Rajasthan High Court - Jodhpur

Hari Prasad Patidar vs State Of Rajasthan on 1 December, 2023

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Writ Petition No. 15501/2023

Rahul Lohar S/o Shri Devi Lal Lohar, Aged About 24 Years, R/o
Village And Post Poliyali, Tehsil Jhadol, District Udaipur,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat, Jaipur.

2. District Education Officer (Head Quarters), Udaipur.

3. The Chairman, Rajasthan Staff Selection Board, Jaipur.
----Respondent
Connected with

S.B. Civil Writ Petition No. 16319/2023

Sanjay Kumar Salgiya
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 11657/2023

Chetan Patidar
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 14758/2023

Jignesh Prajapat
----Petitioner
Versus
The State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 14762/2023

Divya Panwar
----Petitioner
Versus
State Of Rajasthan
----Respondent

(Downloaded on 02/12/2023 at 08:40:43 PM)
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S.B. Civil Writ Petition No. 14765/2023

Jayprakash Tamboli
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 14846/2023

Jitendra Thakore
----Petitioner
Versus
The State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 14848/2023

Kishor Kumar
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 14918/2023

Hinal Patidar
----Petitioner
Versus
State Of Rajasthan
----Respondent
S.B. Civil Writ Petition No. 14919/2023
Chirag Kumar Sharma
----Petitioner
Versus
State Of Rajasthan
----Respondent
S.B. Civil Writ Petition No. 14920/2023
Rajdeepika Sisodiya
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 15765/2023

Priya Patidar

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----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 15918/2023

Kanhaiya Lal Choudhary
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 16887/2023

Pratik Purohit
----Petitioner
Versus
Rajasthan Staff Selection Board, Durgapura
----Respondent

S.B. Civil Writ Petition No. 17228/2023

Prafulla Kumar
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 16494/2023

Hari Prasad Patidar
----Petitioner
Versus
State Of Rajasthan
----Respondent

S.B. Civil Writ Petition No. 10313/2023

Kuldeep Singh Sisodiya
----Petitioner
Versus
State Of Rajasthan
----Respondent

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S.B. Civil Writ Petition No. 14847/2023
Manisha Tamboli
----Petitioner
Versus
State Of Rajasthan
----Respondent
S.B. Civil Writ Petition No. 14881/2023
Deepika Kunwar Chundawat
----Petitioner
Versus
State Of Rajasthan
----Respondent

For Petitioner(s) : Dr. Pratishtha Dave
Mr. Lokesh Mathur
Mr. VLS Rajpurohit
Mr. OP Sangwa
Mr. Tanwar Singh
Mr. Jai Kishan Rankawat
For Respondent(s) : Mr. Pankaj Sharma, AAG a/w Mr. Rishi
Soni
Mr. Vinit Sanadhya a/w Mr. Priyanshu
Gopa

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reportable

Reserved on 06/11/2023, 07/11/2023, 09/11/2023 & 28/11/2023 Pronounced on 01/12/2023

1. Since all the instant petitions involve a common controversy

though with marginal variation in the contextual facts, therefore,

for the purposes of the present analogous adjudication, the facts

and the prayer clauses are being taken from the above-numbered

S.B. Civil Writ Petition No.11657/2023, while treating the same as

(5 of 22) [CW-15501/2023]

a lead case; thus, the rival submissions of the parties and the

observations of the Court, in the present order, would also be

based, particularly, on the factual matrix of the lead case.

1.1 The prayer clauses of SBCWP Nos.11657/2023 &

14758/2023 read as under:-

SBCWP No.11657/2023:

"It is, therefore, most respectfully prayed that your lordship may graciously be pleased to accept and allow this Writ petition and -

i. Issue a writ order or direction in the nature thereof thereby direct the respondents to consider the R.E.E.T. - 2022 eligible certificate for O.B.C. category and consider the candidature in general post is already qualified of petitioners and given appointment to the petitioners on the post of Teacher Grade-III, Level-I and Level-II in T.S.P. area under advertisement NO.12/2022 and 13/2022 dated 16.12.2022 (ANN-1) in the larger interest of justice.

ii. Issue any other writ, order or direction, which this Hon'ble Court deems fit and proper, may kindly be passed in favour of the petitioners.

iii. Cost of the writ petition be also awarded in favour of the petitioners."

SBCWP No.14758/2023:

"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and i. By an appropriate writ, order or direction the respondent be directed to consider the candidature of the petitioner in pursuance to Notification no.13/2012 dated 16.12.2022 (Annexure-3) for the post of Teacher Grade III Level II in subject English and grant the appointment to the petitioner on the post of Teacher Grade III Level II in subject English with all consequential benefits if, petitioner comes into merit.

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ii. By an appropriate writ, order or direction the impugned final selection order dated 15.09.2023 (Annexure-12) may kindly be quashed and set aside to the extent of the not including the name of the petitioner in final selection list and afresh selection list be issued after including the name of the petitioner.

iii. Additionally by an appropriate writ, order or direction, the respondents may be directed to provide reservation in the recruitment to post of Primary School Teacher (General) (Level-2) to OBC Candidate who belong to TSP Area; and iv. Any other appropriate order or direction, which this Hon'ble Court deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

2. Brief facts of the case, as placed before this Court by

learned counsel of the petitioners, are that the respondents issued

advertisements no. 12/2022 & 13/2022 dated 16.12.2022 for

recruitment of Upper Primary School Teacher Level-I and II. The

petitioners belong to O.B.C. NCL Category and passed REET-2022

under the said category.

2.1. Thereafter, the petitioners filled the online application forms

under the O.B.C. NCL Category for the post in question. The

respondents issued the admit cards for the examination. After

conducting the examination, the respondents declared the results

of the candidates on 26.05.2023 and 09.06.2023, the respondents

issued score cards to the petitioners and the petitioners obtained

more marks than the last cut-off of general category.

2.2. Subsequently, at the time of documents verification, the

respondents verbally rejected the candidature of the petitioners on

the ground that the petitioners did not qualify REET-2022 under

the Unreserved Category, rather passed REET-2022 under the

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Reserved Category. Thus, the present petitions have been

preferred claiming the afore-quoted reliefs.

3. Learned counsel for the petitioners submitted that the

respondents wrongly refused to consider the REET-2022

certificates of the petitioners, and that, the petitioners obtained

more marks than the Unreserved Category candidates for the post

in question, and therefore, the action of the respondents is

violative of the Constitution of India.

3.1. Learned counsel further submitted that in the advertisement

in question, reference of the Circular dated 16.12.2020 issued by

the Government of Rajasthan was made, whereby the relaxation

in marks of REET-2021 and REET-2022 was provided to the

candidates belonging to different categories as mentioned in the

circular, and as per the said circular, candidates belonging to EWS/

OBC were entitled to be declared successful in REET-2021/REET-

2022, even if such a candidate is able to obtain 55% marks in the

said examination(s), whereas general qualifying is 60% marks in

REET Examination.

3.2. It was also submitted that once the relaxation to the extent

of 5% was granted to the petitioners and they were allowed to fill

the application forms against the vacancies of TSP-General

Category, now at this stage, the respondents ought not have

rejected the candidature of the petitioners, on count of non-

availability of the post in the TSP area for the OBC Category.

Therefore, as per learned counsel, rejection of the petitioners'

candidature on the ground that the petitioners have not secured

60 % marks in the REET examination.

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3.3. Learned    counsel     further      submitted          that    the   denial   of

appointment to the petitioners on the ground that on count of

availing the aforementioned relaxation in the marks of the REET

Examination, they are not entitled for migration to the unreserved

category, which is totally unjustified in the eye of law.

4. On the other hand, Mr. Pankaj Sharma, learned Additional

Advocate General assisted by Mr. Rishi Soni; Mr. Vinit Sanadhya

with Mr. Priyanshu Gopa, appearing on behalf of the respondents,

while opposing the aforesaid submissions made on behalf of the

petitioners, submitted that as per the notification dated

04.07.2016 issued by the State, the Scheme of the reservation in

TSP area is to the effect that 45% seats are reserved for the

aspirants from the Schedule Tribe (ST) Category and 5% seats are

reserved for the aspirants from the Schedule Caste (SC) Category;

whereas, the remaining 50% are meant for the unreserved

category candidates, which are to be filled from amongst the

residents of the TSP area, irrespective of their caste/category.

4.1. It was further submitted that the candidates belonging to

reserved category do not enjoy any reservation in the TSP Area

and they are not entitled for any sort of relaxation so far as the

recruitment in question is concerned.

4.2. It was also submitted that the issue in the present case is no

more res integra in view of the judgment rendered by the Hoin'ble

Apex Court in the case of Deepa E.V. Vs Union of India & Ors.

(2017) 12 SCC 680. Subsequently also, the State Government

issued Circular dated 26.07.2017, wherein it was clearly stated

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that the candidates who have availed the concession(s) of the

reserved category cannot be migrated to the unreserved category.

4.3. It was further submitted that as per the Circular dated

24.06.2018, candidates belonging SC/ST/OBC who have been

extended the concession, except in the fee, are not eligible for

being migrated to the unreserved vacancies. It was also submitted

that a candidate of reserved category in TSP area has to compete

against the posts meant for the unreserved category, and such

candidates can be considered eligible for the posts of unreserved

category only in case such candidate belonging to the reserved

category has not been extended any relaxation/concession, except

in the fee.

4.4. It was further submitted that the circular dated 26.07.2017

is still holding the field, and the same was also taken into

consideration by the Hon'ble Apex Court in the judgment rendered

in the case of Gaurav Pradhan & Ors. Vs State of Rajasthan &

Ors. (2018) 11 SCC 352.

4.5. It was also submitted that as per the Clause 8 of the

advertisement in question, under the heading of Special

Information as given under Point No.3, for the purpose of selection

against the posts of Unreserved Category, only those candidates

who have not been extended any relaxation except that of the

fees meant for such category, shall be considered.

4.6. It was further submitted that the Table provided under the

advertisement in question clearly provided that for unreserved

posts, the eligibility is 60% marks in REET- 2022, and in case of

the posts reserved for ST category, the same is 55% in Non-TSP

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area and 36 % in TSP area. Thus, as per learned counsel, it is

clear that for the purpose of filling the unreserved posts, the

eligibility for the candidates of TSP as well as Non-TSP areas is

60% marks in REET-2022, and hence, the entire foundation of the

present petitions is misconceived, and reflects lack of

understanding of the parameters prescribed by the State in the

relevant circulars and advertisement.

4.7. In support of such submissions, learned counsel relied upon

the following judgments:

(a) Government (NCT) of Delhi & Ors. Vs Pradeep Kumar & Ors.

(2019) 10 SCC 120; and

(b) Samarath Mal Kumhar & Ors. Vs The State of Rajasthan &

Anr. (S.B. Civil Writ Petition No. 12859/2018 decided on

20.09.2022 by a Coordinate Bench of this Hon'ble Court).

5. In the rejoinder arguments, the learned counsel for the

petitioners submitted that as per the aforementioned Circular

dated 26.07.2017, denial of migration of the candidates from

reserved category to unreserved category in TSP area clearly runs

contrary to the judgment rendered by the Hon'ble Apex Court in

case of Vikas Sankhala & Ors. Vs Vikas Kumar Agarwal &

Ors. (2017) 1 SCC 350. Relevant portion of the said judgment is

reproduced as hereunder:

"60. Having regard to the respective submissions noted above, first aspect that needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be so on the premise that para 9(a) dealing with such relaxation in TET marks forms part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or

(11 of 22) [CW-15501/2023]

analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in guidelines/notification dated February 11, 2011. These guidelines pertain to conducting of TET. Basic features whereof have already been pointed out above. Even para 9 which provides for concessions that can be given to certain reserved categories deals with 'qualifying marks' that is to be obtained in TET examination. Thus, a person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is marks in TET. So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally get less marks under this head. We like to demonstrate it with an example. Suppose a reserved category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14 marks in recruitment process. Thus, on the basis of TET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, "level playing field" is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks. 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. 61. Once this vital differentiation is understood, it would lead to the

(12 of 22) [CW-15501/2023]

conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of circular dated May 11, 2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc., except on fee and age".

5.1 It was further submitted that there is nothing in the

advertisement in question that the marks of REET shall be

counted/added for the purpose of preparation of final list in

connection with the recruitment in question. As per learned

counsel, the marks secured in the REET is merely an eligibility

condition, and therefore, the Judgment of Deepa E.V. (Supra)

and Gaurav Pradhan (Supra) relied by the respondents is not

applicable in the present case, because the issue raised herein

would not have any adverse impact upon the selection process in

question.

5.2. It was also submitted that if a candidate obtains relaxation in

the recruitment examination then only such a relaxation would

deny reserved category candidates to migrate to unreserved

category. Therefore, the respondents have made assertions totally

contrary to their own Circular dated 16.12.2020.

5.3. It was further submitted that a Coordinate Bench of this

Hon'ble Court at Jaipur Bench in the case of Rajesh Kumar

Yadav Vs State of Rajasthan & Ors. (S.B.C.W.P. No.

(13 of 22) [CW-15501/2023]

15541/2022, decided on 19.07.2023) observed that the

candidates belonging to the reserved category and have scored 82

marks out of 150 marks in REET-2022, are entitled to be declared

successful, thereby enabling them to secure the pass certificate of

REET.

5.4. It was also submitted that the words "recruitment process"

will not include any stage prior to issuance of advertisement and

conducting of the examination by way of preparation of the merit

list on the basis of written examination and interview. In support

of such submission, learned counsel relied upon the judgment

rendered by a Coordinate Bench of this Hon'ble Court in the case

of Sumit Sharma Vs State of Rajasthan (S.B.C.W.P. No.

13821/2020, decided on 06.12.2022).

Relevant portion of the said judgment is reproduced as

hereunder:-

" This Court further finds that the State Government has also issued a circular dated 26.07.2017, wherein it has been provided that if a candidate belonging to SC/ST/OBC has not availed any of the special concessions, such as in age limit, marks, physical fitness in the recruitment process, which are available to the candidates belonging to these categories, except the concession of fees and then if such candidate secures more marks than the marks obtained by the last unreserved category selected candidate, then such a candidate belonging to SC/ST/OBC, is to be counted against the unreserved category and not the vacancies reserved for the SC/ ST/BC, as the case may be.

This Court finds that in the present case, clearing/passing of NET/SLET/SET, is a condition of eligibility for appointment as Assistant Professor and without having such qualification, a person is not eligible for appointment, however, the method of appointment of Assistant Professor and the basis of preparation

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of merit is altogether different and as such, it cannot be inferred that only by getting relaxation, while clearing the NET/ SLET/SET, a person from reserved category will always remain as a candidate of reserved category and even if, he secures his merit position on the basis of his performance in the selection process and he secures higher marks or cut off marks equal to the unreserved category candidate, then still he will be considered for reserved category."

6. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgments cited at the Bar.

7. This Court observes that the respondents issued the

advertisement in question for Upper Primary School Teacher Level-

I and II, the petitioners belongs to O.B.C. NCL Category and

passed REET-2022 under O.B.C. NCL Category. Thereafter, the

petitioners filled the online application form under the O.B.C. NCL

Category for the post in question. After the examination were

conducted, the respondents declared results of the candidates

including the present petitioners, and the respondents also issued

score cards to the petitioners, as per which, the petitioners

obtained more marks than the last cut off of the unreserved

category. Subsequently, the respondents verbally rejected the

candidature of the petitioners on the ground that the petitioner did

not qualify REET-2022 under Unreserved Category, and that, they

have passed the REET-2022 under the Reserved Category.

8. This Court further observes that the petitioners participated

in the examination in question under the reserved category, while

availing certain concession(s) meant for the reserved category,

and therefore, they cannot be considered under the unreserved

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category, so far as the recruitment process in question is

concerned.

8.1. This Court also observes that after the judgment of the

Deepa E.V. (Supra), the State Government issued the Circular

dated 26.07.2017 regarding the candidates belonging to the

reserved category, who cannot be considered under the

unreserved category, if they have availed the concession(s) meant

for the reserved category.

Relevant portion of the judgment rendered in Deepa E.V.

(Supra) is reproduced as hereunder:-

"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. In other words, when a relaxed standard is applied in selecting 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".

The said Circular dated 26.07.2017 is reproduced as

hereunder:

"Circular Subject: Treatment to be given to the candidates belonging to the SC/ST/BC who are selected against reserved category vacancies on the basis of their merit.

In supersession of this department's Circular of even number dated 4-3-2014 on the abovementioned subject, the matter has been examined in consultation with the Law Department in the light of the judgment passed by the Hon'ble Supreme Court in Deepa E.V. v.

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Union of India, The following instructions are hereby issued for the guidance of all appointing authorities:

(a) If a candidate belonging to SC/ST/BC has not availed of any of the special concessions such as in age-limit, marks, physical fitness, etc. in the recruitment process, which are available to the candidates belonging to these categories, except the concession of fees, and he secures more marks than the marks obtained by the last UR category candidate who is selected, such a candidate belonging to the SC/ST/BC shall be counted against the UR category vacancies and not the vacancies reserved for the SC/ST/ BC, as the case may be.

(b) If any SC/ST candidate gets selected against the UR 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 an SC/ST candidate will be treated as an SC/ST candidate, as the case may be, for all further services 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.

(c) The SC/ST/BC category candidates who get selected against UR category vacancies on the basis of their merit without availing of any of the special concessions which are available to the candidates belonging to those categories, except the concession of fees, will not be counted against the posts reserved for these categories when it comes to the question of determining the total number of posts occupied by the candidates of these categories in the particular post/cadre."

9. At this juncture, this Court considered it appropriate to

reproduce the relevant portion of the judgment rendered by the

Hon'ble Apex Court in the case of Gaurav Pradhan (Supra), as

hereunder:-

"40. The Circular dated 26-7-2017 is the reiteration of the earlier position as was provided by the Circular dated 24-6-2008 quoted above. Thus, the position is now well accepted even by

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the State of Rajasthan that those candidates belonging to SC/ST/BC who have obtained concession of age are not eligible to be migrated to the unreserved vacancies. The Circular dated 24-6-2008 being very much in existence, law laid down by this Court in Deepa E.V. [Deepa E.V. v. Union of India, (2017) 12 SCC 680 : (2018) 1 SCC (L&S) 100] holds the field and the State of Rajasthan was obliged to not migrate those SC/ST/BC category candidates who are in unreserved category, who have taken concession of age.

49. 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, 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."

10. This Court also deems it appropriate to reproduce the

relevant portion of the judgment rendered by the Hon'ble Apex

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Court in the case of Government (NCT) of Delhi & Ors Vs

Pradeep Kumar & Ors. (Supra), as hereunder:-

"19.1. In Vikas Sankhala [Vikas Sankhala v. Vikas Kumar Agarwal, (2017) 1 SCC 350: (2017) 1 SCC (L&S) 203] , the Court considered the implication of the Circular dated 11-5- 2011 issued by the Department of Personnel, Government of Rajasthan (A, Gr.II) bearing Ref. No. F.7(1) DOP/A-II/99 that expressly allowed migration to the unreserved category irrespective of any concession availed by the candidate of the reserved category if he/she had secured more marks than the last unreserved category candidate who is selected. But here the OMs dated 1-7-1998 and 4-4-2018 issued by the Department of Personnel and Training would bear consideration. Contrary to the Circular dated 11-5-2011 in Vikas Sankhala [Vikas Sankhala v. Vikas Kumar Agarwal, (2017) 1 SCC 350 : (2017) 1 SCC (L&S) 203] , the two OMs referred by Ms Divan, issued specific instructions to the effect that when a relaxed standard is applied in selecting a reserved category candidate, in age-limit, experience, qualification, additional chances in written examination, etc., such candidates will be counted against reserved vacancies."

11. The relevant portion of the judgment rendered by the

Hon'ble Apex Court in the case of Niravkumar Dilipbhai Makwana

Vs. Gujarat Public Service Commission and Ors. (2019) 7 SCC

383, is also reproduced as hereunder:-

"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

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enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the 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.

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.

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 24-6-2008 6.2. In the State, members of the 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.) payment of examination fee in case of direct recruitment.

33. The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the Respondents."

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12. This Court further observes that the petitioners after being

extended the prescribed concession(s) cannot further demand, as

a matter of right, to be considered under the unreserved category

in the recruitment process in question, as the same would also run

contrary to the judgment rendered in the cases of Deepa E.V

(Supra) and Gaurav Pradhan (Supra) as well as the Circular

dated 26.07.2017.

13. This Court further observes that in the case of Gaurav

Pradha (Supra) the Hon'ble Apex Court considered all the

previous judgments including Vikas Sankhala & Ors. (Supra) as

relied upon by the learned counsel for the petitioners.

14. This Court also observes that the State Government issued

the Circular as per the precedent law and the relevant rules as

well as the regulations, and thus, thereafter, the petitioners

cannot demand their consideration under unreserved category,

after availing the relaxation/concession of the reserved category.

15. This Court further observes that the relaxation in marks, in

the present case, was given category-wise, which in no manner,

can enable the petitioners to demand their consideration in the

unreserved category. This Court also observes that it is clear from

the advertisement in question that for the purpose of unreserved

category, the eligibility for the candidates of TSP and as well Non-

TSP areas is 60 % in REET 2022, and therefore, on that count

also, the relief as sought for cannot be granted to the petitioners

in the present petitions.

16. This Court further observes that Clause 8 of the

advertisement in question clearly stated that for the purpose of

selection against the unreserved category, only the candidates

(21 of 22) [CW-15501/2023]

belonging to the reserved category candidates, who have not

availed the benefits of relaxation/concession of the reserved

category, except in the fee, meant for such category, can be

considered against the unreserved posts.

Clause 8 of the Advertisement in question is reproduced as

hereunder:-

"8- dkfeZd ¼d&2½ foHkkx ds ifji= fnukad 26-07-2017 ds vuqlkj lkekU;

Js.kh ds inksa ds fo:) p;u gsrq vkjf{kr oxZ ¼vuqlwfpr tkfr@vuqlwfpr

tutkfr@vU; fiNM+k oxZ@vfr fiNM+k oxZ½ ds dsoy os gh vkosnd ik= gksaxs

ftUgksaus 'kqYd ds vfrfjDr vkjf{kr Js.kh ds fy;s ns; fdlh vU; fj;k;r dk

ykHk ugha mBk;k gSA"

17. This Court further observes that in the above backdrop, if the

petitioners, even after availing the relaxation/concession of the

reserved category, are considered under the unreserved category,

then it would be a clear violation of the rights and interests of the

unreserved category candidates, as per Article 16 of the

Constitution of India, wherein it was clearly stated that "There

shall be equality of opportunity for all citizens in matters relating

to employment or appointment to any office under the State".

18. This Court further observes that it is clear that the

petitioners fall under the reserved category and availed the

relaxation/concession pertaining to the examination in question,

and therefore now after declaration of their marks, they cannot be