Andhra Pradesh High Court - Amravati

Pilla Suneetha, vs The Andhra Pradesh Public Service ... on 24 February, 2021

Bench: M.Satyanarayana Murthy

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                      WRIT PETITION NO.4567 OF 2020

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

"declaring the action of the Respondent in illegally not calling the petitioner for the interview to the post of Assistant Commissioner of Endowments vide Notification No.15/2018 dated 21.12.2018 despite the merit of the petitioner and illegally denying the merit of the petitioner only on the ground that the petitioner belongs to reserved category which is illegal arbitrary unfair and showing the class discrimination and illegally declared the results vide dated 19.12.2019 is highly arbitrary unconstitutional and violation of Principles of Natural Justice also in violation of Articles 14 and 16 of the Constitution of India and consequently set aside the same and further direct the respondent to call the petitioner for interview to the post of Assistant Commissioner of Endowments as per merit irrespective of reserved category and declare the fresh results"

The petitioner who is a Law Graduate, enrolled as an

Advocate and practicing at Visakhapatnam. In response to the

notification inviting applications for the post of Assistant

Commissioner of Endowments in A.P. Charitable and Hindu

Religious Institutions and Endowments Service vide Notification

No.15/2018 dated 21.12.2018, she applied to the said post. As per

the said notification, Respondent No.1 proposed to recruit to fill

vacancies of five posts in both Multi Zone-I and II. Out of the five

posts, two posts were reserved for Women in the open category.

Both zones are having each one vacancy for unreserved women

category. The petitioner belongs to BC-D category, but no such

post was earmarked in unreserved women category. Accordingly, MSM,J WP.No.4567 of 2020

the petitioner applied for the above post and appeared for the

examination.

The petitioner contends that, as per Clause No.13.5 of

Notification No.15/2018 dated 21.12.2018, the minimum

qualifying marks for consideration to the selection process is 40%

for OCs, 35% for BCs and 30% for SCs, STs and PHs.

The method of selection for the post of Assistant

Commissioner is objective written test and interview. Objective

written test consists of three papers for 150 marks each, totalling

to 450 marks and 50 marks are allotted for interview. In the

written examination, the petitioner secured 158 marks out of 444

questions i.e. 37%, thus she claims to have crossed the minimum

qualified 35% marks as per Clause 13.5 of the Notification in the

written test, but the respondents denied benefit to this petitioner

to compete with the General Category (Women) for the post of

Assistant Commissioner of Endowments, it is illegal, arbitrary and

contrary to Notification No.15/2018 dated 21.12.2018 and violative

of Articles 14 and 16 of the Constitution of India.

It is specifically contended that the first respondent/APPSC

followed the illegal reservation method, contrary to the notification

and violated the constitutional mandate and against the settled

judicial precedent that in recruitment process, once game is

started, the rules of the game cannot be changed. It is contended

that, in the present case, the respondents violated the conditions

of notification to select their own candidates by adopting illegal MSM,J WP.No.4567 of 2020

methods, while denying the merit of this petitioner and failed to

call this petitioner for interview, being a meritorious candidate

among BC-D category and that, she cannot be put to

disadvantageous position on account of such procedure followed

by the respondents. Once a reserved category candidate competes

for selection by availing a relaxation or otherwise, it would have

been treated on par with open category candidates on the strength

of merit. The petitioner has been placed in third position in women

candidates who appeared for examination. But, the respondents

chose their own method and acted against the reserved category

people by showing the class discrimination in the recruitment

process. The relaxation can be given to the reserved category

people for reaching level playing field with open category people.

The spirit and object of the notification clearly expresses to provide

a level playing field for reserved category people as per sClause

13.5 of the Notification. Therefore, it is the contention of the

petitioner that, though secured more than minimum marks

prescribed under BC category, she was denied equal opportunity in

the employment in terms of Articles 14 and 16 of the Constitution

of India and requested to issue a direction as stated supra.

The first respondent/APPSC filed detailed counter affidavit,

admitting issue of notification and conditions incorporated therein,

inter alia, contended that, the Commission has issued Notification

No.15/2018 dated 21.12.2018 for 07 (05 fresh + 02 carry forward)

vacancies to the post of Assistant Commissioner of Endowments in

A.P. Charitable and Hindu Religious Institutions and Endowments MSM,J WP.No.4567 of 2020

Service. The community wise allotment of carry forward and fresh

vacancies is tabulated hereunder:

I. CARRY FORWARD VACANCIES

Multi Zone-I Multi Zone-II Total Community G W G W G W ST - 01 - 01 - 02

II. FRESH VACANCIES

Multi Zone-I Multi Zone-II Total Community G W G W G W ST 01 01 01 01 02 02 BC-B - 01 - - - 01

The respondents submitted that the petitioner belongs to

BC-D category, but no such post was earmarked under BC-D

category. As such, the petitioner is eligible only under Open

Competition and allowed her candidature for further process. The

petitioner appeared for the written examination (objective type)

(CBT) conducted by the Commission on 13.05.2019 FN & AN and

14.05.2019 FN only to the post of Assistant Commissioner of

Endowments (Notification No.15/2018). The petitioner also

appeared to written test (CBT) with Regd. No.150200165, but the

petitioner had not figured in the merit list for interview to the post

of Assistant Commissioner of Endowment, due to her low merit in

the open competition.

It is further contended that, the petitioner herself admitted

that she belongs to BC-D category, as no post was earmarked for

unreserved women category, she applied for the same. Therefore,

she must necessarily secure minimum eligible marks of 40%, but

the petitioner secured only 37%, thereby, she is not eligible for

interview. Therefore, mere securing 37% marks which is more than MSM,J WP.No.4567 of 2020

35% prescribed minimum mark for BC category is not sufficient to

call the petitioner for interview when she competed under Open

Category (Woman), thereby, the contention of this petitioner shall

be rejected.

The first respondent/Andhra Pradesh Public Service

Commission contended that the Commissioner notified 07

vacancies (05 fresh + 02 carry forward) vacancies, in which 02

vacancies are reserved for Open Category (General) and 02

vacancies are reserved for Open Category (Women) in Multi Zone-I

and II. 01 BC-B (Woman) vacancy in Multi Zone-I and 02 carry

forward vacancies i.e. reserved for ST(W) under Multi Zones-I and

II. In the process of selection, 03 vacancies are left unfilled due to

non-availability of qualified eligible merit candidates and that the

candidature of this petitioner was also considered pursuant to

Notification No.15/2018 dated 21.12.2018. The petitioner herself

has applied against Open Category vacancies. However, the

petitioner was not qualified for interview under Open Competition

(Women) as per general standard and that the general cut-off mark

under open competition (women) was 183.29, whereas the

petitioner scored 157.95 only in three papers in the written test

out of 450 marks (each paper 150 marks) which is less than 40%.

As such, she is not eligible to be considered for OC category post

and other candidates who secured higher marks over and above

157.95 marks than petitioner are available and they were not

qualified for interview, due to their low merit. Finally, it is

contended that the respondents did not violate any rules for MSM,J WP.No.4567 of 2020

recruitment or any provisions of Constitution, more particularly,

Articles 14 and 16 of the Constitution of India, and requested to

dismissed the writ petition.

The second respondent/Principal Secretary, General

Administration, Amaravati was impleaded as per order of this

Court in I.A.No.2 of 2020 dated 12.03.2020, but no counter is filed

by the second respondent.

The petitioner filed rejoinder to the counter affidavit and

contended that, the first respondent is bound to call four women

for interview as per merit. But the second respondent/APPSC

called only two women for interview instead of four women and this

petitioner was placed in the third position in the women category

in the State Wise. But the minimum qualifying marks for

consideration to the selection process are 40% for OCs, 35% for

BCs and 30% for SC/ST & PH persons, thereby; the petitioner

satisfied the eligibility criteria in selection process by securing

more than 35% marks. But, the first respondent in violation of law,

declared by the Supreme Court and High Courts in the judgments

referred, did not call this petitioner for interview. The petitioner

also asserted that, one woman candidate by name Vasanthi

Anaparthi belonging to SC women category was given post in

selection where the post is earmarked for open category even

though she did not secure qualifying marks where the post

earmarked in general category. In these circumstances, High Court

of Judicature at Hyderabad for the State of Telangana and State of

Andhra Pradesh considered the case and gave an appointment to MSM,J WP.No.4567 of 2020

the petitioner therein in one of the judgments relied on by these

petitioners in Andhra Pradesh Public Service Commission, rep.

by its Secretary v. R. Shreedevi (referred supra). When the

matter was carried to Supreme Court, the Apex Court dismissed

the appeal filed by Andhra Pradesh Public Service Commission vide

S.L.P. (Civil) No.15897 of 2018 and upheld that the judgment of

the High Court, so also the judgment in Vijay Goutam Dabbiru v.

High Court of Judicature at Hyderabad for State of Telangana

and State of Andhra Pradesh rep. by its Registrar General,

Hyderabad (referred supra).

During hearing, learned counsel for the petitioner

Sri S. Srinivasa Rao would contend that the petitioner being a

woman belonging to BC-D category availed various exemptions

under BC-B category like age and permitted her to appear for the

examination, though no reserved vacancy for BC-D (Woman) is

notified. Thereby, when the petitioner is allowed to enjoy the

benefits of reservation like fees exemption, more particularly, when

she secured more than minimum marks of 35% as per Clause 13.5

of the Notification, she cannot be denied the opportunity in

employment and therefore, the petitioner is eligible for

appointment against vacancy reserved for OC (W) in the open

competition, since she secured 37% of marks and in support of his

contentions placed reliance on judgment of the Supreme Court in

Saurav Yadav v. State of Uttar Pradesh1; judgments of Division

Bench of High Court of Judicature at Hyderabad for State of

2021 (1) ADJ 201 MSM,J WP.No.4567 of 2020

Telangana and State of Andhra Pradesh in Andhra Pradesh Public

Service Commission, rep. by its Secretary v. R. Shreedevi2 and

Vijay Goutam Dabbiru v. High Court of Judicature at

Hyderabad for State of Telangana and State of Andhra Pradesh

rep. by its Registrar General, Hyderabad3. On the strength of

the principles laid down therein, learned counsel for the petitioners

requested this Court to declare the petitioner as eligible for being

considered for the post of Assistant Commissioner of Endowments

reserved for Woman category having secured 37% marks and

sought direction as stated above.

Whereas, Sri N. Addanki Ramachandra Murthy, learned

Standing Counsel for Andhra Pradesh Public Service Commission

contended that, when the petitioner is competing for the post of

Assistant Commissioner for Endowments for vacancies in the

general category, she must necessarily secure the prescribed

minimum marks for the open category. But, she secured only 37%

marks, thereby, she is ineligible and mere exemption from

payment examination fee under BC-D will not confer any right to

her to claim that she is eligible to compete for being considered

without securing the minimum marks prescribed for Open

Category and as such, denial of opportunity and failure to consider

her candidature for interview is not discriminatory and violative of

any provisions or any law declared by the Court and finally,

learned counsel requested to dismiss the writ petition.

2018 (3) ALT 349 (D.B)

2018 (6) ALT 360 (D.B) MSM,J WP.No.4567 of 2020

Considering rival contentions, perusing the material

available on record, the point that arose for consideration is as

follows:

"Whether the petitioner being a member belonging to BC-D category, who secured less than 40% marks required to be secured by Open Category candidate, be deemed to be eligible for being considered for interview. If so, whether the act of the respondents in denying consideration of her candidature for interview is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India?"

P O I N T:

Admittedly, the petitioner is a member of BC-D (Woman)

category. The first respondent/Andhra Pradesh Public Service

Commission issued a notification for selection of Assistant

Commissioner of Endowments and notified seven posts. The details

of the posts are given hereunder:

I. CARRY FORWARD VACANCIES Multi-Zone-I

CF vacancies Total Community G W G W ST - 01 - 01

Multi-Zone-II

CF vacancies Total Community G W G W ST - 01 - 01

II. FRESH VACANCIES Multi-Zone-I Fresh Total vacancies Community G W G W OC 01 01 01 01 BC-B - 01 - 01

Multi-Zone-II

Fresh Total vacancies Community G W G W OC 01 01 01 01

MSM,J WP.No.4567 of 2020

As seen from the notification, no post is reserved for BC-D

(W), except one post for BC-B (W). The petitioner applied for the

post of Assistant Commissioner for Endowments under the

category OC(W) (Two posts were notified as shown in the table).

When the petitioner applied for selection as Assistant

Commissioner for Endowments under the category of OC (W), she

has to secure 40% as per Clause 13.5 of the Notification

No.15/2018 dated 21.12.2018. If it is for reserved category i.e. for

BC-D (W), the person who applied for selection against the

reserved category has to secure minimum 35% marks. Similarly,

30% marks are to be secured by persons under SC/ST & PH

category. Since, there is no reserved vacancy for BC-D category is

notified, the petitioner's application is only for selection against OC

(W) category and the same is admitted by her in Paragraph No.4 of

her writ affidavit. Thus, undisputedly, the petitioner applied for

selection for the post of Assistant Commissioner for Endowments

reserved for OC(W). The contention of the petitioner is that, being a

member of BC-D, she secured more than 35% marks, which is the

minimum qualifying marks prescribed, she is entitled to compete

with OC(W), though the minimum marks prescribed under OC(W)

is 40%.

Sri N. Addanki Sriramachandra Murthy, learned Standing

Counsel for the first respondent/Andhra Pradesh Public Service

Commission contended that, when the petitioner being a woman

applied for the post of Assistant Commissioner for Endowments,

which is reserved for women under OC(W) category, she must MSM,J WP.No.4567 of 2020

necessarily secure the minimum marks prescribed for selection

against OC(W) i.e. 40%, though she belongs to BC-D category,

since anyone can compete for selection in the open category. More

particularly, woman can compete with the OC(W), subject to

satisfying the eligibility criteria prescribed under the notification.

Undisputedly, the petitioner secured 37% of marks and she

availed the benefit of reservation i.e exemption from payment of

fee. At best, she secured more than 35% of marks which is

sufficient to compete for the post of OC(W). But, this qualification

cannot be accepted for the reason that, when the petitioner is

competing for the post reserved for women in open category, she

must necessarily secure 40% of marks, which is minimum

qualifying marks fixed vide Clause 13.5 of Notification No.15/2018

dated 21.12.2018, certainly, though the petitioner is eligible to

compete with the other women under OC category. But, when the

petitioner secured less than 40% marks, she is not eligible for

being called to interview. The prescription of minimum marks

under Clause 13.5 of the Notification No.15/2018 dated

21.12.2018 is only for reserved candidates who are claiming

selection against reserved vacancies, but not against general

vacancy of women or in open competition. Merely because the

petitioner secured 37% of marks prescribed under Clause 13.5 of

the Notification No.15/2018 dated 21.12.2018, she cannot claim

that she is eligible for being appointed against the vacancy

reserved for women in general category.

MSM,J WP.No.4567 of 2020

The petitioner is a member of BC-D community and the first

respondent/APPSC notified the posts for different categories. No

post is reserved for BC-D category vide Notification No.15/2018

dated 21.12.2018 for recruitment of Assistant Commissioner of

Endowments. The petitioner applied against OC(W) for her

selection against general category selection and the same is clearly

admitted in Paragraph No.4 of the writ affidavit. The specific

admission is extracted hereunder for better appreciation:

"I submit that I have obtained LLB Degree and thereafter, I started practice at Visakhapatnam. The respondent has issued a notification and invited applications for the post of Assistant Commissioner of Endowments in A.P. Charitable and Endowments Service vide Notification No.15/2018 dated 21.12.2018, the respondents have shown the total vacancies of 5 posts in both Multi Zone-I and II. Out of the 5, two posts were reserved for Women in the open category. Both zones is having each one vacancy for unreserved women category. I am belongs to BC-D category, but no such post was earmarked under my category. But, I was duly eligible for the posts earmarked in unreserved women category. Accordingly, I had applied for the above post and appeared for the test."

The said fact is again reiterated in the rejoinder filed after

filing counter by the respondents. Thereafter, the petitioner applied

for selection against OC(W), but not under BC-D category. The

minimum qualifying mark for calling the petitioner to interview is

prescribed as 40% for open category, as per Clause 13.5 of the

Notification No.15/2018 dated 21.12.2018. Though the petitioner

belongs to BC-D community, when she is competing for the post of

Assistant Commissioner of Endowments under OC(W), merely

because she belongs to BC-D, she is not entitled to any exemption

under BC, SC/ST & PH. She must necessarily secure 40% of the

marks to call her for interview. But the contention of this petitioner MSM,J WP.No.4567 of 2020

is that, in view of Clause 13.5 of the Notification No.15/2018 dated

21.12.2018, she is entitled to claim exemption of 40%, as she

claims to be member of BC-D community. No doubt, the petitioner

is entitled to claim for her appointment against open category if

she secure the marks prescribe under Clause 13.5 of the

Notification No.15/2018 dated 21.12.2018 for OC and if she is

claiming selection against vacancy reserved for BC-D, she is

entitled to claim such relief. But, when she does not secure

minimum qualifying ark for interview i.e 40% when she is

competing with open category candidates, she is ineligible for

interview, as she did not secure 40% of the required qualifying

marks.

Learned counsel for the petitioner contended that, this

petitioner is entitled to compete with the open category candidates

when she secured minimum marks prescribed for BCs and placed

reliance on the judgment of the Division Bench of High Court of

Judicature at Hyderabad for the State of Telangana and State of

Andhra Pradesh in Andhra Pradesh Public Service Commission,

rep. by its Secretary v. R. Shreedevi (referred supra), where the

Division Bench of the High Court held that the benefit under

Article 16(4) of the Constitution of India i.e. age relaxation relates

to their status as historically disadvantaged classes and is

extended to them as a special benefit under Article 16 of the

Constitution of India. Age relaxation does not constitute a

reservation in itself. Once a reservation category candidate

competes for selection, be it by availing age relaxation or otherwise, MSM,J WP.No.4567 of 2020

he would be on par with a open category candidate if he figures in

the select list on the strength of his own merit.

The law declared in the above judgment is not in quarrel and

the principle laid down in the above judgment is that, though the

petitioner belonging to reservation category, though availed age

relaxation, he would be on par with open category candidate, if she

figures in the select list on the strength of her own merit. For

instance, if a BC candidate who secured more marks than the last

candidate of OC, subject to minimum qualifying marks, the BC

candidate can be appointed against the OC vacancy. Thus, the

ratio laid down in the above judgment has no application to the

present facts of the case, for the reason that, the petitioner herein

did not secure minimum marks prescribed for OC category, when

she is claiming selection against the vacancy reserved for women

in OC category.

Learned counsel for the petitioner relied on the another

judgment of the Division Bench in Vijay Goutam Dabbiru v. High

Court of Judicature at Hyderabad for State of Telangana and

State of Andhra Pradesh rep. by its Registrar General,

Hyderabad (referred supra), where the Court held that, the tug of

war between merit and reservation poses several challenges and in

a variety of ways. Ultimately, the test to be applied is to see where

a person stands in the order of merit at the time of final selection.

Law does not permit a less meritorious General category candidate

to be allotted a seat kept unreserved, by overlooking the claim of a

more meritorious candidate, solely on the ground that such more MSM,J WP.No.4567 of 2020

meritorious candidate belonged to the reserved category and

availed the benefit of relaxed criteria.

This principle is also not applicable to the present fact of the

case, as the Court specifically made it clear as follows:

"We have carefully considered the rival submissions. The entire controversy, in our opinion, revolves around the question as to whether a reserved category candidate, to be eligible for selection as against an unreserved vacancy, should have secured the minimum qualifying marks prescribed for open category candidates, or whether he is entitled to claim the benefit of relaxed eligibility criteria. Before searching for an answer to this question from judicial precedents, let us first take a look at the rule position."

In the above judgment, the Division Bench of the High Court

adverted to Rule 6 of the Andhra Pradesh State Judicial Service

Rules, 2007, and finally concluded that, if in the ultimate tally, a

person is found to be the topper in the entire process of selection,

the selection of such a candidate does not result in merit being

compromised. On the contrary, his non-selection would result in

merit being compromised.

The principle laid down in the above judgment is also not

applicable to the present facts of the case, for the reason that, the

petitioner did not secure minimum qualifying mark to call for

interview i.e. 40% though the petitioner is competing with women

belonging to OC, as asserted in Paragraph No.4 of the writ

affidavit.

Learned counsel for the petitioner further relied on another

judgment of the Supreme Court in Saurav Yadav v. State of Uttar

Pradesh (referred supra), wherein, the Court referred the judgment MSM,J WP.No.4567 of 2020

of Apex Court in Public Service Commission, Uttaranchal etc. v.

Mamta Bisht4, where the view taken by the High Court that one

Neetu Joshi, on her own merit, was entitled to be considered in

General category and as such she could not be counted against

seats reserved for "Uttaranchal Mahila" category; was under

challenge. A bench of two Judges of this Court set aside the view

taken by the High Court with following observations:

3. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates. Some women candidates stood selected in the general category while others had been given the benefit of horizontal reservation being residents of Uttaranchal. Respondent 1, being aggrieved preferred Writ Petition No. 780 of 2003 (M/B) in the High Court of Uttaranchal seeking quashment of select list dated 31-7-2003 mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in the general category and had it been done so, Respondent 1 could have been selected in the reserved category being a woman of Uttaranchal. It had also been pleaded in the petition that some of the women candidates who not only claimed the benefit of horizontal reservation but have been selected giving the said benefit, did not submit their respective certificate of domicile at the time of filling up the application forms but they produced the said certificate at a later stage and it was accepted.

4. The High Court accepted the first submission of Respondent 1 after examining the record of selection and came to the conclusion that the last selected woman candidate who was given the benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in the general category. Thus, the said candidate ought to have been appointed against the general category vacancy and Respondent 1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women. Hence, these appeals.

... ... ...

13. In fact, the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidates (social) as it held as under:

In view of the above, Neetu Joshi (Sl. No. 9, Roll No. 12320) has wrongly been counted by Respondent 3/Commission against five seats reserved for Uttaranchal Women General Category as she has competed on her own merit as general candidate and as the fifth candidate

(2010) 12 SCC 204 MSM,J WP.No.4567 of 2020

the Petitioner should have been counted for Uttaranchal Women General Category seats.

Admittedly, the said Neetu Joshi has not been impleaded as a Respondent. It has been stated at the Bar that an application for impleadment had been filed but there is nothing on record to show that the said application had ever been allowed. Attempt had been made to implead some successful candidates before this Court but those applications stood rejected by this Court.

In the present case, the issue was not with regard to

horizontal or vertical reservation, but the question is whether BC

women who applied for selection against the post of reserved for

women under open category is eligible for being considered for

interview, though she did not secure the qualifying percentage of

marks. This was not considered in the judgment. Hence, the

principle laid down in the above judgment has no application to

the present facts of the case.

In view of the law declared by the Apex Court and Division

Bench of the High Court referred supra, it is necessary to advert to

the law declared by various courts on this issue.

In Jitendra Kumar Singh v. State of UP5, the Supreme

Court was considering the U.P Public Services (Reservation for

Scheduled Castes and Scheduled Tribes) Act, 1994 Act ("UP Act")

and government order dated March 25, 1994. The order stated: "If

any person belonging to reserved categories is 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

2010 (3) SCC 119 MSM,J WP.No.4567 of 2020

any facility of relaxation (like relaxation in age limit) available to

reserved category." The Supreme Court thereby stated that a bare

perusal of the order implies that there is no express bar in the UP

Act for SC/ST/OBC candidates being considered for posts under

the general category. It held as follows:

"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 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. Sub-section (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."

(emphasis supplied)

In Indra Sawhney v. Union of India6 popularly known as

the Mandal case, the Constitution Bench of the Supreme Court

had held as follows:

"[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 belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

(emphasis supplied)

In R.K. Sabharwal v. State of Punjab7, the Constitution

Bench of the Supreme Court considered the question of

appointment and promotion and roster points vis-a-vis reservation

and thereby held:

1992 Supp (3) SCC 217

1995) 2 SCC 745 MSM,J WP.No.4567 of 2020

"When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts; their number cannot be added and taken into consideration for working out the percentage of reservation...

No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition."

(emphasis supplied)

In Union of India v. Virpal Singh Chauhan8, the Supreme

Court held that while determining the number of posts reserved for

SC and ST, the candidates belonging to reserved category but

selected/promoted on the rule of merit (and not by virtue of rule of

reservation) shall not be counted as reserved category candidates.

In Ritesh R. Sah v. Dr. Y.L. Yamul9, the question was

whether a reserved category candidate who is entitled to be

selected for admission in open competition on the basis of his/her

own merit should be counted against the quota meant for the

reserved category or if the candidate should be treated as a general

candidate. The court reached the conclusion that when a

candidate is admitted to an educational institution on his own

merit, then such admission is not to be counted against the quota

(1995) 6 SCC 684

(1996) 3 SCC 253 MSM,J WP.No.4567 of 2020

reserved for schedule castes or any other reserved category. It was

held that, while a reserved category candidate entitled to

admission on the basis of his merit will have the option of taking

admission in the colleges where a specified number of seats have

been kept reserved for reserved category but while computing the

percentage of reservation he will be deemed to have been admitted

as an open category candidate and not as a reserved category

candidate.

In Dr. N.T.R. University of Health Sciences v. Dubbasi

Praveen Kumar10, the division of the Andhra Pradesh & Telangana

High Court held:

"There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4)."

Moreover, in U.P Power Corporation Ltd v. Nitin

Kumar11, the Division Bench of the Allahabad High Court, held

that an unreserved post or seat/general category seat is one in

which every individual, irrespective of the category to which the

person belongs, can compete in open merit. It was further held

that, where a candidate is meritorious enough to be placed within

the zone of selected candidates independent of any claim of

reservation and purely on the basis of the merit of the candidate,

the candidate ought not to be relegated to a seat against the

10 2016 (3) ALT 769 11 2015(5) ADJ 417 MSM,J WP.No.4567 of 2020

reserved category. The simple reason for this principle is that

reservation is a process by which a certain number of posts or

seats is carved out for stipulated categories such as OBC,

Scheduled Castes and Scheduled Tribes. Unreserved seats do not

constitute a reservation for candidates belonging to categories

other than the reserved categories.

Even prior to the judgment of the Allahabad High Court in

U.P Power Corporation Ltd v. Nitin Kumar (referred supra), the

Supreme Court in Deepa E.V v. Union of India12, had an occasion

to consider the same issue. In the facts of Deepa E.V v. Union of

India, the appellant belonged to the OBC category and had

availed age relaxation (as was granted to OBC category

candidates). Since no candidate from the general category had

secured the minimum cut-off score, the appellant filed a writ

petition before the high court to be accommodated in the general

category. The high court dismissed the petition. The Supreme

Court affirmed this decision and held that, the appellant, who has

applied under OBC Category by availing age relaxation and also

attending the interview under the 'OBC Category' cannot claim

right to be appointed under the General Category. The reason, as

per the court, was "there is an express bar for the candidates

belonging to SC/ST/OBC who have availed relaxation for being

considered for General Category candidates." The court was

reading the existing rules and proceedings of Department of

Personnel and Training, which stated that: "[W]hen a relaxed

2017 (12) SCC 680 MSM,J WP.No.4567 of 2020

standard is applied in selecting an SC/ST/OBC candidates, for

example in the age-limit, experience, qualification, permitted

number of chances in written examination, extended zone of

consideration larger than what is provided for general category

candidates, etc., the SC/ST/OBC candidates are to be counted

against reserved vacancies. Such candidates would be deemed as

unavailable for consideration against unreserved vacancies.

In Gujarat Public Service Commission v. Parmar Nilesh

Rajendrakumar13, the Gujarat High Court considered this issue in

the same perspective and concluded that all those candidates

belonging to the reserved category if they avail the benefit of age

relaxation, it is held to be relaxation in the standard, and

therefore, are not entitled to their cases being considered for

General Category vacancies and that their cases are required to be

considered for the reserved category vacancies.

Later, the Apex Court in Gaurav Pradhan v. State of

Rajasthan14 considered the similar situation, relying on Deepa

E.V v. Union of India (referred supra) and Vikas Sankhala v.

Vikas Kumar Agarwal15, wherein, similar situation had arisen and

held as follows:

"24. It so happened that many candidates who belonged to reserved category got higher marks than the last candidates from the general category who was selected for the appointment in the said recruitment process. In terms of its various circulars, which we shall refer to at the appropriate stage, such reserved category candidates who emerged more meritorious than the general category candidates were

2015(3) GLH 481

(2018) 11 SCC 352

(2017) 1 SCC 350 MSM,J WP.No.4567 of 2020

allowed to migrate in general category. Effect thereof was that these candidates though belonging to reserved category occupied the post meant for general category. According to the writ petitioners (the respondents herein), it was impermissible as these reserved category candidates got selected after availing certain concessions and, therefore, there was no reason to allow them to shift to general category. The High Court has accepted this plea treating the relaxation in pass marks in TET as concession availed by the reserved category candidates in the selection process."

In the facts of the above judgment also, under the orders of

the State Government dated 23.3.2011 relaxation in marks of the

TET ranging from 10% to 20% was allowed to different reserved

categories. After availing such relaxation the reserved category

candidates were selected as having obtained more marks than the

last general category candidate and were included in the general

category candidates. Different circulars issued by the State of

Rajasthan including circulars dated 17.06.1996, 04.03.2002 and

11.05.2011 were noticed by this Court. The general category

candidates contended that since relaxation was obtained prior to

issuance of circular dated 11.05.2011, circular dated 11.05.2011

is not applicable and as per earlier circulars reserved category

candidates having obtained relaxation in marks were not eligible to

be included into general category candidates. This Court after

noticing the above arguments, ultimately held that the relaxation

given in the marks in TET examination is not part of recruitment

process. In paragraph 80 of the judgment this Court reached on

following conclusion:

80.....Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET.

MSM,J WP.No.4567 of 2020

Thus, the Apex Court came to the conclusion that relaxation

given in TET was not part of recruitment process, the Circulars

issued by the State of Rajasthan as noted above were held not to

be applicable. Finally, the Apex Court in Gaurav Pradhan and Ors.

v. State of Rajasthan and Ors. (referred supra) held as follows:

"48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.

49. On the question of existence of vacancies, although learned Counsel for the Appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned Counsel for the State of Rajasthan. However, neither Appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies. We thus for adjusting the equity between the parties issue following directions:

(1) The writ Petitioners/Appellants who as per their merit were entitled to be appointed against unreserved vacancies which vacancies were filled up by migration of SC/ST/BC candidates who had taken relaxation of age should be given appointment on the posts. The State is directed to work out and issue appropriate orders for appointment of such candidates who were as per their merit belonging to general category candidates entitled for appointment which exercise shall be completed within three months from the date copy of this order is produced.

MSM,J WP.No.4567 of 2020

(2) The State shall make appointments against the existing vacancies, if available, and in the event there are no vacancies available for the above candidates, the supernumerary posts may be created for adjustment of the Appellants which supernumerary posts may be terminated as and when vacancies come into existence.

(emphasis supplied)

In Government of NCT Delhi v. Pradeep Kumar16

considered the similar issue. In the facts of the above judgment,

the Advertisement was issued by the Delhi Sub-ordinate Services

Selection Board where, for the vacancies of Special Education

Teachers. Respondents offered their candidature for the vacancies

in Delhi and appeared in the recruitment test. But their

candidature were held to be not-eligible, through the office order

on ground that the applicants were CTET qualified as OBC but

OBC outsider. Aggrieved by the above decision of the Selection

Board, the Original Applicants filed the application before

Tribunal. The Tribunal considered the rival contention and

observed that rejection of the candidature of the Original

Applicants would mean that the Appellants do not recognize the

CTET qualification. The Tribunal took the view that there shall be

no bar in considering meritorious applicants in the unreserved

category if no weightage was given to CTET marks in preparation of

the final merit list. Consequential direction was issued to the

authorities for appointment of Original Applicants, in terms of their

respective position in the merit list. On writ petition against said

order, the High Court accordingly held that once the candidate had

obtained the CTET qualification, the marks secured in the

(2019) 10 SCC 120 MSM,J WP.No.4567 of 2020

qualifying examination is immaterial for consideration of their

candidature, for the unreserved category vacancies. As the

performance of the respondents were more meritorious than others

selected in the unreserved category, the Tribunal's decision in

favour of the Respondents was upheld.

The Apex Court after considering the entire matter, held as

follows:

i) The Respondents were competing for general category vacancies. All others in this group had obtained their CTET eligibility qualification, securing the normal pass marks without availing any relaxation of pass norms. On the other hand, the Respondents despite their lesser marks in the CTET examination, could qualify only because they availed the relaxation benefits as OBC category examinees. Their eligibility qualification is secured under relaxed norms meant for OBC category and therefore this court did not think it is proper to consider them to be eligible for the general category vacancies and contention to the contrary was unacceptable.

(ii) The Respondents with their CTET qualification under relaxed norms would be eligible for OBC category posts provided their OBC status was certified and recognized by the Delhi government. But such not being the case, they were ineligible for the reserved category vacancies. To allow them to migrate and compete for the open category vacancies would not be permissible simply because, they had secured the CTET qualification with relaxation of pass marks meant for those belonging to the OBC category. As the Respondents had not secured the normal pass marks for general category, their eligibility for the general category vacancies was not secured. Therefore, their performance in the selection examination would be of no relevance, in the present process.

(iii) As earlier discussed, this case concerns qualifications obtained with concession in pass marks. Such concession would have a direct impact on standards of competence and merit in the recruitment of Special Education Teachers. The principles of reservation under the Constitution of India are intended to be confined to a specifically earmarked category and the unreserved category must be protected, to avoid dilution of competence and merit. If Vikas Sankhla and Ors. v. Vikas Agarwal ((2017) 1 SCC 350) was interpreted shorn of its peculiar facts, as had been suggested by the respondents' counsel, it would in perception, considering that Respondents secured the qualification under relaxed norms, would lead to dilution of merit in the unreserved category. The arguments made to the contrary by the respondents was therefore rejected."

(emphasis supplied) MSM,J WP.No.4567 of 2020

It is the consistent view of the Apex Court and High Courts

that, if a candidate who secured more marks than the last selected

candidate, if a candidate from OBC/BC has secured more marks

than the last selected candidate from open category, such

candidate is liable to be considered for interview, though she

availed concessions provided under the Rules.

Turning to the present facts of the case, the petitioner

applied for her selection to the post of Assistant Commissioner for

Endowments, against reserved category for women under Open

Competition, but not under reserved vacancy for BC-D. Therefore,

she must necessarily secure minimum 40% qualifying marks for

consideration of her candidature for interviews, since she did not

fall in concession. Therefore, the petitioner who secured 37% of

marks cannot be said to be qualified against the General Category

(Women) as minimum qualifying marks prescribed for general

category as 40%. If the petitioner secured 40% marks irrespective

of availing any concessions provided to the BC/OBC as per Rules,

she is entitled for being selected against the vacancies, though she

can compete in the open category for her selection. But, here, the

petitioner did not secure minimum qualifying mark, thereby she is

disentitled to claim any relief in the present writ petition.