# • [2017) 8 S.C.R. 951 GAURAV PRADHAN & ORS v. STATE OF RAJASTHAN & ORS

- **Citation:** [2017] 8 S.C.R. 951
- **Court:** Supreme Court of India
- **Decided:** 2017-08-18
- **Case number:** Civil Appeal No.8351 of2017
- **Bench:** A.K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2017-8-s-c-r-951-gaurav-pradhan-ors-v-state-of-rajasthan-ors-32292
- **Pages:** 31

## Headnote

A
B
Service law - Recruitment - Migration of reserved category
candidates against general category vacancies - The Rajasthan
Police Subordinate Service Rules, 1989 - r.7 -Advertisements in
C
2010 inviting applications for selection on posts of Constables and
Sub-Inspector of Police - During process of selection, the State
Government issued a circular dated 11.05.2011 providing that
candidates of SC/ST/BC irrespective of whether they have availed
of any concession including relaxation in age, shall be migrated
against general category vacancies if they secured more marks than
D
the last candidate of general category - Writ petitions filed by general
category candidates challenging the said circular - Held: Circular
·dated 11.05.2011 was issued by the State during the process of
recruitment - However, the recruitment process in the present case
had begun prior to the issuance of said circular, when circular dated
E
24.06.2008 ,was in force which provided that reserved category
candidates who have taken concession like age relaxation were
not entitled to be migrated into the general category - Hence, the
subsequent circular dated 11.05.2011 cannot be applied in the
present recruitment - Thus, candidates belonging to SC/ST/BC who
had taken relaxation of age were not entitled to be migrated to the
F
unreserved vacancies - However, the State·of Rajasthan has
migrated such candidates against the unreserved vacancies which
resulted in displacement of a large number of candidates who were
entitled to be selected against the unreserved category vacancies -
Further, such reserved category candidates have been working for
G
more than last jive years -
In view of the fact, that such candidates
were not at fault in any manner, they are allow.ed to continue in
.respective posts - While, the unreserved candidates who could not
be appointed due to the above illegal migration are also entitled
for appointment as per their merit - Therefore, directions issued for
adjusting the equity between the parties - Equity.
H
951
952
SUPREME COURT REPORTS
[2017) 8 S.C.R.
A
Allowing the appeals, the Court
HELD: 1.1 The State had come up with circular dated
11.05.2011 which was issued during process of recruitment. It
clearly provided that candidates belonging to reserved category
irrespective of having availed any of the special concessions
B secure bench mark prescribed for general/open category
candidates if selected, such a reserved category candidate shall
be counted against unreserved/open category candidates. [Para
30) [968-H; 969-A-BJ
1.2 Further, the State of Rajasthan has issued circular dated
c 26.07.2017 which was the reiteration of earlier position as was
provided by circular dated 24.06.2008 which provided that
candidates belonging to reserved category who have obtained
concession of age are not eligible to be migrated to the
unreserved vacancies • Thus, the position is now well accepted
even by State of Rajasthan that those candidates belonging to
D SC/ST/BC who have obtained concession of age are not eligible
to be migrated to the unreserved vacancies. Circular dated
24.06.2008 being very much in existence holds the field and the
State of Rajasthan was obliged to not migrate those SC/ST/BC
category candidates who are in unreserved category, who have
E.
taken concession of age. [Para 39) [976-D[
Deepa E. V. vs. Union of India. 2017 (5) SCALE 424 -
held applicable.
1.3 Rule 7(1) of The Rajasthan Police Subordinate Service
Rules, 1989 expressly provides that "reservation of vacancies
F
for the Scheduled Castes and the Scheduled Tribes shall be in
accordance with the orders of the Government for such reservation
in (orce at the time of recruitment i.e. bv direct recruitment and bv
promotion". The circular of the Government which was in force at
the time of recruitment shall be treated to be in force for the
G purpose of reservation. In the present case, when the recruitment
was commenced by the advertisement dated 7.10.2010 and
25.10.2010 at tha

## Text

_Characters 0–39,871 of 67,649. This is a partial read: ask again with offset=39871 for what follows._

•
[2017) 8 S.C.R. 951
GAURAV PRADHAN & ORS.
v.
STATE OF RAJASTHAN & ORS.
(Civil Appeal No.8351 of2017)
AUGUST 18, 2017
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]
A
B
Service law - Recruitment - Migration of reserved category
candidates against general category vacancies - The Rajasthan
Police Subordinate Service Rules, 1989 - r.7 -Advertisements in
C
2010 inviting applications for selection on posts of Constables and
Sub-Inspector of Police - During process of selection, the State
Government issued a circular dated 11.05.2011 providing that
candidates of SC/ST/BC irrespective of whether they have availed
of any concession including relaxation in age, shall be migrated
against general category vacancies if they secured more marks than
D
the last candidate of general category - Writ petitions filed by general
category candidates challenging the said circular - Held: Circular
·dated 11.05.2011 was issued by the State during the process of
recruitment - However, the recruitment process in the present case
had begun prior to the issuance of said circular, when circular dated
E
24.06.2008 ,was in force which provided that reserved category
candidates who have taken concession like age relaxation were
not entitled to be migrated into the general category - Hence, the
subsequent circular dated 11.05.2011 cannot be applied in the
present recruitment - Thus, candidates belonging to SC/ST/BC who
had taken relaxation of age were not entitled to be migrated to the
F
unreserved vacancies - However, the State·of Rajasthan has
migrated such candidates against the unreserved vacancies which
resulted in displacement of a large number of candidates who were
entitled to be selected against the unreserved category vacancies -
Further, such reserved category candidates have been working for
G
more than last jive years -
In view of the fact, that such candidates
were not at fault in any manner, they are allow.ed to continue in
.respective posts - While, the unreserved candidates who could not
be appointed due to the above illegal migration are also entitled
for appointment as per their merit - Therefore, directions issued for
adjusting the equity between the parties - Equity.
H
951
952
SUPREME COURT REPORTS
[2017) 8 S.C.R.
A
Allowing the appeals, the Court
HELD: 1.1 The State had come up with circular dated
11.05.2011 which was issued during process of recruitment. It
clearly provided that candidates belonging to reserved category
irrespective of having availed any of the special concessions
B secure bench mark prescribed for general/open category
candidates if selected, such a reserved category candidate shall
be counted against unreserved/open category candidates. [Para
30) [968-H; 969-A-BJ
1.2 Further, the State of Rajasthan has issued circular dated
c 26.07.2017 which was the reiteration of earlier position as was
provided by circular dated 24.06.2008 which provided that
candidates belonging to reserved category who have obtained
concession of age are not eligible to be migrated to the
unreserved vacancies • Thus, the position is now well accepted
even by State of Rajasthan that those candidates belonging to
D SC/ST/BC who have obtained concession of age are not eligible
to be migrated to the unreserved vacancies. Circular dated
24.06.2008 being very much in existence holds the field and the
State of Rajasthan was obliged to not migrate those SC/ST/BC
category candidates who are in unreserved category, who have
E.
taken concession of age. [Para 39) [976-D[
Deepa E. V. vs. Union of India. 2017 (5) SCALE 424 -
held applicable.
1.3 Rule 7(1) of The Rajasthan Police Subordinate Service
Rules, 1989 expressly provides that "reservation of vacancies
F
for the Scheduled Castes and the Scheduled Tribes shall be in
accordance with the orders of the Government for such reservation
in (orce at the time of recruitment i.e. bv direct recruitment and bv
promotion". The circular of the Government which was in force at
the time of recruitment shall be treated to be in force for the
G purpose of reservation. In the present case, when the recruitment
was commenced by the advertisement dated 7.10.2010 and
25.10.2010 at that time only circular dated 24.06.2008 was in force,
hence, subsequent circular dated 11.05.2011 cannot be applied
in the present recruitment. (Para 46) (979-F-GJ
H
.!,
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
953
1.4 The candidates belonging to SC/ST/BC who had taken A
relaxation of age were not entitled to be migrated to the
unreserved vacancies. However, the State of Rajasthan had
migrated such candidates who have taken concession of age
against the unreserved vacancies which resulted displacement
of a large number of candidates who were entitled. to be selected B
against the unreserved category vacancies. The candidates
·belonging to 1,1nreserved category who could not be appointed
due to migration of candidates belonging to SC/ST/BC were clearly
entitled for appointment which was denied to them on the basis
of the above illegal interpretation put by the State. However,
notice is also taken of the fact that the reserved category C
candidates who had taken benefit of age relaxation and were
migrated on the unreserved category candidates have been
working for more than last five years. The reserved category
candidates who were appointed on migration against unreserved
vacancies are not at fault in any manner. Hence, the SC/ST/BC D
candidates who have been so migrated in reserved vacancies
and appointed should not be displaced and allowed to continue in
respective posts. On the other hand, the unreserved candidates
who could not be appointed due to the above illegal migration
are also entitled for appointment as per their merit. [Para 48)
[980-D-G)
E
1.5 For adjusting the equity between the parties, the
following directions are issued:
(1) The writ petitioners/appellants who as per their merit
were entitled to be appointed against unreserved vacancies which
vacancies were filled up by migration of SC/ST/BC candidates who
F
had taken relaxation of age should be given appointment on the
posts. The State is directed to work out and issue appropriate
orders for appointment of such candidates who were as per their
merit belonging to general category candidates entitled for
appointment which exercise shall be completed within three G
months from the date copy of this order is produced.
(2) The State shall make appointments against the existing
vacancies, if available, and in the event there are no vacancies
available for the above candidates, the supernumerary posts may
be created for adjustment of the appellants which supernumerary H
954
SUPREME COURT REPORTS
[2017) 8 S.C.R.
A posts may be terminated as and when vacancies come into
B
c
D
E
F
G
H
existence. [Para 49) [981-A-D)
Jitendra Kumar Singh v. State of U.P. 2010 (3) SCC
119 : (2010) 1 SCR 325 - distinguished.
Vikas Sankhala and others v. Vikas Kumar Agarwal and
others (2017) 1SCC350: (2016) 7 SCR 639; Chandra
Bhan Yadav v. State of Rajasthan (2009) 2 WLC (Raj.)
454 - held inapplicable.
K. Manjusree v. State of Andhra Pradesh, 2008 (3) SCC
512 : [2008) 2 SCR 1025 ; Tej Prakash Pathak and
others vs. Rajasthan High Court and others 2013 (4)
SCC 540 ; Indra Sawhney and others vs. Union of
India and others 1997 Suppl. SCC 217 : [19991 5
Suppl. SCR 229 ; Post Graduate Institute of Medical
Education & Research, Chandigarh and others v. K.L.
Narasimhan and another 1997 (6) SCC 283; Mangala
Ram Bishnoi & Others v. State of UP (2010) 3 SCC 119
- referred to.
Case Law Reference
(2008( 2 SCR 1025
referred to
Para 7
(2013) 4 sec 540
referred to
Para7
[1999( 5 Suppl. SCR 229
referred to
Para 19
(2009) 2 WLC (Raj.) 454
held inapplicable
Para 19
(2010) 3 sec 119
referred to
Para 20
(1997) 6 sec 283
referred to
Para 21
2017 (5) SCALE 424
held applicable
Para 36
[2010) 1 SCR 325
distinguished
Para 37
[2016) 7 SCR 639
held inapplicable
Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal No.8351
of2017.
. --··-
- --·· -----·~----~-
-
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
955 .
From the final Judgment and Order dated 16.01.2014 passed by A
the High Court of Judicature for Rajasthan at Jaipur Bench in D.B. Civil
SP.ecial Appeal (Writ) No.769/2012
.
~
WITH
Civil Appeal No.7656 of2017
B
and
Civil Appeal No.5305 of2015.
Sushi! Kumar Jain, Sr. Adv., Rishabh Sancheti, Ms. Padma Priya,
Dhruv Sharma, Ms. Parijata Bhardwaj, Jaiwant Patankar, T. Mahipal,
Puneet Jain, Ms. Christi Jain, Abhinav Gupta, Ms. Priyal Jain, Ms.
C
.Pratibha Jain, Advs. for the Appellants.
K.L. Janjani, Pankaj Kumar Singh, Ms. Ruchi Kohli, Umang
Shankar, Ajay Choudhary, Jasmeet Singh, Ruhsheet J. Saluja, Naman
. Joshi, Nitesh Shrivastava, Sahil P., Pranaya Kumar Mohapatra and Milind
Kumar, Advs.for the Respondents.
D
The Judgment of the Court was delivered by
ASH OK BHUSHAN, J. I. In these appeals appellants challenge
the common judgment dated 16.01.2014 of the Rajasthan High Court
deciding a batch of Special Appeals which arose out of judgment of
learned Single Judge dated 27.04.2012 delivered in SB Civil Writ Petition
E
No.15152 of 2011 and other connected matters and judgment dated
08.11.2013 in SB Civil Writ Petition No.4811 of2013 and other connected
matters. The judgment dated 27.04.2012 pertains to selection to various
posts of constables whereas judgment dated 08.11.2013 pertains to
selection on the post of Sub-Inspector of P-Olice. The judgment dated
F
. 08.11.2013 was delivered following the earlier judgment dated 27'11 April,
2012. A large number of Special Appeals were filed against the aforesaid
two judgments which were decided by the Division Bench by a common
judgment dated 16.01.2004 which judgment is subject matter of these
appeals.
G
2. Brief facts of the case which are necessary to be noted for
deciding these appeals are:
The Rajasthan Police Subordinate Service Rules, 1989 has been
framed by the State ofRajasthan for recruitment on various posts in the·
H
.956
SUPREME COURT REPORTS
(2017] 8 S.C.R.
A Police Establishment. Part lII of the Rules provides for recruitment and
Rule 7 provides reservation of vacancies for the Scheduled Casts and
the Scheduled Tribes. The State Government had from time to time
issued various orders/circulars providing for reservation as well as
methodology for giving effect to the reservation. Circulars dated
B 17.06.1996, 04.03.2002 and 24.06.2008 were issued by the State
Government providing for reservation.
3. The Rajasthan Public Service Commission issued an
advertisement dated 14.l 0.20 lO inviting applications for selection on
various posts of constables. On 25.10.2010 another advertisement was
issued by the Rajasthan Public Service Commission for selection on the
C post of Sub Inspector of Police. The selection process for the posts of
constables as well as post of Sub Inspector of Police comprised of the
different stages. During process of selection, the State Government
issued a circular dated 11.05.2011 providing that candidates of BC/SBC/
SC/ST irrespective of whether they have availed of any concession
D including relaxation in age .shall be migrated against open category
vacancies if they have secured more marks than the last candidate of
open category. Select list of constables was issued on 01.07.2011 whereas
result of Sub Inspector of Police was issued on 25.02.2013. Various writ
petitions were filed by the general category candidates where they have
questioned the circular dated 11.05.2011 and preparation of select list
E accordingly. The case of the general category candidates was that those
reserved category candidates who have taken concession of relaxation
of age in competition for post of constable/SI of Police cannot be migrated
to general category vacancies. Learned Single Judge decided Special
Writ Petitions vi de judgment dated 27.12.2012 taking view that circular
F dated 11.05.2011 is not applicable since the recruitment process had
began prior to circular 11.05.201 l. lt was held that migration ofreserved
category candidates to open/general category can be permitted as per
earlier circular dated 24.06.2008. With regard to circular dated 11.05.2011,
it was held that the said circular needs to be given proper interpretation.
Learned Single Judge held that only those who have taken benefit of
G concession of fee and not the relaxation in age during the process of
selection would be allowed to migrate to open/general category if obtained
equal or more marks to the last candidate in open/general category. As
noted above, other group of writ petitions was decided by the Single
Judge vide judgment dated 08.11.2013 following the judgment dated
H 27.04.2012.
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
957
[ASHOK BHUSHAN, J.]
4. The Division Bench disposed of all the Special Appeals by A
modifying the judgment oflearned Single Judge dated 27.04.2012 and
08.11.2013 to the extent that the relaxation in age having been availed
by candidates of reserved category who find place in the select list on
dint of merit of general/open category vacancies, deserve to be migrated
against general/open category vacancies. However, candidates availing B
special relaxation/concessions while participating in competitive test/
process of selection, if find place in select/merit list of general/open
category vacancies, they are not eligible to be migrated against open/
general category vacancies. Aggrieved by the aforesaid judgment all
these appeals have been filed.
5. We have heard learned counsel for the appellants and learned C
counsel appearing for the State ofRajasthan as well as learned counsel
appearing for private respondents.
6. Shri Sushi! Kumar Jain, learned senior counsel for the appellants
in support of the appeals contends that the reserved category candidates
who had participated in the selection after obtaining the benefit of D
relaxation in age cannot be allowed to be treated in the open/general
category and as per the Government circular dated 24.06.2008 such
candidates have to be treated in the reserved category candidates. He
submits that circular dated 11.05.2011 reversing the earlier provision for
migration in the general/open category was not applicable in the present
E
case since the advertisements were issued much before the aforesaid
circular and the recruitment process had begun. It is submitted that the
judgment relied on by the Division Bench in coming to the conclusion
that relaxation in age does not prohibit the reserved category candidates
from migrating the open/general category quota are not applicable in the
facts of the present case. Shri Jain submits that the issue raised in these
F
appeals is fully covered by the judgment of this Court dated 61h April,
2017 in C.A.No.3609 of 2017, Deepa E.V. vs. Union of India and
·ors. It is submitted that in view of the judgment of this Court in Deepa
E. V., the appeals deserve to be allowed setting aside the judgment of the
Division Bench and restoring that oflearned Single Judge.
G
7. Shri Ajay Choudhary, learned counsel for the State ofRajasthan
has supported the judgment of the Division Bench. He contends that
relaxation of age does not debar the reserved category candidates in
migrating to the general/open category quota, in the event, they have
H
958
SUPREME COURT REPORTS
[2017] 8 S.C.R.
· A secured more marks to last general category candidate. It is submitted
that circular dated 11.05.2011 is fully applicable in this recruitment. He
further submits that judgment of this Court in K. Manjusree vs. State of
Andhra Pradesh, 2008(3) SCC 512, has been referred to a larger
bench of this Court in Tej Prakash Pathak and others vs. Rajasthan
B High Court and others, 2013(4) SCC 540. Hence, the jugement of
this Court in K. Manjusree need not be relied on.
8. Shri Choudhary further contends that relaxation in age being
permissible in accordance with the Rajasthan Police Subordinate Service
Rules, 1989 to the reserved category candidates, they are entitled to be
counted in the general/open category, in the event, they have secured
C more marks to the last general category candidate. It is submitted that
appointment letters have been issued to the reserved category candidates
in accordance with the merit list as per circular dated 11.05.2011.
9. Learned counsel appearing for respondent Nos.6 to 9 supported
. D the judgment of the Division Bench. He further submitted that all the
private respondents have been appointed on the respective posts and
they are working for the last about four years. He further submits that
even circular dated 24.06.2008 recognises that candidates belonging to
reserved category shall be selected if they have obtained more than
general category even if it leads to selection of more candidates than
E that provided by virtue of reservation. He has relied on latter part of
paragraph 6.2 of circular dated 24.06.2008.
10. Learned counsel for the appellants has also brought on record
circular dated 26.07 .2017 issued by the Government ofRajasthan in the
light of the judgment of this Court in Deepa E. V.(supra). The State
F Government by circular dated 26.07.2017 has reiterated that if a candidate
1
belonging to SC/ST/BC has not availed of any of the special concessions
'
such as in age-limit, marks, physical fitness etc. in the recruitment process,
\
which are available to the candidates belonging to these categories, except
1
the concession of fees, and secure mure marks than the marks obtained
1
by the last unreserved category candidate who is selected, such a
G candidate belong to the SC/ST /BC shall be counted against the unreserved
category vacancies and not the vacancies reserved for the SC/ST/BC.
H
11. Learned counsel for the appellants has further submitted that
there are large number of vacancies still lying vacant on which the
appellants can be appointed. They submit that the appellants were denied
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
959
[ASHOK BHUSHAN, J.]
the appointment illegally whereas they were fully entitled for appointment.
A
Hence, this Court may direct the State to appoint the appellants on existing
vacancies. Learned counsel for the State has, however, refuted the
submission of the appellants regarding existence of vacancies.
12. We have considered the submissions of the parties and perused
the records. From the submissions of the learned counsel for the parties B
and materials on record the following issues arise for consideration in
these appeals:
(1) Whether the reserved category candidates who had taken
benefit of age relaxation in the selection in question and have
obtained marks equal or more to last general category candidate c
would be treated in the general/open category candidates or ought
to have been confined in the reserved category candidates.
(2) Whether the circular dated 11.05.2011 issued by the State
Government changing the criteria for migrating reserved category
candidates into general category candidates can be applied in D
respect to the selection which had already began on issuance of
advertisements dated 14.10.2010 and 25.10.2010.
13. The statutory Rules have been framed, namely, the Rajasthan
Police Subordinate Service Rules, 1989. The Rules provide for composition
and strength of the service, methods of recruitment, procedure for direct
E
recruitment and other relevant matters. Rule 7 provides for reservation
of vacancies for the Scheduled Castes and the Scheduled Tribes. Rule 7
which is relevant for this case is as follows:
"7. Reservation of vacancies for the Scheduled Cases and
the Scheduled Tribes- (I) Reservation of vacancies for the
F
Scheduled Castes and the Scheduled Tribes shall be in
accordance with the orders of the Government for such
reservation in force at the time of recruitment i.e. by direct
recruitment and by promotion.
14. As per Rule 7( 1) orders were issued by the State ofRajasthan
from time to time providing for reservations and matters connecting
therewith. In the present case we are only concerned with the question
G
H
960
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A of migration ofreserved category candidate into general/open category
candidate. Hence, it is sufficient to note the relevant orders issued by
the Government in the above context. The 1989 Rules do not contain
any provision regarding migration of reserved category candidates into
general/open category candidates, but the Government orders which
B were referable to Rule 7( I) do provide the criteria and basis for such
migration. The circular dated 24.06.2008 was the last circular on the
subject prior to initiation ofrecruitment process. Para 6.2 of the circular
dated 24.06.2008 which has also been extracted by the Division Bench
of the High Court is to the following effect:
c
D
E
F
G
H
"Circular dated 24.06.2008
6.2 Jn the state, members of the SC/STIOBC can compete
against non-reserved vacancies and be counted against them,
in case they have not taken any concession (like that of age,
etc.) payment of examination fee in case of direct recruitment. "
15. lt is also relevant to notice that during the process of selection,
the Government issued circular on 11.05.2011 in supersession of earlier
circular dated 04.03.2002. Before we notice circular dated 11.05.2011,
it is relevant to note circular dated 04.03.2002 which is to the following
effect:
"Circular dated 04.03.2002
(a) If a candidate belonging to OBC!SCIST has not availed
of any of the special concessions which are available to the
candidates belonging to these categories except the
concession of fees, and he secures more marks than the marks
obtained by the last general category candidate who is
selected, such a candidate belonging to OBC/SCIST shall be
counted against the general category vacancies and not the
vacancies reserved for the OBCISCIST. as the case may be.
(b) If any SC/ST candidate gets selected against the general
category vacancies on the basis of his merit without availing
of any of the special concessions which are available to the
candidates belonging to these categories, except the
concession of fees,such a SC/ST candidate, as the case may
be, for all further service matters including further promotions
and all the benefits which are admissible to the other SC/ST
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
961
[ASHOK BHUSHAN, J.]
persons under the various .service rules/ Government A
instructions shall be admissible to them. "
16. Now we come to circular dated 11.05.2011 by which the
earlier methodology of treating the reserved category candidates into
general category candidates has been fully changed. Circular dated
11.05.2011 provides:
B
"Circular dated 11.05.2011
In super-session of this department circular of even
number dated 04.03.2002 dn the above-mentioned subject,
the matter has been examined in consultation with Law
Department, the jolt owing clarifications are here by issued C
for the guidance of all Appointing Authorities:-
(a) If a candidate belonging to BC/SBC/SC/ST irrespective
of whether he has availed of or not any of the special
concessions which are available to the candidate belonging
to these categories and he secures more marks than the marks D
obtained by the last unreserved category candidate who is
selected, such a candidate belonging to BC/SBC/SC/ST shall
· be counted against the unreserved category vacancies and
not the vacancies reserved for the BC/SBC/SC/ST. as the case
may be.
E
"
17. The Government orders were issued by the State ofRajasthan
as contemplated by Rule 7( 1) of 1989 Rules which were in operation at
F
the time of initiation of process ofrecruitment by Government orders
dated 14.10.2010 and 25.10.2010. The Government orders provided that
reserved category candidate who have taken any concession like age
relaxation was not entitled to be migrated into the general/open category
and only those reserved category candidates who have not taken any
concession apart from concession of fee was entitled to be migrated G
into general/open category. The Division Bench of the High Court has
after noticing all the relevant circulars on the subject has itself recorded
·a finding to the above effect. It is relevant to refer to the aforesaid
finding which is to the following effect:
·
H
962
A
B
c
D
E
F
G
SUPREME COURT REPORTS
(2017] 8 S.C.R.
"Circulars issued by State Government from time to time,
are nothing more than guidelines issued for being followed
by recruiting agencies/competent authority while filling up
the vacancies of direct recruitment/promotion in service of
the Government.
In later circular of 2008, the State Government further
made it clear that members ofSC/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.
This consistency was followed by State Government in
its standing order No.512010 dated 07.10.2010 followed for
recruitment to the post of Constable notified vide advertisement
dated 2511112010.
The State Government through out from June, 1996
consistently in its later circulars issued in March, 2002. June,
2008, October, 2010 (Standing Order No.512010) as per its
policy decision directed that the candidates belonging to SCI
STIOBC can compete against non-reserved vacancies provided
they have not availed special concessions (like age etc.) other
than examination fees.
However, there was a deviation in its later circular dated
1110512011 issued in the form of clarification laying down
guidelines for the recruiting agency/authorities in supersession
of its earlier circulars/directions and the State Government
was of the view that candidates belonging to reserved category
(BC/SBC/SC/ST) irrespective of having availed any of the
special concessions (including of age) etc. which are available
to the candidates belonging to the reserved categories, secure
bench mark prescribed for general/open category candidates
if selected, such a reserved category SC/ST/SBC candidate
shall be counted against unreserved/open category seats. "
18. A perusal ofimpugned judgment of the Ra jasthan High Court
indicates that the Division Bench relying on following has formed its
opinion:
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
963
[ASHOK BHUSHAN, J.]
"(a) Earlier judgments of Rajasthan High Court, namely, A
Chandra Bhan Yadav vs. State of Rajasthan, (2009) 2 WLC
(Raj.) 454 and judgment of Single Judge in Mangala Ram
Bishnoi & others vs. State, 2011 (1) WLC 148;
(b) Judgment of this Court in Jitendra Kumar Singh vs.
State of U.P., 2010 (3) SCC 119; and
B
(c) Circular dated 11.05.2011 of the State Government."
19. Judgment of learned Single Judge in Chandra Bhan Yadav
(supra) was a judgment where circulars issued by the State Government
which are referable to Rule 7(1) of 1989 Rules relevant in the context
of selection in question, were neither referred to nor considered. The C
learned Single Judge only relied on the judgments laying down that
reserved category candidates selected in open competition shall not be
counted in reserved quota and they shall be treated as open category
candidates. There cannot be any dispute with the general proposition
which stands well settled as laid down by nine Judge Bench in Indra D
Sawhney and others vs. Union of India and others, 1997 Suppl.
SCC 217. This Court in paragraph 811 laid down the following:
"811. In this connection it is well to remember that the
reservations under Article 16(4) do not operate like a
communal reservation. It may well happen that some members E
belonging to, say, _Scheduled Castes get selected in the open
competition field on the basis qf their own merit; they will not
be counted against the quota reserved for Scheduled Castes;
they will be treated as open competition candidates. "
20. The another judgment oflearned Single Judge relied on in the
F
impugned judgment in Mangala Ram Bislmoi (supra) was a judgment
where the learned Single Judge has placed heavy reliance on the judgment
of Jitendra Kumar Singh (supra). The circular of. the State
Government dated 04 .03 .2002 as applicable was considered in paragraph
34. But learned Single Judge, held that in view of the law laid down by
this Court in Jitendra Kumar Singh (supra) circular dated 4.3.2002
G
does not remain operative. We thus need to look into the judgment of
this Court in Jitendra Kumar Singh '.s case (supra). The Division B~:nch
further held that since the judgment of Mangala Ram Bislmoi(.supra)
which was judge made law was holding field, the State Government
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A was required to permit migration of the reserved category candidates
having obtained age relaxation into general category candidates and no
exception can be taken in following the circular dated 11.05.2011.
21. As noted above, nine Judge Constitution Bench had laid down
that if the members belonging to the reserved category get selected in
B the open competition field on the basis of their own merit, they will not
be counted against the quota reserved for Scheduled Casts and they
would be treated as open competition candidates. In Post Graduate
J11stitute of Medical Educatio11 & Research, Cha11digarh a11d others
vs. K.L. Narasimha11 a11d a11other, 1997(6) SCC 283, a three Judge
Bench of this Court in paragraph 5 has laid down the following:
c
D
"5 .... lt is settled law that if a Dalit or Tribe candidate gets
selected for admission to a course or appointment to a post
on the basis of merit as general candidate, he should not be
treated as reserved candidate. Only one who does get
admission or appointment by virtue of relaxation of eligibility
criteria should be treated as reserved candidate. "
22. Article 16 sub-clause (4) of the Constitution of India is an
enabling provision empowering the State for 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
E represented in the services under the State. The orders issued by the
State Government from time to time were the orders contemplated by
Article 16 sub-clause (4). lt is well settled by nine Judge Constitution
Bench that reservation in favour of backward classes can be provided
by a State Government by an executive order also.
F
23. The reservation being the enabling provision the manner and
extent to which reservation is provided has to be spelled from the orders
issued by the Government from time to time. In the present case there is
no issue pertaining to the extent of reservation provided by the State
Government to the SC, ST and OBC candidates. The issue involved in
G the present case is as to whether the reserved category candidates can
be allowed to be migrated into general category candidates. The
reservation is wide enough to include exemption, concession etc. The
exemption, concession etc. are allowable to the reserved category
candidates to effectuate and to give effect to the object behind Article
H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
965
[ASHOK BHUSHAN, J.]
16 sub-clause (4) of the Constitution of India. The State is fully A
empowered to lay down the criteria for grant of exemption, concession
and reservation and the manner and methodology to effectuate such
reservation. The migration of reserved candidates into general category
candidates is also part and parcel of larger concept of reservation and
the Government orders issued on 17.06.1996, 04.03.2002 and 24.06.2008
B
were the Government orders providing for methodology for migration of
reserved category candidates into general category candidates which
was well within the power of State. Neither before us nor even before
the High Court the aforesaid Government orders, last being 24.06.2008,
were under challenge. As noted above, the High Court itself has returned
·a finding that earlier methodology of providing for migration of reserved
C
category candidates into general category candidates was reversed by
order dated 11.05.2011 by which despite taking any special concession
reserved category candidates could be migrated into general category
candidates.
24. Now we come to the judgment of this Court in Jitendra Kumar D
Singh vs. State of U.P., 2010 (3) SCC 119. In the above case also the
question which had come up for consideration was as to whether reserved
category candidates who have taken the age relaxation and secured
more marks to the last candidate in the general category candidate should
be treated to be in general category. In para 23 the issue which was
involved in the case was noted in the following words:
"23. We have heard the learned counsel for the parties. Mr
L.N. Rao, learned Senior Counsel appearing on behalf of
E
the appellants submitted that the cardinal issue raised in these
appeals is whether the reserved category candidates who ~ad
taken the benefit of age or fee relaxation, are entitled to be
F
counted as general category candidates. According to the
learned Senior Counsel, the Division Bench has erred in law
in concluding that relaxation in age and fee cannot be treated
to be relaxation in standard of selection and shall not deny a
reserved category candidates selection in open competition
G
with general category candidate. "
25. This Court had considered the above issue in the context of
U.P. Public Services (Reservation for Scheduled Casts, Scheduled Tribes
and Other Backward Classes) Act, 1994. Section 3 of the Act provided
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A for reservation in favour of ST, SC and other backward classes. Section
3 sub-Section ( 6) of 1994 Act provided as following :
B
c
D
"Section 3. Reservation in favour of Scheduled Castes,
Scheduled Tribes and other Backward Classes.-
(1) In public services and posts, there shall be reserved at the
stage of direct recruitment, the following percentages of
vacancies to which recruitments are to be made in accordance
with the roster referred to in sub-section (5) in favour of the
persons belonging to Scheduled Castes, Scheduled Tribes and
Other Backward Classes of citizens, -
(a) in the case of Scheduled Castes
(b) In the case of Scheduled Tribes
(c) in the case of Other Backward
Classes of citizens
twenty-one
per cent;
two per cent;
twenty-seven
per cent;
Provided that the reservation under clause (c) shall not
apply to the category of Other Backward Classes of citizens
E
specified in Schedule II.
F
(6) If a person belonging to any of the categories
G
H
mentioned in sub-section (1) gets selected on the basis of merit
in an open competition with general candidates, he shall not
be adjusted against the vacancies reserved for such category
under sub-section(l).
26. The State of U.P. issued instructions dated 25.3.1994 which
have been extracted in paragraph 72 of the judgment. Para 72 stated
below:
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
967
[ASHOK BHUSHAN, J.]
"72. Soon after the enforcement of the 1994 Act the A
Government issued Instructions dated 25-3-1994 on the
subject of reservation for Scheduled Castes, Scheduled Tribes
and other backward groups in the Uttar Pradesh Public
Services. These instructions, inter ali<;i, provide as under:
"4. If any person belonging to reserved categories is
B
selected on the basis of merits in open competition along with
general category candidates, then he will not be adjusted
towards reserved category, that is, he shall be deemed to have
been adjusted against the unreserved vacancies. It shall be
immaterial that he has availed any facility or relaxation (like
relaxation in age-limit) available to reserved category. "
C
From the above it becomes quite apparent that the relaxation
in age-limit is merely to enable the reserved category
. candidate to compete with the general category candidate,
all other things being equal. The State has not treated the D
relaxation in age and fee as relaxation in the standard for
selection, based on the merit of the candidate in the selection
test i.e. main written test followed by interview. Therefore,
such relaxations cannot deprive a reserved category candidate
of the right to be considered as a general category candidate
on the basis of merit in the competitive examination. Subsection (2) of Section 8 further provides that government
orders in force on the commencement of the Act in respect of
the concessions and relaxations including relaxation in upper
age-limit which are not inconsistent with the Act continue to
be applicable till they are modified or revoked.,,
27. The last line of the the Government instructions dated
25.03.1994 as quoted above provided "It shall be immaterial that he
has availed anv (Qcility or relaxation Oike relaxation in age-limit)
·available to reserved category".
E
F
28. The provisions of Section 3 sub-Section (6) of 1994 Act read
G
with instructions dated 25.3.1994 clearly meant that grant of age relaxation
to reserved category candidate does not militate against him being treated
as general category candidate if he has obtained more marks than the
last general category candidate. This Court in the above case has also
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A made general observation specially in para 75 which is to the following
effect:
B
c
D
E
F
G
H
"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 irifringement of Article 16(1) of the Constitution
of India. These concessions are provisions pertaining to the
eligibility of a candidate to appear in the competitive
examination. At the time when the concessions are availed,
the open competition has not commenced. It commences when
all the candidates who fulfil the eligibility conditions, namely,
qualifications, age, preliminary written test and physical test
are permitted to sit in the main written examination. With age
relaxation and the fee concession, the reserved candidates
are merely brought within the zone of consideration, so that
they can participate in the open competition on merit. Once
the candidate participates in the written examination, it is
immaterial as to which category, the candidate belongs. All
the candidates to be declared eligible had participated in the
preliminary test as also in the physical test. It is only thereafter
that successful candidates have been permitted to participate
in the open competition. "
29. The ratio of the judgment in Jitendra Kumar Singh has to be
read in the context of statutory provisions and the Government orders
dated 25 .3 .1994 and the said observation cannot be applied in a case
where the Government orders are to the converse effect. As noted above
State ofRajasthan has issued circular dated 24.06.2008 where following
is provided in para 6.2:
"Circular dated 24.06.2008
6.2 Jn the state, members of the SCIST/OBC can compete
against non-reserved vacancies and be counted against them,
in case they have not taken any concession (like that of age,
etc.) payment of examination fee in case of direct recruitment. "
30. It is relevant to note that in the case before us circular dated
24.06.2008 was not under challenge. The State has come up with circular
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN
969
[ASHOK BHUSHAN, J.]
dated 11.05.2011 which was issued during process of recruitment. The A
Division Bench has already recorded a finding that recruitment process
had begun prior to circular dated 11.05.2011. The State clearly provided
that candidates belonging to reserved category irrespective of having
.availed any of the special concessions secure bench mark prescribed
for general/open category candidates if selected, such a reserved category B
candidate shall be counted against unreserved/open category candidates.
31.