difference of 'level playing field', if one is allowed to migrate than it would amount to making un-equals to be equal. This would be violative of Articles 14 and 16 of the Constitution of India. The relaxation in age and concession in fee do not change 'level playing field' as it is given prior to process of selection.
The reserve category candidates can migrate to open category if 'level playing field' during the process of selection remains the same. The concession in fee and relaxation of age is prior to the process of selection. Article 16 (1) of the Constitution provides for equality in public employment thus migration of reserve category candidates to open category can be permitted if there is a uniform criteria in the process of selection. If some relaxations are given to the reserve category candidates during process of selection then equality cannot be claimed at par with others so as to migrate. Sanctity of Article 16(1) of the Constitution has to be maintained.
Article 16(4) of the Constitution only provides for reservation to the backward class and not to the concession and relaxation during process of selection. A provision for that purpose exist in Article 335 of the Constitution thus the mandate of the Constitution is that once there is inequality in the process of selection, equality cannot be claimed for migration of reserve category candidates to open category.
The position aforesaid should not be confused in relaxation and concession in age and fee as those benefits are before start of the process of selection hence it does not create inequality or disturb 'level playing field' in the process of selection. Therefore, benefit of age relaxation and fee do not debar migration of reserve category candidates to open category if they have secured equal or more marks than open category candidates. The issue aforesaid needs to be viewed taking note of the observations and finding recorded by the Hon'ble Supreme Court in the case of Andhra Pradesh Public Service Commission (supra) wherein it was held that “.... the the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, times without number, to select candidates and/ or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor.” The ratio propounded aforesaid is to maintain constitutional mandate. The court should not take a view which destroys the basic framework of the constitution thus migration of reserve category candidates to open category should be allowed only if there is a uniform criteria in the process of selection and not otherwise.
In the case of Jitendra Kumar (supra) para 46, 48 and 77 deal with the first question framed in para 11 and it is the same as exist herein. In view of the judgment aforesaid, concession in fee and relaxation of age are not part of selection process, however, migration is permissible when in the process of selection all are given equal and similar treatment. The judgment referred above itself gives answer of the issue involved herein.
In view of the discussion made above, all these writ petitions are partly allowed with the following directions -
1. The circular dated 11.5.2011 would not be applicable to the present selection in view of the judgment in the case of K.Manjusree (supra), wherein, it was held that rules of game cannot be changed in the midst of selection thus respondents are directed to make appointment without applying circular dated 11.5.2011 in the present matter as initiation of recruitment is prior to the circular dated 11.5.2011 so as the advertisement. The migration of reserve category candidates to open/ general category can be permitted as per earlier circular dated 24.6.2008 and Standing Order applicable to present selection and not as per circular issued on 11.5.2011 as it is much subsequent to the advertisement and not given retrospective effect.
2. The circular dated 11.5.2011 provides for migration of reserve category candidates to open/ general category in the case where the candidates have taken special concession. The aforesaid circular needs to be given proper interpretation. It would be applicable in the case where reserve category candidates have taken benefit of concession of fee and relaxation in age. In those cases, one would be allowed to migrate to open/general category if obtained equal or more marks to the last candidate in open/general category. In case of any other concession or relaxation during the process of selection by reserve category candidate, he would not be allowed to migrate to open/general category as the 'level playing field' during the course of selection does not remain the same. Thus, respondents are directed to implement circular dated 11.5.2011 in the light of the directions given above but it would not be applicable to this selection as indicated in the first para of directions.
This disposes of the stay applications also.
(MN BHANDARI), J.
bnsharma
All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma)
PS-cum-JW
Source : http://rhccasestatus.raj.nic.in/smsrhcb/rhbcis/judfile.asp?ID=CW&nID=15152&yID=2011&doj=4/27/2012
http://rhccasestatus.raj.nic.in/smsrhcb/rhbcis/jtextfile.asp?ID=CW&nID=15152&yID=2011&doj=4/27/2012
