Gujarat High Court

Maulik Rameshbhai Kapadiya vs High Court Of Gujarat on 4 April, 2022

Bench: Biren Vaishnav

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 6917 of 2020
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 11832 of 2020
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 13889 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MAULIK RAMESHBHAI KAPADIYA Versus HIGH COURT OF GUJARAT ========================================================== Appearance:

MR PK JANI, SENIOR COUNSEL WITH MR RASHESH A RINDANI(5380) for the Petitioner(s) No. 1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115 ,116,117,118,119,12,120,121,122,13,14,15,16,17,18,19,2,20,21,22,23,24,25, 26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,4 9,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,7 2,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95, 96,97,98,99 MR DADHICHI L LIMBOLA(10936) for the Petitioner(s) No. 1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115 ,116,117,118,119,12,120,121,122,13,14,15,16,17,18,19,2,20,21,22,23,24,25, 26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,4 9,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,7 2,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95, 96,97,98,99 MR SHIRISH H GOHIL(3253) for the Petitioner(s) No. 1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115

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,116,117,118,119,12,120,121,122,13,14,15,16,17,18,19,2,20,21,22,23,24,25, 26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,4 9,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,7 2,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95, 96,97,98,99 LAW OFFICER BRANCH(420) for the Respondent(s) No. 1,2 MR HEMANG M SHAH(5399) for the Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 04/04/2022

COMMON CAV ORDER

1. All these petitions are filed by the petitioners

challenging the select list dated 27.02.2020

prepared for recruitment to the post of Assistants in

the subordinate Courts.

2. For the purposes of this judgment, facts of Special

Civil Application No.6917 of 2020 shall be

considered.

3. The High Court on its administrative side issued an

advertisement on 12.06.2018 for recruitment to the

posts of Assistants in Subordinate Courts in the

State of Gujarat. The advertisement was for total

767 vacancies. The breakup of the number of

vacancies which was advertised was as under:

 General             SC            ST                    SEBC              Total






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4. There was a set of 3 examinations which were to be

conducted viz. elimination test, the main written

examination and the practical/skill test (typing test).

According to the advertisement, a select list and a

wait list had to be prepared. It is the case of the

petitioners that the petitioners were declared

successful in all three set of examinations and were

called for document verification.

5. The case of the petitioners is that when the final

select list was published on 27.02.2020, of the total

767 posts that were advertised, the select list

consisted only of 525 candidates. By a table, the

petitioner has demonstrated the number of

vacancies that were advertised and the total

selected candidates.

                            Total vacancies advertised

Total    Open              SC                ST                   SEBC                 Ph.       Ex. S.
         M           F     M       F         M         F          M         F
767      279         129   31      06        84        42         133       63         32        76

                               Total selected candidates






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Total    Open                   SC              ST                  SEBC                 Ph.       Ex. S.
         M           F          M     F         M         F         M         F
525      274         12         31    06        05        00        182       14         1

6. The case of the petitioners is that though after the

select list was prepared, the petitioners who

belonged to the Scheduled Caste category, could

have been accommodated as not only 121 posts in

the open category but 121 posts in the ST category

viz. 242 posts were still vacant.

7. Mr.P.K.Jani learned Senior Advocate appearing with

Mr.Rashesh Rindani for the petitioners made the

following submissions:

7.1 He submitted that the petitioners belong to the

scheduled caste community. Though they had

availed of some relaxation as scheduled caste

candidates, it is apparent from perusal of the final

merit list that the petitioners had obtained higher

marks than the last candidate selected in open merit

category.

7.2 By demonstrating through the candidates in the

select list, Mr.Jani would submit that the reservation

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policy was implemented in such a fashion that the

candidates securing 52.20 marks is appointed and

the candidate having 57.50 marks was not selected.

He would by eliciting nine examples submit that the

select list was flawed inasmuch as appointments

were granted in the general category to merit

candidates securing lower marks than the

petitioners who otherwise had secured more marks.

The examples as argued by learned counsel for the

petitioner Shri Jani are as under:

                 Last    candidate        who         is        granted

            appointment    in      general     category            though

belonging to SEBC is in Dahod district securing

52.20 marks, whereas last candidate placed in

waiting list in SEBC category has secured 57.50

marks. (Candidate No.20) (Page No.218).

 Last candidate in Narmada District has

secured 52.90 marks. (Candidate No.06) (Pg.

No.224).

 Last candidate in Navsari District had

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and 26) (Pg. No.226).

 Last candidate in Navsari District had

secured 54.60 marks. (Candidate No.27) (Pg.

No.226).

 Last candidate in Aravalli District had

secured 55.60 marks. (Candidate No.40) (Pg.

No.215).

 Last candidate in Devbhoomi Dwarka

District had secured 55.30 marks. (Candidate

Nos.23, 24, 25 and 26) (Pg. No.219).

 Last candidate in Gir Somnath District had

secured 55.80 marks. (Candidate Nos.09) (Pg.

No.219).

 Last candidate in Kutch District had

secured 52.70 marks. (Candidate Nos.21 and

22) (Pg. No.220).

 Last candidate in Mahisagar District had

secured 53.30 marks. (Candidate Nos.17, 18,

 Candidate No. 19 in Mahisagar District

has secured 56.30 marks and is granted

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appointment in general category though

belonging to SC whereas last candidate place in

waiting list in SC category has secured 60.70

marks (Pg. No.222).

7.3 By demonstrating the selection vis-a-vis merit,

Shri Jani would submit that apart from 121 seats

which are unfilled in the open category, as many as

121 seats are vacant in the Scheduled Tribe

category. He would submit that the petitioners who

belonged to Scheduled Tribe category could also be

considered for appointment to 121 seats meant for

the ST category which remained unfilled.

7.4 Shri Jani would submit that the High Court on

the administrative side in the recruitment year of

2011-12 and the recruitment year of 2014-15 had

appointed open merit candidates in the seats meant

for Scheduled Caste and SEBC candidates when

those candidates were not available and the same

practice should have been followed.

7.5 Shri Jani would further submit that the concept

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of reservation as enshrined in the Constitution is a

benevolent provision with the idea of upliftment of

those who are downtrodden. The petitioners are

denied selection only on the ground that they have

availed either relaxation in form of age or qualifying

marks. According to Mr.Jani, the stand of the

respondents in relying on the Government

Resolution dated 23.07.2004 is misconceived. The

petitioners have secured more marks than the

candidates who were appointed. There are 121

posts vacant in the general category and there is

enough room therefore for the petitioners to be

accommodated. Even otherwise 121 vacant posts of

the scheduled tribe category are also unfilled.

8. Mr.Shalin Mehta learned Senior Advocate appearing

with learned advocate Mr.Hemang Shah submitted

as under:

8.1 Highlighting the number of vacancies viz. 761

which were advertised for the posts of assistants in

the subordinate Courts in Gujarat, Mr.Mehta would

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submit that the stand of the petitioners to lodge

their claim against 121 vacant posts in the general

category, though they belong to SC category, is

misconceived.

8.2 The stand of the petitioners that they should be

also appointed by showing that they had better

marks than the persons who were selected, is

misapplication of facts.

8.3 Mr.Mehta would draw the Court's attention to

the affidavit in reply and to the Government

Resolution dated 29.01.2000 and a subsequent

resolution dated 23.07.2004, where the Government

has clarified that a reserved category candidate if

has not availed of any relaxation of age, experience,

qualification etc. then the candidate will be adjusted

in the open category. However, if such a candidate

has availed of relaxation while competing with the

unreserved category candidate, the said reserved

category candidate will have to be considered

against the reserved quota and he or she will not be

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entitled to be adjusted in the unreserved category.

According to Mr.Mehta since the petitioners have

availed of the benefit of relaxation, their case would

be governed by the resolution as referred.

8.4 Mr.Mehta would submit that the stand of the

petitioners that the posts should be filled in which

were vacant and unfilled, 242 in number, for better

administration of justice, is also an argument that

must be discredited. Merely because there is

availability of vacant posts, would not mandate an

employer to fill the vacant posts by selecting

candidates from other category.

8.5 As far as the argument of Mr.Jani that in past,

the High Court in the years 2011 and 2014, had

appointed General Category candidates against

reserved category posts, also deserves to be brushed

aside. He would submit that during the said

recruitment process, candidates from the reserved

category were not available, whereas, in the present

recruitment process, candidates from the general

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category are not available. Specific resolution of the

Government prohibits granting appointment to the

reserved category candidates against the vacancies

of General Category or ST categories who had

availed relaxation. Accordingly the petitioners' case

deserves to be dismissed.

9. Having considered the submissions made by the

learned counsel for the respective parties, though at

first blush, the Court would be tempted to accept the

submission made by the learned counsel for the

petitioners that when 767 vacancies were advertised

and only 525 were filled in, the remaining 242

vacancies which were going unfilled, could be filled

in by appointing the petitioners who had

demonstrated that they had secured more marks

than the candidates whose names figured on the

select list.

9.1 However, the most important aspect that the

learned counsel for the petitioners seems to have

overlooked in canvassing these submissions, is that

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the petitioners belonged to reserved category viz.

the Scheduled Caste. The candidates whose names

are picked up to demonstrate discrimination

inasmuch as they having secured appointment

despite getting lower marks than the petitioners is a

fallacy inasmuch as, they were candidates who were

found meritorious in the general category and

hence, secured appointment in the General

Category. In absence of non-availability of successful

candidates of open merit and the ST category as well

as meritorious reserved category candidates, the

vacancies could not be filled in.

9.2 The petitioners cannot compare their case with

the candidates whose appointments, by way of

demonstrating their placement in the list as

compared to their marks, is sought to be argued. It

has come on record that the petitioners as reserved

category candidates had so obtained their marks by

availing of relaxations either in the form of age,

qualifications etc. and therefore, by availing such

relaxations, if they find themselves shoulder to

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shoulder with the normal merit candidates, but for

availing of such relaxation, they could not have been

at the place that they were. The resolutions relied

upon by the learned counsel for the respondents viz.

29.01.2000 and 23.07.2004 indicate that so far as

the claim of the petitioners to be treated as

meritorious reserved category candidates is

concerned, the bare reading of the circulars make it

clear that the candidates like the petitioners who

have availed relaxation at any stage of examination,

cannot be treated as meritorious reserved category

candidates.

9.3 It is settled by the decision of the Supreme

Court that candidates belonging to SC/ST and SEBC

who have taken relexation of age are not entitled to

migrate to unreserved vacancies. In case of Gaurav

Pradhan v. State of Rajasthan reported in 2018

(11) SCC 352, the Supreme Court held as under:

"12. We have considered the submissions of the parties and perused the records.

From the submissions of the learned counsel for the parties and materials on record the following issues arise for consideration in

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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 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 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 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 (1) Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion.

                       ....     ....        ....   ....     ...





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                       ....    ....        ....   ....     ..."

14. As per Rule 7(1) orders were issued by the State of Rajasthan from time to time providing for reservations and matters connecting therewith. In the present case we are only concerned with the question of migration of reserved 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 were referable to Rule 7(1) 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 of recruitment 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:

"Circular dated 24.06.2008

6.2 In the state, members of the SC/ ST/OBC can compete against non- reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment."

15. It 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:

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"Circular dated 04.03.2002

(a) If a candidate belonging to OBC/SC/ST 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/SC/ST shall be counted against the general category vacancies and not the vacancies reserved for the OBC/SC/ST, 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 persons under the various service rules/ Government 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:

"Circular dated 11.05.2011 In super- session of this department circular of

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even number dated 04.03.2002 on the abovementioned subject, the matter has been examined in consultation with Law Department, the following clarifications are here by issued 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 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.

                       ...    ...       ...       ...    ...
                       ...    ...       ...       ...    ..."

17. The Government orders were issued by the State of Rajasthan as contemplated by Rule 7(1) of 1989 Rules which were in operation at the time of initiation of process of recruitment 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 into general/open category. The Division Bench of the High Court has after noticing all the relevant circulars on the subject has itself

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recorded a finding to the above effect. It is relevant to refer to the aforesaid finding which is to the following effect:

"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 of SC/ST/OBC can compete against nonreserved 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.5/2010 dated 07.10.2010 followed for recruitment to the post of Constable notified vide advertisement dated 25/11/2010.

The State Government through out from June, 1996 consistently in its later circulars issued in March, 2002. June, 2008, October, 2010 (Standing Order No.5/2010) as per its policy decision directed that the candidates belonging to SC/ST/OBC can compete against nonreserved vacancies provided they have not availed special concessions (like age etc.) other than examination fees.

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However, there was a deviation in its later circular dated 11/05/2011 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."

9.4 Similarly, the Supreme Court in case of

Niravkumar Dilipbhai Makwana v. Gujarat

Public Service Commission reported in 2019 (7)

SCC 383, held as under:

"24.Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the

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Government from time to time.

25. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post.

26. Now, let us consider the judgment in Jitendra Kumar Singh (supra). In this case, this Court was considering the interpretation of Sub-section (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Sub-section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under:

"(6) If a person belonging to any categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1)."

27. The State of U.P. issued Instructions dated 25.03.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Groups in the Uttar Pradesh Public

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Services. Last line of these instructions is as under: "It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category."

28. On consideration of sub-section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated 25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.

29. In Deepa (supra), the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/ Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under:

"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies."

30. The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of

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the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.

31. Similar question arose in Gaurav Pradhan (supra). In this case the Government had issued Circular dated 24.06.2008 which is as under:

"Circular dated 246-2008 6.2. In the State, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment."

32. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under:

"32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25-3-1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as

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indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24-6-2008."

9.5 It is clear that none of the petitioners who

belonged to the reserved category qualified on his

own merit. He did so by availing of relaxation either

in the upper age limit or in passing marks criteria

and therefore their case cannot be considered for

selection on open merit seats or vacancies.

9.6 Apart from an objection lodged by the

respondents that there is no prayer in the petition

for being absorbed in the Scheduled Tribe category

and therefore such petition cannot be entertained,

even otherwise, a Scheduled Caste category cannot

claim his right to be appointed on a post which is

earmarked for the other reserved category.

9.7 In context of the demonstration made by the

learned counsel for the petitioners as is pointed out

in the affidavit that one candidate belonging to the

SEBC category had secured 52.20 marks in

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