Samarath Mal Kumhar vs State Of Rajasthan
2022 Latest Caselaw 11683 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12859/2018

1. Samarath Mal Kumhar S/o Nirbhay Ram Ji, Aged About 28 Years, Village Arniya, Post Dewad, Tehsil Pratapgarh, District Pratapgarh (Raj.).

2. Ashok Kumar Darji S/o Shri Vasu Dev Darji,, Aged About 27 Years, Village And Padardi Badi, Tehsil Sagwara, District Dungarpur (Raj.).

3. Padamji Patidar S/o Shri Rupeng Patidar, Aged About 28 Years, Village Torna, Post Asan, Tehsil Garhi, District Banswara (Raj.).

4. Hira Lal Nai S/o Shri Babu Lal Nai,, Aged About 30 Years, Village And Post Ninor, Tehsil Arnod, District Pratapgarh (Raj.).

5. Gopal Krishna Rathod S/o Shri Nathji Rathod,, Aged About 26 Years, Village And Post Bansla, Tehsil Bagidora, District Banswara (Raj.).

6. Pawan Kumar Purbiya S/o Shri Bhagirath Purbiya,, Aged About 31 Years, Village And Post Banoda/banora, Tehsil Salumbar, District Udaipur (Raj.).

7. Bhavesh Kumar Rebari S/o Udaji Rebari,, Aged About 28 Years, Village Dhani Barwa, Post Ghamdi Devki, Tehsil Sagwara, District Dungarpur (Raj.).

8. Rajaram S/o Shri Jeeva Ram, Aged About 30 Years, Rebarivas- Mawal, Tehsil Abu Road, District Sirohi (Raj.).

9. Anurag Patel S/o Shri Himmat Lal Patel,, Aged About 26 Years, Village And Post Surwaniya, Tehsil, Banswara, District Banswara (Raj.).

10. Nathu Lal Patel S/o Shri Kachra Patel,, Aged About 26 Years, Village Kheruaa, Post Intali, Tehsil Semari, District Udaipur (Raj.).

11. Mahendra Singh Rao S/o Ratan Singh Rao,, Aged About 24 Years, Village Bhatoli, Post Pindawal, Tehsil Sabla, District Dungarpur (Raj.).

12. Paresh Patel S/o Shri Bacchu Lal Patel,, Aged About 28 Years, Village And Post Bhandra, Tehsil Kherwara, District Udaipur (Raj).

13. Shankar Lal Patel S/o Pemji Patel, Aged About 33 Years,

(2 of 16)

Village And Post Bana Khurd, Tehsil Sarada, District Udaipur (Raj.).

14. Jitendra Soni S/o Satya Narayan Soni,, Aged About 36 Years, House No. 100, Sita Kunj, Commercial Colony, District Banswara (Raj.).

15. Mahendra Kumar Nai S/o Shri Shanti Lal Nai, Aged About 28 Years, Village And Post Sakhthali, Tehsil Arnod, Distt. Pratapgarh (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through Its Principal Secretary Panchayati Raj Department, Govt. Secretariat, Jaipur (Raj.).

2. The Director Elementary Education, Rajasthan, Bikaner.

----Respondents Connected With S.B. Civil Writ Petition No. 12771/2018

1. Naresh Kumar Patel S/o Shri Gautam Ji Patel, Aged About 26 Years, Village And Post Veerpura, Tehsil Sarda, Distt. Udaipur (Raj.).

2. Dixit Patidar S/o Ranchhod Patidar,, Aged About 27 Years, Village And Post Surwaniya, Tehsil Banswara, Distt. Banswara (Raj.).

3. Mahipal Sharma S/o Shri Natvar Lal Sharma,, Aged About 28 Years, Village And Post Surwaniya, Tehsil Banswara, Distt. Banswara (Raj.).

4. Dilip Masani S/o Shri Valeng Mansanz,, Aged About 30 Years, Masani Mohalla Ganesh Chowk, Chheench, Education, Distt. Banswara (Raj.).

5. Mahendra Kumar Nai S/o Shri Shanti Lal Nai,, Aged About 28 Years, Village And Post Sakhthali, Tehsil Arnod, Distt. Pratapgarh (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through Its Principal Secretary Panchayati Raj Department, Govt. Secretariat, Jaipur (Raj.).

2. The Director Elementary Education, Rajasthan, Bikaner.

(3 of 16)

----Respondents S.B. Civil Writ Petition No. 12778/2018

1. Naresh Kumar Patel S/o Shri Gautam Ji Patel, Aged About 26 Years, Village And Post Veerpura, Tehsil Sarda, Distt. Udaipur (Raj.).

2. Dixit Patidar S/o Ranchhod Patidar,, Aged About 27 Years, Village And Post Surwaniya, Tehsil Banswara, Distt. Banswara (Raj.).

3. Dilip Masani S/o Shri Valeng Mansanz,, Aged About 30 Years, Masani Mohalla Ganesh Chowk, Chheench, Education, Distt. Banswara (Raj.).

4. Manisha Patel D/o Shri Ram Lal Patel W/o Shri Chandu Lal Patel,, Aged About 26 Years, Village And Post Sulai, Tehsil Kherwara, Distt. Udaipur (Raj.).

5. Mukesh Teli S/o Shri Heera Lal Ji,, Aged About 29 Years, Village Araniya, Post Dewad, Tehsil Pratapgarh, Distt. Pratapgarh (Raj.).

6. Mahipal Sharma S/o Shri Natvar Lal Sharma,, Aged About 28 Years, Village And Post Surwaniya, Tehsil Banswara, Distt. Banswara (Raj.).

7. Padamji Patidar S/o Shri Rupeng Patidar,, Aged About 28 Years, Village Torna, Post Asan, Tehsil Garhi, Distt. Banswara (Raj.).

8. Vikas Kumar S/o Shri Ratan Lal,, Aged About 28 Years, Village Palsiya, Post And Tehsil Khrwara, Distt. Udaipur (Raj.).

9. Deepak Bharti S/o Shri Prahlaad Bharti,, Aged About 30 Years, Village Nandor, Tehsil Sagawara, Distt. Dungarpur (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through Its Principal Secretary Panchayati Raj Deparmtent, Govt. Secretariat, Jaipur (Raj.).

2. The Director Elementary Education, Rajasthan, Bikaner.

----Respondents S.B. Civil Writ Petition No. 12858/2018

1. Mahesh Chandra Patidar S/o Shri Ramesh Chandra Patidar, Aged About 26 Years, Village And Post Jhadas,

(4 of 16)

Tehsil Gahri, Distt. Banswara (Raj.)

2. Dinesh Chand Suthar S/o Shri Kamla Shankar Ji, Aged About 25 Years, Village And Post Gogla, Tehsil Jhadol (P.h.), Distt. Udaipur (Raj.)

3. Ishwar Lal Rebari S/o Hajari Lal Rebari, Aged About 24 Years, Village And Post Ramgarh, Tehsil Aspur, Distt. Dungarpur (Raj.)

4. Nilesh Kumar Sharma S/o Shri Mani Lal Sharma, Aged About 30 Years, Village And Post Madalda, Tehsil Garhi, Distt. Banswara (Raj.)

----Petitioners Versus

1. State Of Rajasthan, Through Its Principal Secretary Panchayati Raj Department, Govt. Secretariat, Jaipur (Raj.)

2. The Director, Elementary Education, Rajasthan, Bikaner

----Respondents S.B. Civil Writ Petition No. 12860/2018

1. Mahipal Sharma S/o Shri Natvar Lal Sharma, Aged About 28 Years, Village And Post Surwaniya, Tehsil Banswara, Distt. Banswara (Raj.).

2. Gopal Kumar Darji S/o Shri Dinesh Kumar Darji,, Aged About 26 Years, Village And Post Tokar, Tehsil Semari, Distt. Udaipur (Raj.).

3. Vikas Kumar S/o Shri Ratan Lal,, Aged About 28 Years, Village Palsiya, Tehsil And Post Khrwara, Distt. Udaipur (Raj.).

4. Dilip Masani S/o Shri Valeng Mansani,, Aged About 30 Years, Masani Mohalla Ganesh Chowk, Chheench, Education, Distt. Banswara (Raj.).

5. Dixit Patidar S/o Ranchhod Patidar,, Aged About 27 Years, Village And Psot Surwaniya, Tehsil Banswara, Distt. Banswara (Raj.).

6. Naresh Kumar Patel S/o Shri Gautam Ji Patel,, Aged About 26 Years, Village And Post Veerpura, Tehsil Sarda, Distt. Udaipur (Raj.).

7. Manisha Patel D/o Ram Lal Patel, W/o Chandu Lal Patel,, Aged About 26 Years, Village And Post Sulai, Tehsil Kherwara, Distt. Udaipur (Raj.).

(5 of 16)

----Petitioners Versus

1. The State Of Rajasthan, Through Its Principal Secretary Panchayati Raj Department, Govt. Secretariat, Jaipur (Raj.).

2. The Director Elementary Education, Rajasthan, Bikaner.

----Respondents S.B. Civil Writ Petition No. 14244/2018

1. Samana Lal Kumawat S/o Shri Laxminarayan Kumawat, Aged About 27 Years, Village And Post Achnara, Tehsil Arnod, Distt. Pratapgarh (Raj.).

2. Bheru Lal Nayak S/o Shri Shanti Lal Nayak Ji, Aged About 30 Years, Village Mungana, Post Mungana, Tehsil Dhariyawad, Distt. Pratapgarh, (Raj.)

3. Bhagawati Lal Nayak S/o Shri Mani Lal Nayak, Aged About 26 Years, Village Mungana, Post Mungana, Tehsil Dhariyawad, Distt. Pratapgarh (Raj.)

4. Gopal Patidar S/o Shri Kanti Lal Patidar, Aged About 31 Years, Village/post Chikhli, Tehsil Chikhli, Distt. Dungarpur (Raj.)

----Petitioners Versus

1. The State Of Rajasthan, Through Its Principal Secretary, Panchayati Raj Department, Govt. Secretariat, Jaipur (Raj.)

2. The Director Elementary Education, Rajasthan, Bikaner

----Respondents S.B. Civil Writ Petition No. 585/2019 Vikas Bhoi S/o Shri Shanker Lal Bhoi, Aged About 34 Years, R/o Upla Bhoiwara, Tehsil And District Banswara (Raj.).

----Petitioner Versus

1. The State Of Rajasthan, Through Its Principal Secretary, Panchayati Raj Department, Govt. Secretariat, Jaipur (Raj.).

2. The Director Elementary Education, Rajasthan, Bikaner.

----Respondents

(6 of 16)

For Petitioner(s) : Mr. Vigyan Shah through V.C.

Dr. Nikhil Dungawat.

For Respondent(s) : Mr. Pankaj Sharma, AAG with Mr. Dhairyaditya Rathore.

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

20/09/2022

These writ petitions have been filed by the petitioners, who

belong to OBC category of Tribal Sub Plan ('TSP') Area seeking to

question the validity of Clause 9.4 of the advertisement dated

31.07.2018 for the recruitment on the post of Teacher Grade-III

Level-1 & Level-2 in different subjects, whereby they have not

been accorded relaxation in minimum qualifying marks required

for appointment on the said post.

It is, inter alia, indicated in the writ petitions that the subject

recruitment is governed by provisions of the Rajasthan Panchayati

Raj Act, 1994 ('the Act of 1994') and Rajasthan Panchayati Raj

Rules, 1996 ('the Rules of 1996'). The qualifications for the post of

Teacher Grade-III Level 1 & 2, have been indicated in Rule 266 of

the Rules of 1996, which, inter alia, provides the qualification as

laid down by the National Council for Teacher Education ('NCTE')

under the provisions of Section 23(1) of the Right to Children to

Free and Compulsory Education Act, 2009 ('the Act of 2009') from

time to time.

It is indicated that NCTE has prescribed minimum

qualifications for a person to be eligible for appointment as a

Teacher vide notification dated 23.08.2010, which came to be

amended by notification dated 29.07.2011. It is claimed that the

(7 of 16)

notification dated 29.07.2021 provides relaxation upto 5% in the

qualification marks to the candidates belonging to reserved

categories such as SC/ST/OBC/PH.

It is then submitted that even in Pre Teachers Education Test

('PTET'), 5% relaxation is granted in the minimum eligibility marks

in the basic academic qualification to the reserved category

candidates.

Submissions have been made that the respondents while

issuing the advertisement dated 31.07.2018 though made

reference to the notification dated 23.08.2010 and 29.07.2011,

while indicating the minimum educational and professional

qualifications, while providing for relaxation, the same has been

confined to SC/ST/PH category.

It is submitted that as Clause 11.2(iii) of the advertisement

indicated that there is no reservation for OBC category candidates

in TSP Area, the petitioners had to apply as TSP General category

candidates.

It is indicated that the State Government vide notification

dated 04.07.2016, issued under Article 244(1) of the Constitution

of India provided that 45% vacancies in TSP Area shall be filled

with candidates belonging to ST category and 5% vacancies filled

from SC category candidates. The rest 50% of the vacancies

would be filled up by candidates of TSP Area belonging to any

category.

It is submitted that the petitioners, who are OBC category

candidates, who are residents of TSP Area, are otherwise eligible

in terms of the advertisement, for lack of relaxation in terms of

(8 of 16)

the NCTE notification, are being deprived of the eligibility, which is

not justified.

Learned counsel for the petitioners made submissions that

the NCTE notification dated 29.07.2011 has allowed 5% relaxation

in the eligibility marks i.e. the qualifying marks for SC/ST/OBC/PH

category candidates and as the said notification is binding on the

State Government, it cannot deny relaxation in the eligibility

criteria to the petitioners on the pretext that though they belong

to TSP Area, as there is no reservation for OBC category, they are

not entitled for the same. It is emphasized that once the

petitioners fall within the category of OBC, they are entitled for

the relaxation as provided by NCTE notification dated 29.07.2011.

Learned counsel further emphasized that Scheduled Area is a

Class in itself and, therefore, 100% reservation is granted to local

residence, wherein other than 50% vacancies, which are reserved

for SC and ST of the Scheduled Area, 50% vacancies are reserved

for local residents only and, therefore, OBC category candidates

have to be considered within the 50% reservation and they don't

require separate reservation for seeking relaxation for

appointments.

Learned counsel, vehemently submitted that the plea sought

to be raised by the respondents regarding the petitioners being

ineligible for migration to General category for lack of eligibility, is

baseless, in view of judgment in Vikas Sankhala & Ors. v. Vikas

Kumar Agarwal & Ors.: (2017) 1 SCC 350.

Further reliance has been placed on State of U.P. & Ors. v.

Shiv Kumar Pathak & Ors.: (2018) 12 SCC 595; Ram Sharan

Maurya & Ors. v. State of U.P. & Ors.: 2020 SCC Online SC 939

(9 of 16)

and National Federation of the Blind & Anr. V. State of Raj. &

Ors.: DBCW No.4907/2019, decided on 22.07.2019.

Learned counsel for the respondent-State vehemently

opposed the submissions. It was submitted that the petitioners in

all the writ petitions have obtained less than 50% marks in

graduation and were thus ineligible on account of Clause 9.3 of

the advertisement dated 31.07.2018. It is emphasized that the

petitioners, who are OBC category candidates cannot compete

against unreserved posts of TSP Area at the strength of relaxation

in regard to eligibility of having minimum 50% marks in

graduation, inasmuch as, no posts have been reserved for OBC

category in TSP Area, which aspect has been clearly indicated in

the advertisement. Reference has been made to Clauses 4(iv),

11.1(ix), 11.2(iii) and 11.2(x), of the advertisement dated

31.07.2018. It was emphasized that as there is no reservation

provided for OBC category, the petitioners are not entitled to any

sort of relaxation and as such the petitioners ought to have the

eligibility without relaxation.

Learned counsel laid emphasis that the plea raised about the

candidates of OBC category being entitled to relaxation in the

Non-TSP Area and being deprived of relaxation in TSP Area, is

misconceived, inasmuch as, as the reservation for OBC category

has been provided in the Non-TSP Area, on that count alone, they

are not entitled to relaxation. It was submitted that even in the

Non-TSP Area, the petitioners are not entitled to be

considered/migrated against the unreserved posts.

Learned counsel also attempted to make submissions that

only Clause 9.4 has been questioned and various other Clauses as

(10 of 16)

noticed hereinbefore, which specifically deny availability of

relaxation to OBC category candidates in TSP Area for competing

against unreserved posts, have not been challenged. The

petitioners are not entitled to seek any relief in regard to the

notification dated 27.09.2011. It was submitted that the

relaxation granted therein doesn't override the structure of

reservation in TSP Area and cannot override the reservation policy

of the State, which is in consonance with the law laid down by

Hon'ble Supreme Court. It is prayed that the writ petitions filed by

the petitioners may be dismissed.

Reliance has been placed on Gaurav Pradhan & Ors. v. State

of Raj. & Ors.: (2018) 11 SCC 352 and Deepa E.V. v. Union of

India & Ors.: (2017) 12 SCC 680.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The advertisement dated 31.07.2018 (Annex.-5 in SBCW No.

12859/2018), has been issued by the State under the Act of 1994,

the Rules of 1996 and the Rajasthan Scheduled Areas

Subordinate, Ministerial and Class-IV Service (Recruitment and

Other Service Conditions) Rules, 2014 ('the Rules of 2014'), for

TSP Area. The advertisement, at the outset in Clause 4 of the

advertisement, indicated that as no posts for OBC/MBC category

have been reserved in TSP Area, the candidates belonging to the

said category, would not be entitled for relaxation in the upper

age limit/educational qualification and they can only apply as

General category candidates.

The requisite qualifications in terms of the notification dated

23.08.2010 and 29.07.2011 were indicated, inter alia, requiring at

(11 of 16)

least 50% marks at the graduation level. Under Clause 9.4, it was

inter alia indicated that 5% relaxation would be available to

candidates belonging to SC/ST/PH category candidates in the

educational qualifications. In Clause 11.2 relating to reservation, it

was reiterated that as in TSP Area of the State, no posts are

reserved for OBC and MBC and, therefore, the candidates can only

apply as General category candidates. The recruitment was based

on marks obtained by the candidates at REET/RTET and at

graduation, based on which, merit was to be prepared.

The petitioners, who belong to the OBC category, in terms of

the advertisement and the stipulations made therein, filed online

applications with indication of their category as 'General',

whereafter, the present petitions have been filed seeking to

question the non-grant of relaxation to the petitioners in terms of

the notification issued by NCTE dated 29.07.2011.

The relevant Clause of the notification dated 27.09.2011,

inter alia, reads as under:-

"(ii) Reservation Policy:

Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories, such as SC/ST/OBC/PH."

A perusal of the above stipulation would reveal that

relaxation upto 5% in the qualifying marks have been directed to

be allowed to the candidates belonging to reserved categories,

such as SC/ST/OBC/PH.

It would be relevant at this stage to notice that the Rules of

2014, which deals with the recruitment and other service

conditions for the Scheduled Area, under Rule 8 provides for

reservation of vacancies for SC/ST, Rule 9 provides for reservation

(12 of 16)

of vacancies for Women, Rule 10 provides for reservation of

vacancies for Outstanding Sportspersons and Rule 11 provides for

reservation of vacancies for Ex-serviceman. The Rules don't

envisage any reservation for candidates belonging to OBC

category.

Further, the notification dated 04.07.2016 (Annex.-14)

issued by the State under Article 244(1) of the Constitution of

India, inter alia, provides as under:-

"fofufnZ"V vuqlwfpr {ks=ksa esa] jkT; lsokvksa dks NksM+dj vU; lHkh jktdh; lsokvks ds inksa ij lh/kh HkrhZ }kjk Hkjh tkus okyh fjfDr;ka dh 45 izfr'kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tutkfr;ksa ,oa 5 izfr'kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tkfr;ksa ds vH;fFkZ;ksa ls Hkjh tk;saxhA vuqlwfpr {ks= dh "ks'k 50 izfr'kr fjfDr;ksa ij fdlh tkfr ;k oxZ ds vuqlwfpr {ks= ds vH;FkhZ dk ;ksX;rk ds vk/kkj ij ohj;rk Øe esa fu;ekuqlkj p;u fd;k tk;sxk] pkgs og vuqlwfpr tkfr ;k vuqlwfpr tutkfr ;k vU; fdlh oxZ ls lacaf/kr gksA"

A perusal of the above stipulation in the notification dated

04.07.2016 reveals that 45% vacancies have been reserved for

Scheduled Tribes of Scheduled Area, 5% for Scheduled Castes of

Scheduled Area and for the rest 50% of the vacancies of the

Scheduled Area, it has been provided that candidates belonging to

any caste or class of Scheduled Area based on merit, would be

selected even if they belong to ST or SC or any other class. As

such, apparently while the entire vacancies for the Scheduled

Area, have been confined to candidates belonging to Scheduled

Areas, the reservation therein has been provided only to

candidates belonging to ST and SC categories and rest of the

reservations under the Rules of 2014 are horizontal reservations.

The language of the notification dated 29.07.2011 quoted

hereinbefore providing for reservation policy and relaxation

therein to the extent of 5% is very specific, wherein the relaxation

(13 of 16)

in the qualifying marks has been allowed to the candidates

belonging to reserved categories, which have been illustrated by

indicating SC/ST/OBC/PH.

The emphasis in the notification, which applies to

recruitments throughout the country, essentially is not with regard

to providing the relaxation to the four categories indicated therein,

in fact the emphasis is on providing relaxation to candidates

belonging to the 'reserved categories' i.e. wherever under the

applicable Service Rules, reservation has been provided for the

recruitment of Teachers, only those who have been provided

reservation in the recruitment, they would be entitled to relaxation

in the qualifying marks. By the said notification, the relaxation

de hors the reserved category has not been conferred on the said

four categories i.e. SC/ST/OBC/PH. For seeking relaxation under

the notification the candidate has to fall in the 'reserved category'.

The above aspect came up for consideration before Division

Bench in Bharti Upadhayay v. State of Raj. & Ors.: DBSAW

No.1122/2017, decided on 10.08.2018, wherein it was laid down

as under:-

"For proper adjudication of the case, we need to refer to the Notification dated 29.07.2011 with respect to the reservation policy. The same reads as under:-

"(ii) Reservation Policy :

Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to the reserved categories such as SC/ST/OBC/PH."

A perusal of the above shows that 5% relaxation is granted to the reserved categories. The language of the provisions for relaxation as reproduced above provides relaxation to the candidates belonging to the reserved categories such as S.C/S.T./O.B.C./P.H. The words 'such as' indicate that what follows thereafter are only illustrative and not exhaustive, as held by the Hon'ble Supreme Court in the case of Royal Hatcheries Pvt. Ltd. Vs. State of Andhra Pradesh and another etc. reported in AIR 1994 Supreme Court 666. Thus, the

(14 of 16)

categories S.C./S.T./ O.B.C./P.H. are illustrative and mentioned for 'example' only. Whereas, relaxation requires to be given to the candidates "belonging to the reserved categories" and 'widow category' is a reserved category. The reservation policy as per the Notification dated 29.07.2011 allows relaxation upto 5% in the qualifying marks to the reserved categories. Admittedly, the widow category is also a reserved category and therefore, cannot be left out of such categories."

(emphasis supplied)

In that view of the matter, apparently as the notification is

confined to 'reserved categories', for seeking the relaxation under

the notification, there has to be a reservation for the category

seeking relaxation else they would not be entitled to any

relaxation on the strength of their belonging to a category, which

otherwise enjoys reservations under other recruitments.

Though plea has been raised that the action of the

respondents is creating an anomalous situation, wherein the same

candidate is entitled to get relaxation in Non-TSP Area and is

being deprived of the relaxation in the TSP Area, the plea is

unsustainable. The reason is obvious, inasmuch as, in Non-TSP

Area, reservation is provided to OBC category candidates and,

therefore, once the reservation is provided, in terms of the

notification dated 29.07.2011, which provides for relaxation to

'reserved categories', the candidates belonging to OBC, are also

entitled to relaxation.

The emphasis laid on the fact that as the petitioners have

been granted relaxation while acquiring B.Ed. and if they are not

granted relaxation in the extent recruitment, their qualification

would be rendered redundant, cannot by itself be a reason to

claim relaxation, inasmuch as, the very fact that a minimum

eligibility condition has been indicated for recruitment, merely

because on account of such condition, the candidates, who have

(15 of 16)

acquired qualification based on relaxed norms are rendered

ineligible, cannot be a reason to seek relaxation, inasmuch as, the

recruitment norms are not dependent on the norms meant for

acquiring qualification.

The submission made that as the Scheduled Area is a Class

in itself and 100% vacancies are to be filled up by candidates

belonging to Scheduled Area, it should be deemed that the

candidates belonging to OBC category being a part of 50%

vacancies meant for residents of Schedules Area, the same by

itself is a reservation, cannot be countenanced. Besides the fact,

confining the 50% vacancies for candidates belonging to

Scheduled Area can't by itself be termed as reservation, if benefit

of relaxation was to be provided in terms of notification dated

29.07.2011 by treating the same as reservation, all the residents

of the area would be entitled to such relaxation.

The submissions made on part of the respondents based on

the law that those belonging to reserved category, based on

relaxation, can't seek migration to the General category,

apparently would have no application to the present

circumstances, inasmuch as, when admittedly, no reservation is

available for candidates belonging to OBC category, consequently,

as they are not part of reserved category and, therefore, not

entitled to relaxation, there doesn't arise any question of their

migrating to General category.

In view of the above, the judgment in the case of Vikas

Sankhala (supra), which has been cited on the aspect of

migration, would have no application.

(16 of 16)

Attempt has been on part of the petitioners, to claim that

50% vacancies, which are to be filled up by candidates of the

Scheduled Area cannot be termed as meant for 'General category'

essentially to get out of the submissions made on part of the

respondents regarding bar in migration for those having enjoyed

the relaxation, which plea also apparently has no basis, inasmuch

as, the General category essentially means, which is open to all,

irrespective of the caste/class and only on account of the fact that

in the present recruitment, the same has been confined to

candidates belonging to Scheduled Area, cannot change the

character of the said posts from General category to Reserved

category.

Qua the binding nature of the notification of 2011, for which,

reliance has been placed on judgment in the case of Ram Sharan

Maurya (supra), there is no dispute on the said aspect. The

judgments in the case of Shiv Kumar Pathak (supra) and National

Federation of the Blind (supra) in the circumstances of the case,

have no application to the facts of the present cases.

In view of the above discussion, as the notification dated

29.07.2011, is confined to reserved categories and, there is no

reservation provided to candidates belonging to OBC category in

the present recruitment, the said notification, has no application in

the case of the petitioners and they have rightly been denied

relaxation in the qualification.

Consequently, there is no substance in the writ petitions, the

same are, therefore, dismissed.

(ARUN BHANSALI),J PKS/-

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