Rajasthan High Court - Jodhpur
Kuldeep Singh Sisodiya vs State Of Rajasthan on 26 May, 2025
Author: Manindra Mohan Shrivastava
Bench: Manindra Mohan Shrivastava
[2024:RJ-JD:53225-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Special Appeal (Writ) No. 31/2024
In
S.B. Civil Writ Petition No.14881/2023
Deepika Kunwar Chundawat D/o Shri Man Singh Chundawat, Aged
About 23 Years, R/o VPO Thara, Salumber, District Udaipur,
Rajasthan.
----Appellant
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.
----Respondents
Connected With
D.B. Special Appeal (Writ) No. 1047/2023
Hinal Patidar D/o Shri Rajendra Patidar, Aged About 23 Years, R/o
Purani Abadi, Patelwara, Sangwara, District Dungarpur, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat, Jaipur.
2. District Education Officer, (Head Quarter), Dungarpur.
3. The Chairman, Rajasthan Staff Selection Board, Jaipur.
----Respondents
D.B. Special Appeal (Writ) No. 1052/2023
Rajdeepika Sisodiya D/o Shri Bhupendra Singh Sisodiya, Aged About
36 Years, R/o Village Bankora, Post Bankora, Tehsil Aspur, District
Dungarpur, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat, Jaipur.
(Downloaded on 26/05/2025 at 09:45:11 PM)
[2024:RJ-JD:53225-DB] (2 of 44) [SAW-31/2024]
2. District Education Officer, (Head Quarters), Dungarpur.
3. The Chairman, Rajasthan Staff Selection Board, Jaipur.
----Respondents
D.B. Special Appeal (Writ) No. 1086/2023
Kuldeep Singh Sisodiya S/o Shri Lal Singh Sisodiya, Aged About 34
Years, R/o Village Mandwa, Khapeda, Post Khaparda, Tehsil Dawra,
District Dungarpur, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat Jaipur.
2. The Secretary, Department Of Personnel, Government Of
Rajasthan, Secretariat, Jaipur.
3. District Education Officer (Head Quarters), Dungarpur.
4. The Chairman, Rajasthan Staff Selection Board, Jaipur.
----Respondents
D.B. Special Appeal (Writ) No. 35/2024
Manisha Tamboli D/o Shri Gopal Tamboli, Aged About 27 Years, R/o
Behind Bhumi Vikas Bank, Shastri Colony, Dungarpur, Rajastahn.
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat, Jaipur.
2. District Education Officer, (Head Quarters), Dungarpur.
3. The Chairman, Rajasthan Staff Selection Board, Jaipur
----Respondents
(Downloaded on 26/05/2025 at 09:45:11 PM)
[2024:RJ-JD:53225-DB] (3 of 44) [SAW-31/2024]
D.B. Special Appeal (Writ) No. 86/2024
Chirag Kumar Sharma S/o Shri Laxman Lal Sharma, Aged About 38
Years, R/o 192, Lalita Bhawan, Village Post Bhiluda, Tehsil Sangwara,
District Dungarpur.
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat, Jaipur.
2. District Education Officer (Head Quarters), Dungarpur.
3. The Chairman, Rajasthan Staff Selection Board, Jaipur.
----Respondents
D.B. Special Appeal (Writ) No. 91/2024
1. Chandralekha Sevak D/o Shri Ganpat Lal, Aged About 26
Years, R/o Village And Post Dewla, Dhatala, District
Dungarpur, Rajasthan.
2. Harshad Patidar S/o Shri Devi Lal Patidar, Aged About 25
Years, R/o Village Selota, Post Bhiluda, Tehsil Sagwara,
District Dungarpur, (Raj.)
----Appellants
Versus
1. State Of Rajasthan, Through Is Secretary, Gramin Vikas And
Panchayatiraj Department, Government Secretariat, Jaipur,
Rajasthan.
2. The Secretary, Rajasthan Staff Selection Board, Durgapura,
Jaipur, Rajasthan.
3. The Director, Elementary Education, Bikaner, Rajasthan.
4. The District Education Officer, Elementary Education, Udaipur,
Rajasthan.
5. The District Education Officer, Elementary Education,
Banswara, Rajasthan.
(Downloaded on 26/05/2025 at 09:45:11 PM)
[2024:RJ-JD:53225-DB] (4 of 44) [SAW-31/2024]
6. The District Education Officer, Elementary Education,
Dungarpur, Rajasthan.
7. Chetan Patidar S/o Shri Govind Patidar, Aged About 23 Years,
R/o Pindawal, Tehsil Sabla, District Dungarpur, (Raj.)
8. Arjun Kumar S/o Shri Ratana Ram, Aged About 26 Years, R/o
Panchayat Bhawan Ke Pichhe, Village Lundara, Tehsil Bali,
District Pali, (Raj.)
9. Piyush Patel S/o Shri Nathji Patel, Aged About 26 Years, R/o
Village And Post Balawara, Tehsil Bagidora, District Banswara,
(Raj.)
10. Kratika Mali D/o Shri Omprakash Mali, Aged About 27 Years,
R/o Street No.05, Subhash Nagar, College Road, Banswara
(Raj.)
11. Bhavesh Kalal S/o Shri Narayan Lal Kalal, Aged About 21
Years, R/o Village And Post Doongar, Tehsil Ghatol, District
Banswara (Raj.)
12. Kapil Patidar S/o Shri Dhanji Patidar, Aged About 22 Years, R/
o Daduka, Tehsil Gadi, District Banswara (Raj.)
13. Balwant Singh Merawat S/o Shri Sadiya, Aged About 41
Years, R/o Village And Post Rathdhanraj, Tehsil Sajjangarh,
District Banswara (Raj.)
----Respondents
D.B. Special Appeal (Writ) No. 107/2024
Rahul Lohar S/o Shri Devi Lal Lohar, Aged About 24 Years, R/o
Village Post Poliyali, Tehsil Jhadol, District Udaipur, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat, Jaipur.
(Downloaded on 26/05/2025 at 09:45:11 PM)
[2024:RJ-JD:53225-DB] (5 of 44) [SAW-31/2024]
2. District Education Officer (Head Quarters), Udaipur.
3. The Chairman, Rajasthan Staff Selection Board, Jaipur.
----Respondents
D.B. Special Appeal (Writ) No. 116/2024
Deepu Kunwar Shaktawat D/o Shri Vijendra Singh, Aged About 33
Years, R/o Vpo Gamda, Bramaniya, Tehsil Sangwara, District
Dungarpur.
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Department
Of Education, Government Of Rajasthan, Secretariat, Jaipur.
2. District Education Officer, (Head Quarters), Dungarpur.
3. The Chairman, Rajasthan Staff Selection Board, Jaipur.
----Respondents
D.B. Special Appeal (Writ) No. 246/2024
Jignesh Prajapat S/o Shri Ramesh Chandra Prajapat, Aged About 22
Years, R/o Village Post Kargachiya, Banswara, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Education, Government Of Rajasthan, Secretariate, Jaipur.
2. The Secretary, Department Of Panchayatiraj, Government Of
Rajasthan, Secretariat, Jaipur.
3. The Director, Directorate, Primary Education, Bikaner,
Rajasthan.
4. The Secretary, Rajasthan Staff Selection Board, Jaipur,
Rajasthan
5. The Chairman, Rajasthan Staff Selection Board, Jaipur,
Rajasthan.
(Downloaded on 26/05/2025 at 09:45:11 PM)
[2024:RJ-JD:53225-DB] (6 of 44) [SAW-31/2024]
6. The Chief Executive Officer, Zila Parishad, Banswara,
Rajasthan.
7. Chief District Education Officer (Headquarter), Banswara,
Rajasthan.
----Respondents
D.B. Special Appeal (Writ) No. 253/2024
Prafulla Kumar S/o Nathu Lal Teli, Aged About 39 Years, R/o Village
Bardiya, Post Bardiya, Tehsil And District Pratapgarh, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Secretary Department Of
Secondary Education, Secretariat, Jaipur, Rajasthan.
2. The Secretary, Rural Development And Panchayati Raj
Department, Government Of Rajasthan, Jaipur.
3. Director, Elementary Education, Bikaner, Rajasthan.
4. The District Education Officer, Pratapgarh.
5. Rajasthan Staff Selection Board, Jaipur, Through Its Chairman
Premises Of State Agriculture Management Institute
Durgapura, Jaipur, Rajasthan.
----Respondents
For Appellant(s) : Mr. Lokesh Mathur Advocate,
Mr. Prakash Kumar Advocate &
Mr. Hemant Singh Solanki Advocate.
For Respondent(s) : Mr. Deepak Chandak, Assistant to
Additional Advocate General.
Mr. B.L. Bhati, Additional Advocate
General with
Ms. Sonal Parihar Advocate.
Mr. Priyanshu Gopa Advocate for
Mr. Vinit Sanadhya Advocate.
Ms. Nandipna Gehlot Advocate for
Mr. Manish Patel Advocate.
(Downloaded on 26/05/2025 at 09:45:11 PM)
[2024:RJ-JD:53225-DB] (7 of 44) [SAW-31/2024]
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Reportable Judgment
Pronounced on 26/05/2025
(Per Hon'ble the Chief Justice):
1. This order shall govern disposal of all the appeals heard
analogously, as the issues involved for consideration and adjudication
are common.
2. For brevity and convenience, the facts stated in S.B. Civil Writ
Petition No.14881/2023, Deepika Kunwar Chundawat Versus State of
Rajasthan & Others are being referred to.
3. Rajasthan Staff Selection Board (hereinafter referred to as
'RSSB') invited online applications from eligible candidates vide
Advertisement dated 16.12.2022 for the purpose of recruitment to the
post of Teacher. Amongst other criteria of eligibility, a candidate was
required to obtain minimum qualifying percentage in Rajasthan
Teachers Eligibility Test (hereinafter referred to as 'REET'). On the
basis of an earlier order issued by the Government on 16.12.2020, the
minimum qualifying percentage of different categories was different
and shown in the form of a table in the Advertisement dated
16.12.2022. For categories of Scheduled Castes (SC), Other Backward
Classes (OBC), Most Backward Classes (MBC) and Economically
Weaker Section (EWS), the minimum qualifying percentage in REET
was 55%. Irrespective of whether a candidate is resident of Tribal Sub-
Plan (for short 'TSP')/Non Tribal Sub-Plan (for short 'Non TSP') area,
on the basis of the marks obtained in the written examination, merit of
the candidate was determined. The grievance of the appellant and the
other appellants in other cases was that though they had secured
[2024:RJ-JD:53225-DB] (8 of 44) [SAW-31/2024]
higher marks in the REET examination, their candidature was not
considered against the general category posts even though they had
secured marks more than the cut off marks prescribed for general
category. Being aggrieved, petitions were filed.
4. The grievance, as ventilated through the petitions were that the
appellants having secured higher marks in the examination, as
compared to general category candidates, their candidature was
required to be taken into consideration for general category posts by
applying the migration rule and their candidature could not be denied
on the ground of non-availability of the OBC category posts in TSP
area. Further grievance ventilated was that rejection of petitioners'
candidature on the ground that in the eligibility examination (REET),
they could not secure 60% marks, but they were declared having
passed in REET examination with relaxed criteria applicable to reserve
category upon obtaining 55% marks, was also illegal and could not be
made a ground to deny migration. Therefore, the case of the
petitioners was that irrespective of whether they were declared eligible
in REET examination with relaxed criteria, as they had not taken any
benefit of relaxation in the recruitment process, benefit of migration
could not be denied and they were entitled to be considered for
appointment against the general category posts, as the cut off fixed
for general category candidates was lower than the marks obtained by
the appellants.
5. The stand taken by the respondents in the writ petition was that
even though the petitioners have not taken the benefit of relaxation in
the recruitment process as such after issuance of advertisement,
nevertheless, they obtained eligibility criteria on relaxed standards.
Therefore, where eligibility criteria for appearing in the examination
[2024:RJ-JD:53225-DB] (9 of 44) [SAW-31/2024]
has been acquired on relaxed criteria by the candidates belonging to
reserve category, they cannot be allowed migration against general
category posts only on the basis that they had secured higher marks in
the selection process.
6. The learned Single Judge, after considering the aforesaid issue,
arrived at a conclusion that as relaxation was provided category wise
in the matter of acquiring eligibility criteria, therefore, the petitioners,
who entered the process of selection on the basis of eligibility
qualification test on relaxed criteria, could not claim migration on the
basis that they had secured marks more than the general category.
7. Aggrieved by the order of learned Single Judge, these appeals
have been filed.
8. Learned counsel appearing for the appellants/unsuccessful writ
petitioners has argued that in view of plethora of decisions of the
Hon'ble Supreme Court in the cases of Deepa E.V. Versus Union of
India & Others, 2017 (12) Supreme Court Cases 680, Jitendra
Kumar Singh & Others Versus State of U.P. & Others, AIR 2010
SC 1851, Gaurav Pradhan & Others Versus State of Rajasthan &
Others, (2018) 11 Supreme Court Cases 352, Vikas Sankhala &
Others Versus Vikas Kumar Agarwal & Others, (2017) 1
Supreme Court Cases 350, The Regional Manager and Another
Versus Pawan Kumar Dubey, (1976) 3 Supreme Court Cases
334 & Union of India and Others Versus Dhanwanti Devi and
Others, (1996) 6 Supreme Court Cases 44, the migration rule will
cease to operate only in those cases where a candidate belonging to
reserve category has taken benefit of any relaxation/concession in the
recruitment process and not otherwise. It is further submitted that the
terms and conditions of the advertisement or the governing rules and
[2024:RJ-JD:53225-DB] (10 of 44) [SAW-31/2024]
regulations nowhere prescribed that if a general category candidate
has obtained eligibility qualification on relaxed standards, he/she
would not be considered against general category posts. According to
the learned counsel for the appellants, qualifying examination to
acquire eligibility criteria do not form part of the selection
process/recruitment process, as the same begins with the issuance of
advertisement. The eligibility test (REET) is conducted separately and
is unconnected with the process of recruitment. A candidate, who
appears in the eligibility test (REET), does not necessarily enter into
recruitment process for appointment to the post of Teacher in various
courses. It is open for him/her to apply or not to apply for recruitment
on the post of Teacher. Therefore, by no stretch of imagination, REET
eligibility qualification could be treated as part of recruitment process.
9. Further submission of learned counsel for the
appellants/unsuccessful writ petitioners is that there is no express
provision contained in the advertisement that qualification of eligibility
with relaxed standards would dis-entitle the reserved category
candidate to seek consideration of his/her candidature against general
category post even if in the recruitment process, he/she has secured
marks more than the cut off marks of the general category candidate.
Prescription in Clause 8.2 of the advertisement only means that
relaxation, if any, taken in the process of recruitment like fee
relaxation or age or any other kind of relaxation while submitting
application form and participating in the process of selection would dis-
entitle a candidate belonging to reserve category to take the benefit of
migration on the basis of the secured marks higher than the cut off
marks of the general category candidate.
[2024:RJ-JD:53225-DB] (11 of 44) [SAW-31/2024]
10. Per-contra, learned counsel for the respondents would submit
that a candidate, in order to become eligible to participate in the
process of selection for appointment to the post of Teacher, is required
to be possessed of certain eligibility qualifications and one of the
eligibility qualification is of the candidate having passed REET. Learned
counsel would further submit that unless the candidate has passed
REET, he/she would not be eligible to compete for the post. It is
further submitted that for the purposes of acquiring REET eligibility,
minimum qualifying marks for general and reserved category
candidates have been separately prescribed. The appellants are those,
who were allowed to clear REET exam on relaxed criteria and not on
the same standards, as general candidates. Therefore, it is contended,
the very entry of the appellants in the process of recruitment is on the
basis of they having acquired eligibility qualification on relaxed criteria.
Therefore, once they have taken the benefit of relaxation, they cannot
claim benefit of rule of migration on the ground that though they
belong to reserve category of OBC (NCL), they, having secured marks
higher than the cut off marks of general category, should be allowed to
be migrated and considered against general category posts. Learned
counsel would further submit that Clause 8.2 of the advertisement is
required to be construed and interpreted in a rational manner. The
advertisement intended to deny benefit of migration and consideration
of reserved category candidates against general category posts,
thereby denying benefit of migration, once they have taken benefit of
any relaxation, as stated in the terms of advertisement, which were
quite clear and did not suffer from any ambiguity. The appellants even
before participation in the process of selection fully knew that terms of
advertisement, as contained in Clause 8.2 thereof, would not entitle
[2024:RJ-JD:53225-DB] (12 of 44) [SAW-31/2024]
them to be considered against general category posts, but their
candidature would be confined only to posts earmarked for their
respective reserved category.
11. Learned counsel for the respondents would further submit that if
a candidate, who belongs to reserve category and has cleared REET
examination on relaxed criteria prescribed for reserve category
candidates, is allowed benefit of migration, that would amount to
treating him/her eligible on the stringent criteria of selection in REET.
The REET eligibility qualification is intrinsically linked with the policy of
recruitment to the post of Teacher and the eligibility is essentially for
appointment to the post of Teacher. The REET eligibility is obtained
only to become eligible for recruitment to the post of Teacher.
Therefore, it has to be treated as part of recruitment process even
though such eligibility is acquired prior to issuance of advertisement.
There is no challenge led to the validity of Clause 8.2 of the
advertisement and the appellants, having participated in the process of
selection, are debarred from questioning the scheme/policy of
migration, as contained in Clause 8.2 of the advertisement.
12. Further submission of learned counsel for the respondents is that
the decision of the Hon'ble Supreme Court in the case of Vikas
Sankhala & Others Versus Vikas Kumar Agarwal & Others
(Supra) will not come to the aid of the appellants, as on facts, that
was a case based on the then the existing policy/circular dated
11.05.2011, which has subsequently been substituted by reservation
policy/circular dated 26.07.2017, which was framed in compliance of
the directions of the Hon'ble Supreme Court in the case of Deepa E.V.
Versus Union of India & Others (Supra) that those candidates,
who had taken benefit of relaxation, will not be allowed benefit of
[2024:RJ-JD:53225-DB] (13 of 44) [SAW-31/2024]
migration against general category posts only on the basis that they
have acquired marks higher than the cut off marks of the general
category candidates. Learned counsel would submit that the present
case is squarely covered by the ratio laid down by the Hon'ble
Supreme Court in the case of Deepa E.V. Versus Union of India &
Others (Supra) and Government (NCT of Delhi) & Others
Versus Pradeep Kumar & Others, 2019 (10) Supreme Court
Cases 120. Lastly, learned counsel for the respondents would submit
that even if there is any conflict in the views taken in the cases of
Vikas Sankhala & Others Versus Vikas Kumar Agarwal & Others
(Supra) & Government (NCT of Delhi) & Others Versus Pradeep
Kumar & Others (Supra), the decision in the case of Government
(NCT of Delhi) & Others Versus Pradeep Kumar & Others
(Supra) would prevail and will have to be applied as binding
precedent, as that was rendered by three Judges Bench. Learned
counsel would also submit that once judgment in the case of Vikas
Sankhala & Others Versus Vikas Kumar Agarwal & Others
(Supra) has been considered, explained and distinguished in the case
of Pradeep Kumar & Others (Supra), that has to be understood in
the manner explained and not otherwise. He also placed reliance upon
the decisions of the Hon'ble Supreme Court in the cases of Chandra
Prakash and Others Versus State of U.P. and Others, AIR 2002
SC 1652, Niravkumar Dilipbhai Makwana Versus Gujarat Public
Service Commission and Others, (2019) 7 Supreme Court Cases
383 & Government (NCT of Delhi) and Others Versus Pradeep
Kumar and Others (Supra).
[2024:RJ-JD:53225-DB] (14 of 44) [SAW-31/2024]
13. We have heard learned counsel for the parties, perused the
record and also given our anxious consideration to submissions made
by the learned counsel for the parties.
14. The recruitment-in-question was initiated by issuance of an
advertisement dated 16.12.2022 issued by RSSB, Jaipur, inviting
applications for appointment to the post of Upper Primary School
Teacher (General/Special Education) (Leval-2, Class 6 to 8). According
to the said advertisement, the recruitment was to be governed by the
provisions contained in Rajasthan Panchayati Raj Rules, 1996 and
Rajasthan Scheduled Area Subordinate, Ministerial and Class IV
Service (Recruitment and Other Conditions of Service) Rules, 2014.
15. Provisions contained in Rule 266 of the Rajasthan Panchayati Raj
Rules, 1996, as amended from time to time, clearly provide that for
the purposes of appointment to the post, which were advertised under
advertisement, amongst other qualifications, the candidate must have
passed REET or Rajasthan Teacher Eligibility Test (hereinafter referred
to as 'RTET'). It is not in dispute that requirement of a candidate
having passed REET, is one of the eligibility criteria and qualification for
appointment to the post advertised by the Respondent No.3-RSSB. It
is also not in dispute that different minimum qualifying percentage of
marks were prescribed for general and reserved category candidates.
While for general category candidates, the minimum qualifying marks
to pass REET is 60%, for candidates belonging to reserve category of
OBC (NCL), minimum qualifying marks to pass REET is 55%. Detailed
provisions in this regard are not being referred to as this has been an
admitted position on record.
16. Apart from this, the admitted position on record regarding
minimum qualifying percentage to clear REET has been differently
[2024:RJ-JD:53225-DB] (15 of 44) [SAW-31/2024]
prescribed for General, Scheduled Castes, Scheduled Tribes and other
categories of reserved classes. Both for TSP as well as Non-TSP area,
while minimum qualifying percentage for clearing REET for
general/unreserved class is 60%, for SC, OBC, MBC and
EWS categories, minimum qualifying percentage for both TSP and Non-
TSP is 55%. This is quite clear from the advertisement itself. The
terms and conditions of the advertisement also require a candidate to
indicate his preference district wise of TSP as well as Non-TSP area.
Clause 8 being relevant in the present case is reproduced herein
below:
^^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, ns; fdlh vU;
fj;k;r dk ykHk ugha mBk;k gSA^^
A bare reading of the aforesaid condition of advertisement clearly
provides that only those candidates belonging to the reserved category
of ST, SC, OBC & MBC would be entitled to be selected against general
category posts, who have not taken benefit of any other relaxation
provided for reserved category candidates, except fee. This condition
has been incorporated in the advertisement in accordance with the
reservation policy/circular dated 26.07.2017. The said circular reads as
below:
Government of Rajasthan
Department of Personnel
(A-Gr. II)
No.F. 7(1)DOP/A-II/99 Jaipur, dated 26 Jul 2017
1. All Additional Chief Secretaries/
Principal Secretaries/Secretaries/
Special Secretaries to Government.
2. All Heads of Departments (including
Divisional Commissioners and
[2024:RJ-JD:53225-DB] (16 of 44) [SAW-31/2024]
Distt. Collectors).
Circular
Subject-Treatment to be given to the candidates belonging to the
SC/ST/BC who are selected against unreserved category vacancies on
the basis of their merit.
In supersession of this department's circular even number dated
04.03.2014 on the above-mentioned subject, the matter has been
examined in consultation with the Law Department in the light of
judgment passed by the Hon'ble Supreme Court in Civil Appeal No.3609
of 2012- Deepa E.V. V/s Union of India and Ors. Dated 06.04.2017,
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 concessions of fees,
such a SC/ST candidate will be treated as a 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 these 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.
All the Appointing Authorities are requested to ensure compliance of
the above mentioned instructions. Cases disposed of before above
instructions shall not be re-opened.
Sd/-
(Bhaskar A. Sawant)
[2024:RJ-JD:53225-DB] (17 of 44) [SAW-31/2024]
17. The above Circular was in force on the date of issuance of the
advertisement. No other circular, superseding circular dated
26.07.2017, has been brought on record by any of the parties much
less any foundational fact stated in the respective pleadings that on
the date of issuance of advertisement, any other circular, laying down
policy of reservation, was in force and applicable.
A perusal of the aforesaid circular clearly states that the circular
has been issued in supersession of previous circular. Moreover, what is
important to note is that the circular was issued in order to implement
the judgment of the Hon'ble Supreme Court in the case of Deepa E.V.
Versus Union of India & Others (Supra). Clause 8 thereof provides
that if a candidate belonging to SC/ST/BC has not availed of any of the
special concessions such as 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/she secures more marks than the marks obtained by the last
unreserved category candidate who is selected, such a candidate
belonging to the SC/ST/BC shall be counted against the unreserved
category vacancies and not the vacancies reserved for the SC/ST/BC,
as the case may be. The aforesaid circular had to be issued in
compliance of the directions of the Hon'ble Supreme Court in the case
of Deepa E.V. Versus Union of India & Others (Supra). Moreover,
the circular clearly provides that a candidate belonging to reserve
category would not be entitled to be counted against the unreserved
category vacancies if he has taken any relaxation in the recruitment
process. Therefore, under the Rule of migration, the benefit of
[2024:RJ-JD:53225-DB] (18 of 44) [SAW-31/2024]
migration would not be extended where any relaxation has been
availed in the recruitment process. In other words, the restriction is
only with reference to availing relaxation in the recruitment process
and not otherwise. Thus, if we go by the contents of the circular,
restriction on migration is only in the event of availing relaxation in the
recruitment process. By necessary implication, therefore, in the
absence of there being anything contained either governing rules or in
the circular, any benefit which has been availed by a reserved category
candidate in acquiring eligibility qualification, that may not be covered
under the mischief of the migration rule stated in circular dated
26.07.2017. There may be cases where a reserve category candidate
may have been declared pass in various eligibility qualifications much
before commencement of the recruitment process. There may be
cases where, under the policy of the academic examinations, a reserve
category candidate may be declared pass on relaxed criteria different
from the criteria provided for general category candidates. Professional
examination like REET or any other kind of professional examination
may also be passed by the reserved category candidates on relaxed
criteria different from that prescribed for the general category
candidate. For instance, in the present case, a candidate of reserved
category in order to pass REET is required to obtain 55% of minimum
qualifying percentage whereas, a general category candidate in order
to pass REET has to secure minimum 60% of the marks. True it is that
unless the candidate has passed REET or RTET test, he/she would not
be eligible to be appointed to the post of Teacher, as in the present
case, it cannot be held that acquisition of eligibility qualification and
[2024:RJ-JD:53225-DB] (19 of 44) [SAW-31/2024]
criteria to enter the process of selection forms integral part of the
recruitment process.
18. What is to be seen in the present case is as to what is the
reservation policy and the rule of migration and how it will apply. In
the present case, the policy promulgated vide circular dated
26.06.2017 is that those who availed benefit of relaxation in the
recruitment process will not be entitled to be considered against
general category posts. Therefore, on the face of the aforesaid
policy/circular of reservation and rule of migration, if a candidate has
obtained eligibility qualification prior to commencement of the process
of selection, the policy/circular dated 26.07.2017 does not dis-entitle
him/her to get the benefit of rule of migration in case marks obtained
by him/her are higher than the marks obtained by the last general
category candidate. The provisions relating to reservation and rule of
migration have to be strictly construed and its application cannot be
either extended or restricted by implication. The restricting clause
contained in the migration policy cannot be allowed to be extended,
nor has been extended either under the circular or any of the terms
and conditions of the advertisement, particularly clause 8 of the
advertisement, as referred to herein above.
19. It is not under the governing rules or under the advertisement
that a special concession/relaxation has been provided for reserved
category candidates for the purposes of treating them as REET pass
and but for that they could not be treated as REET pass. As would be
clear from the advertisement itself, the candidates belonging to
reserve category are treated as REET pass on they having obtained
minimum 55% of marks on the basis of an earlier order dated
[2024:RJ-JD:53225-DB] (20 of 44) [SAW-31/2024]
16.12.2020 of the Government. Therefore, even though it has been
mentioned in the advertisement, the relaxation has not been provided
under the advertisement, but the status of REET pass is acquired by a
candidate belonging to reserve category on the basis of Government
order dated 16.12.2020 and not by virtue of terms and conditions of
advertisement. Thus, a candidate belonging to reserve category
acquires eligibility criteria of REET pass not granted under the terms
and conditions of the advertisement but on the basis of Government
circular dated 16.12.2020, therefore, it cannot be said that the
candidate belonging to reserve category, who has passed REET on
relaxed criteria, has taken benefit of any relaxation in the recruitment
process.
20. Learned counsel for the parties have relied upon various
decisions including decision rendered in the case of Deepa E.V.
Versus Union of India & Others (Supra), which was made a basis
to frame migration rule by issuance of circular dated 26.07.2017.
21. Detailed submissions made by the learned counsel for the parties
with reference to the decisions dealing with the different circumstances
and application of migration rules, depending upon applicable rules,
policies and terms and conditions of the advertisement, needs to be
considered to find out answer to decide the issue which arise for
consideration in the present cases. At times, during the course of
submissions, learned counsel for the parties have argued that the
decisions cited by the other side, on facts and application of law to the
given facts, have to be applied as precedent law, based upon ratio
decidendi in each case. At times, submissions were made to the extent
that appears to be conflict in the views. Therefore, it will be profitable
[2024:RJ-JD:53225-DB] (21 of 44) [SAW-31/2024]
to first deal with broad principles governing the law precedent and as
to what constitutes ratio decidendi of a case, in an endeavor by us to
arrive at just and proper conclusion.
22. In one of the earlier decisions of the Hon'ble Supreme Court in
the case of The Regional Manager and Another Versus Pawan
Kumar Dubey (Supra), it was highlighted that it is the rule deducible
from the application of law to the facts and circumstances of a case
which constitutes its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. It was also noted that one
additional or different fact can make a world of difference between
conclusions in two cases even when the same principles are applied in
each case to similar facts. It was propounded thus:-
"7. We think that the principles involved in applying Article 311(2)
having been sufficiently explained in Shamsher Singh's case it
should no longer be possible to urge that Sughar Singh's case could
give rise to some misapprehension of the law. Indeed, we do not
think that the principles of law declared and applied so often have
really changed. But, the application of the same law to the differing
circumstances and facts of various cases which have come up to
this Court could create the impression sometimes that there is
some conflict between different decisions of this Court. Even where
there appears to be some conflict, it would, we think, vanish when
the ratio decidendi of each case is correctly understood. It is the
rule deducible from the application of law to the facts and
circumstances of a case which constitutes its ratio decidendi and
not some conclusion based upon facts which may appear to be
similar. One additional or different fact can make a world of
difference between conclusions in two cases even when the same
principles are applied in each case to similar facts.
23. In another decision of the Hon'ble Supreme Court in the case of
Union of India and Others Versus Dhanwanti Devi and Others
(Supra), the law of binding precedent was explained in following
manner :-
"9. Before adverting to and considering whither solatium and
interest would be payable under the Act, at the outset, we will
[2024:RJ-JD:53225-DB] (22 of 44) [SAW-31/2024]
dispose of the objection raised by Shri Vaidyanathan that Hari
Kishan Khosla's case is not a binding precedent nor does it operate
as ratio decidendi to be followed as a precedent and per se per
incuriam. It is not everything said by a Judge while giving judgment
that constitutes a precedent. The only thing in a Judge's decision
binding a party is the principle upon which the case is decided and
for this reason it is important to analyse a decision and isolate from
it the ratio decidendi. According to the well-settled theory of
precedents, every decision contain three basic postulates-(i)
findings of material facts, direct and inferential. An inferential
finding of facts is the inference which the Judge draws from the
direct, or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and (iii)
judgment based on the combined effect of the above. A decision is
only an authority for what it actually decides. What is of the
essence in a decision is its ratio and not every observation found
therein not what logically follows from the various observations
made in the judgment. Every judgment must be read as applicable
to the particular facts proved, or assumed to be proved, since the
generality of the expressions which may be found there is not
intended to be exposition of the whole law, but governed and
qualified by the particular facts of the case in which such
expressions are to be found. It would, therefore, be not profitable
to extract a sentence here and there from the judgment and to
build upon it because the essence of the decision is its ratio and not
every observation found therein. The enunciation of the reason or
principle on which a question before a court has been decided is
alone binding as a precedent. The concrete decision along is binding
between the parties to it, but it is the abstract ratio decidendi,
ascertained on a consideration of the judgment in relation to the
subject-matter of the decision, which alone has the force of law and
which, when it is clear what it was, is binding. It is only the
principle laid down in the judgment that is binding law under Article
141 of the Constitution. A deliberate judicial decision arrived at
after hearing an argument on a question which arises in the case or
is put in issue may constitute a precedent, no matter for what
reason, and the precedent by long recognition may mature into rule
of stare decisis. It is the rule deductible from the application of law
to the facts and circumstances of the case which constitutes its
ratio decidendi.
10. Therefore, in order to understand and appreciate the binding
force of a decision is always necessary to see what were the facts in
the case in which the decision was given and what was the point
which had to be decided. No judgment can be read as if it is a
statute. A word or a clause or a sentence in the judgment cannot be
regarded as a full exposition of law. Law cannot afford to be static
and therefore, Judges are to employ an intelligent in the use of
precedents....."
[2024:RJ-JD:53225-DB] (23 of 44) [SAW-31/2024]
24. In yet another decision of the Hon'ble Supreme Court in the case
of Chandra Prakash and Others Versus State of U.P. and Others
(Supra), the approach required to be adopted was explained thus:-
"13. Even though the writ petitions themselves have been referred
to this larger Bench for final disposal, we are of the opinion that we
should initially decide the question as to the existence of conflict
between the judgments of the 3-Judge Bench and the 2-Judge
Bench, and the effect of such conflict, if any, and then decide
whether the writ petitions should be finally decided by this Bench or
not. In that view of the matter, we have heard learned counsel
appearing for the parties to the limited extent of finding out whether
there is any conflict between the judgment of 2-Judge Bench and
that of 3-Judge Bench and if so, what is the effect of judgments
dated 23-3-1995 and 26-7-1996 of the 2-Judge Bench."
Having said that, the principles with regard to the binding
precedent in the case of a conflict of view as between smaller and
larger Benches was also explained as below:-
"21. In the case of Union of India v. Raghubir Singh (supra), a
5-Judge Bench of this Court speaking through Pathak, CJ., held that
pronouncement of a law by a Division Bench of this Court is binding
on another Division Bench of the same or smaller number of Judges.
The judgment further states that in order that such decision be
binding, it is not necessary that it should be a decision rendered by
the Full Court or a Constitution Bench of the Court. To avoid a
repetition of the discussion on this subject, we think it appropriate to
reproduce the following paragraph of that judgment which reads as
follows:
"What then should be the position in regard to the effect of the
law pronounced by a Division Bench in relation to a case
realising the same point subsequently before a Division Bench
of a smaller number of Judges? There is no constitutional or
statutory prescription in the matter, and the point is governed
entirely by the practice in India of the courts sanctified by
repeated affirmation over a century of time. It cannot be
doubted that in order to promote consistency and certainty in
the law laid down by a superior Court, the ideal condition would
be that the entire Court should sit in all cases to decide
questions of law, and for that reason the Supreme Court of the
United States does so. But having regard to the volume of work
demanding the attention of the Court, it has been found
necessary in India as a general rule of practice and convenience
that the Court should sit in Divisions, each Division being
constituted of Judges whose number may be determined by the
exigencies of judicial need, by the nature of the case including
[2024:RJ-JD:53225-DB] (24 of 44) [SAW-31/2024]
any statutory mandate relative thereto, and by such other
consideration which the Chief Justice, in whom such authority
devolves by convention, may find most appropriate. It is in
order to guard against the possibility of inconsistent decisions
on points of law by different Division Benches that the rule has
been evolved, in order to promote consistency and certainty in
the development of the law and its contemporary status, that
the statement of the law by a Division Bench is considered
binding on a Division Bench of the same or lesser number of
Judges......
23. A careful perusal of the above judgments shows that this Court
took note of the hierarchical character of the judicial system in India.
It also held that it is of paramount importance that the law declared
by this Court should be certain, clear and consistent. As stated in the
above judgments, it is of common knowledge that most of the
decisions of this Court are of significance not merely because they
constitute an adjudication on the rights of the parties and resolve the
disputes between them but also because in doing so they embody a
declaration of law operating as a binding principle in future cases. The
doctrine of binding precedent is of utmost importance in the
administration of our judicial system. It promotes certainty and
consistency in judicial decisions. Judicial consistency promotes
confidence in the system, therefore, there is this need for consistency
in the enunciation of legal principles in the decisions of this Court. It
is in the above context, this Court in the case of Raghubir Singh held
that a pronouncement of law by a Division Bench of this Court is
binding on a Division Bench of the same or similar number of Judges.
It is in furtherance of this enunciation of law, this Court in the latter
judgment of Parija (supra) held that-
"But if a Bench of two learned Judges concludes that an
earlier judgment of three learned Judges is so very incorrect
that in no circumstances can it be followed, the proper course
for it to adopt is to refer the matter before it to a Bench of
three learned Judges stating out the reasons why it could not
agree with the earlier judgment. If, then, the Bench of three
learned Judges also comes to the conclusion that the earlier
judgment of a Bench of three learned Judges is incorrect,
reference to a Bench of five learned Judges is justified.
(Emphasis supplied)"
25. Keeping in forefront the aforesaid principles laid down in plethora
of decisions, we shall now refer to various judgments dealing with the
law of migration.
26. In the case of Jitendra Kumar Singh & Others Versus State
of U.P. & Others (Supra), with reference to the applicable provisions
[2024:RJ-JD:53225-DB] (25 of 44) [SAW-31/2024]
and policy with regard to the concession and relaxation and its impact
and effect on limiting rule of migration, it was held as below:-
"72.......
From the above it becomes quite apparent that the relaxation in age-
limit is merely to enable the reserved category candidate to compete
with the general category candidate, all other things being equal. The
State has not treated the relaxation in age and fee as relaxation in
the standard for selection, based on the merit of the candidate in the
selection test i.e. Main Written Test followed by Interview. Therefore,
such relaxations cannot deprive a reserved category candidate of the
right to be considered as a general category candidate on the basis
of merit in the competitive examination. Sub-section (2) of Section 8
further provides that Government Orders in force on the
commencement of the Act in respect of the concessions and
relaxations including relaxation in upper age-limit which are not
inconsistent with the Act continue to be applicable till they are
modified or revoked.
73. The learned counsel for the appellants had submitted that in
the present appeals, the issue is only with regard to age relaxation
and not to any other concessions. The vires of Section 3 (6) or
Section 8 have not been challenged before us. It was only submitted
by the learned Sr. Counsel for the appellants-petitioners that age
relaxation gives an undue advantage to the candidate belonging to
the reserved category. They are more experienced and, therefore,
steal a march over General Category candidates whose ages range
from 21 to 25 years.
74. It is not disputed before us that relaxation in age is not only
given to members of the Scheduled Castes, Scheduled Tribes and
OBCs, but also the dependents of Freedom Fighters. Such age
relaxation is also given to Ex-servicemen to the extent of service
rendered in the Army, plus three years. In fact, the educational
qualifications in the case of Ex-servicemen is only intermediate or
equivalent whereas for the General category candidates it is
graduation. It is also accepted before us that Ex-servicemen compete
not only in their own category, but also with the General category
candidates. No grievance has been made by any of the
appellants/petitioners with regard to the age relaxation granted to
the Ex-servicemen. Similarly, the dependents of Freedom Fighters
are also free to compete in the General category if they secure more
marks than the last candidate in the General category. Therefore, we
do not find much substance in the submission of the learned counsel
for the appellants that relaxation in age "queers the pitch" in favour
of the reserved category at the expense of the General category.
75. In our opinion, the relaxation in age does not in any manner
upset the "level playing field". It is not possible to accept the
[2024:RJ-JD:53225-DB] (26 of 44) [SAW-31/2024]
submission of the learned counsel for the appellants that relaxation
in age or the concession in fee would in any manner be infringement
of Article 16 (1) of the Constitution of India. These concessions are
provisions pertaining to the eligibility of a candidate to appear in the
competitive examination. At the time when the concessions are
availed, the open competition has not commenced. It commences
when all the candidates who fulfill the eligibility conditions, namely,
qualifications, age, preliminary written test and physical test are
permitted to sit in the main written examination. With age relaxation
and the fee concession, the reserved candidates are merely brought
within the zone of consideration, so that they can participate in the
open competition on merit. Once the candidate participates in the
written examination, it is immaterial as to which category, the
candidate belongs. All the candidates to be declared eligible had
participated in the Preliminary Test as also in the Physical Test. It is
only thereafter that successful candidates have been permitted to
participate in the open competition."
On facts, it was held that as the State had not treated as
relaxation and standard for selection, based on merit of the candidate
in the selection test i.e. Main Written Test followed by Interview, such
relaxations cannot deprive a reserved category candidate of the right
to be considered as a general category candidate on the basis of merit
in the competitive examination. The instructions on the basis of which
such conclusion of law was arrived at are as below:-
"72....
"4. If any person belonging to reserved categories is selected on the
basis of merits in open competition along with general category
candidates, then he will not be adjusted towards reserved category,
that is, he shall be deemed to have been adjusted against the
unreserved vacancies. It shall be immaterial that he has availed any
facility or relaxation (like relaxation in age-limit) available to
reserved category."
27. In the case of Deepa E.V. Versus Union of India & Others
(Supra), the limits/restrictions on application of migration rule was
considered in the light of extant provisions contained in the rules and
instructions contained in office memorandum as below:-
"7. On a combined reading of Rule 9 of the Export Inspection
Agency (Recruitment) Rules, 1980 and also the proceedings dated 1-
7-1998, we find that there is an express bar for the candidates
[2024:RJ-JD:53225-DB] (27 of 44) [SAW-31/2024]
belonging to SC/ST/OBC who have availed relaxation for being
considered for General Category candidates.
The decision in the case of Jitendra Kumar Singh & Others
Versus State of U.P. & Others (Supra), was then explained to hold
that the principle laid down in Jitendra Kumar Singh & Others
Versus State of U.P. & Others (Supra) cannot be applied to the
case in hand in view of there being different rule and policy operating
to limit/restrict application of migration rule as below:-
"8. The learned counsel for the appellant mainly relied upon the
judgment of this Court in Jitendra Kumar Singh v. State of U.P.,
which deals with the U.P. Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and
Government order dated 25-3-1994. On a perusal of the above
judgment, we find that there is no express bar in the said U.P. Act for
the candidates of SC/ST/OBC being considered for the posts under
General Category. In such facts and circumstances of the said case,
this Court has taken the view that the relaxation granted to the
reserved category candidates will operate a level playing field. In the
light of the express bar provided under the proceedings dated
1-7-1998 the principle laid down in Jitendra Kumar Singh cannot be
applied to the case in hand.
9. The learned senior counsel appearing for the respondents has also
drawn our attention to paras 65 and 72 in Jitendra Kumar Singh to
contend that principle in Jitendra Kumar Singh is in the context of
interpretation of the U.P. Act, 1994 and in the particular factual
situation of the said case. Paras 65 and 72, read as under:
"65. In any event the entire issue in the present appeals
need not be decided on the general principles of law laid
down in various judgments as noticed above. In these
matters, we are concerned with the interpretation of the
1994 Act, the Instructions dated 25-3-1994 and the G.O.
dated 26-2-1999. The controversy herein centres around the
limited issue as to whether an OBC who has applied
exercising his option as a reserved category candidate, thus
becoming eligible to be considered against a reserved
vacancy, can also be considered against an unreserved
vacancy if he/she secures more marks than the last
candidate in the general category.
* * *
72. Soon after the enforcement of the 1994 Act the
Government issued instructions dated 25-3-1994 on the
subject of reservation for Scheduled Castes, Scheduled
[2024:RJ-JD:53225-DB] (28 of 44) [SAW-31/2024]
Tribes and other backward groups in the Uttar Pradesh Public
Services. These instructions, inter alia, provide as under:
"4. If any person belonging to reserved categories is
selected on the basis of merits in open competition
along with general category candidates, then he will not
be adjusted towards reserved category, that is, he shall
be deemed to have been adjusted against the
unreserved vacancies. It shall be immaterial that he
has availed any facility or relaxation (like relaxation in
age-limit) available to reserved category."
From the above it becomes quite apparent that the relaxation in
age-limit is merely to enable the reserved category candidate to
compete with the general category candidate, all other things being
equal. The State has not treated the relaxation in age and fee as
relaxation in the standard for selection, based on the merit of the
candidate in the selection test i.e. Main Written Test followed by
Interview. Therefore, such relaxations cannot deprive a reserved
category candidate of the right to be considered as a general
category candidate on the basis of merit in the competitive
examination. Sub-section (2) of Section 8 further provides that
Government Orders in force on the commencement of the Act in
respect of the concessions and relaxations including relaxation in
upper age-limit which are not inconsistent with the Act continue to be
applicable till they are modified or revoked."
10. Having regard to the observations in paras 65 and 72, in our
view, the principles laid down in Jitendra Kumar Singh cannot be
applied to the case in hand. As rightly pointed out by the High Court
that judgment in Jitendra Kumar Singh was based on the statutory
interpretation of the U.P. Act, 1994 and Government Order dated
25-3-1994 which provides for entirely a different scheme."
Therefore, the two decisions, which on a first look, appeared to
be conflicting in nature, were resolved mainly on the basis that the
applicability of rule of migration for the purposes of considering a
reserved category candidate against general category posts would
essentially depend upon applicable rules and instructions. What,
therefore, can be deduced from reading of the aforesaid judgment is
that the rule of migration would essentially depend upon the applicable
rules and instructions/policy laid down by the Government/Recruiting
Agency.
[2024:RJ-JD:53225-DB] (29 of 44) [SAW-31/2024]
28. In a subsequent decision in the case of Vikas Sankhala &
Others Versus Vikas Kumar Agarwal & Others (Supra), the issue
of migration arose for consideration in almost identical circumstances
where the question arising for consideration was whether a candidate
was allowed to participate in the process of selection having been
declared pass on relaxed criteria in the qualifying examination, would
dis-entitle a reserved category candidate to seek benefit of migration
rule. It be noted that the aforesaid case pertain to migration as was
laid down by the State of Rajasthan in the matter of recruitment and in
the background that the candidates of reserved category had obtained
eligibility qualification in Teacher Eligibility Test (hereinafter referred to
as 'TET') and treated as passed on the basis of relaxed criteria, as in
the present case. The factual background was noted as below:-
"9. As is clear from the above, such a TET is to be conducted by the
appropriate State Government, i.e. respective State Governments,
though in accordance with the guidelines framed by NCTE for this
purpose. It may also be mentioned at this stage that passing of the
said TET is a mandatory condition without which a candidate is not
eligible to participate in the recruitment process for appointment as a
teacher. NCTE also formulated the guidelines, which were forwarded
by it to the Secretaries/Commissioners of Education of State
Government/Union Territories vide its letter dated 11-2-2011. In
these guidelines, it was specified that the minimum pass percentage
of TET is 60%. At the same time, it enabled the State Governments
to give concessions to persons belonging to SC/ST, OBC,
differently-abled persons, etc., "in accordance with their extant
reservation policy". Para 9 of these guidelines stipulating the
aforesaid conditions reads as under:
"9. Qualifying marks. - A person who scores 60% or more
in the TET exam will be considered as TET pass. School
managements (Government, local bodies, government aided
and unaided):
(a) may consider giving concessions to persons belonging to
SC/ST, OBC, differently-abled persons, etc., in accordance
with their extant reservation policy;
(b) should give weightage to the TET scores in the
recruitment process; however, qualifying the TET would not
[2024:RJ-JD:53225-DB] (30 of 44) [SAW-31/2024]
confer a right on any person for recruitment/employment as
it is only one of the eligibility criteria for appointment."
(emphasis supplied)
In para 9, the extent of percentage to which the relaxation could be
granted in the qualifying marks for TET was not stipulated and it was
mentioned that the State Governments could give such concessions
in accordance with their extant reservation policy.
11. Subsequently, vide Notification dated 29-7-2011, the aforesaid
letter dated 11-2-2011 was amended. It, inter alia, prescribed that
relaxation up to 5% in the qualifying marks to the candidates
belonging to reserved categories could be accorded.
14. As per the aforesaid communication dated 23-3-2011 of the
State Government, candidates belonging to SC/ST, OBC, SBC and
women belonging to General category were to be given 10%
relaxation in pass marks in TET. Thus, those belonging to these
categories who secured 50% marks were treated as having qualified
TET. They were allowed to appear in the selection process which was
undertaken thereafter some time in June 2012 and results thereof
were declared in August 2012. Many such persons were found eligible
and selected at different districts in the State of Rajasthan. They were
given appointment orders and were also issued joining orders."
29. The grievance raised by the general category candidates, who
had filed petition in the Court raising issue identical to the present
cases was noted as below:-
"15. At this stage, many candidates belonging to the General
category filed writ petitions in the High Court of Rajasthan challenging
their selection on the ground that minimum percentage for passing
TET was 60% and, therefore, all those candidates belonging to the
reserved categories who secured less than 60% in TET could not be
declared as having passed TET and were, therefore, ineligible to
participate in the selection process. Ultimately, the learned Single
Judge of the High Court decided all these writ petitions vide common
judgment dated 6-10-2012 thereby partly allowing the said writ
petitions and holding that the order dated 23-3-2011 of the State
Government could not be allowed to stand as the
relaxation/concession in qualifying marks was not legal or valid. It
was also held that as per para 9 of the guidelines contained in letter
dated 11-2-2011 issued by the NCTE, concession could be given to
persons belonging to SC/ST, OBC, differently-abled persons, etc. only
"in accordance with their extant reservation policy" and insofar as the
State of Rajasthan is concerned, it could not show any "extant"
reservation policy warranting this concession. The State Government
challenged the said decision by filing appeals before the Division
Bench. Likewise, persons belonging to reserved categories who had
[2024:RJ-JD:53225-DB] (31 of 44) [SAW-31/2024]
been selected and their selection set aside by the learned Single
Judge, also preferred appeals. In all, 29 appeals were filed which
have been decided by a common judgment dated 2-7-2013 by the
Division Bench of the High Court. Though the Division Bench did not
agree with some of the reasons given by the learned Single Judge, it
dismissed all the appeals by given its own reasons. It is in this
backdrop that the State Government as well as the selected
candidates belonging to the reserved category have felt aggrieved by
the impugned decision making the same subject-matter of the
present appeals."
30. In the aforesaid facts and circumstances of the case, particularly
the effect and impact of granting relaxation in acquiring eligibility
criteria of TET pass to reserve category candidates on the rule of
migration was examined with reference to the applicable instructions
and policy with regard to rule of migration as below:-
"19. We may point out at the outset that insofar as issue of
concession/relaxation in TET is concerned, it has three facets, viz:
(i) whether relaxation in passing marks for TET was validly
given by the State Government in its letter dated 23-3-2011
and all such candidates belonging to the reserved categories
can be treated as having passed TET on obtaining marks as
per relaxed standards?
(ii) whether no relaxation of any nature could be given by the
State Government and, therefore, it was incumbent upon the
persons belonging to reserved categories as well to secure
60% marks in TET to treat them as qualifying the said TET?
OR
(ii) relaxation to the extent of 5% was permissible, as
provided by NCTE vide its amendment Notification dated
29-7-2011 and, therefore, those who secure 55% or above
could be treated as successful in TET?
20. Insofar as General category candidates are concerned, who were
the writ petitioners in the High Court, they maintained that minimum
qualifying marks were 60% in the absence of any extant reservation
policy granting such concession. According to them, the State
Government could not produce any such policy before the High Court
and even before us and it was accepted that there was no such policy.
21. Insofar as candidates belonging to the reserved categories are
concerned, they are divided into two groups. Many of these
candidates got 55% and above in TET. They argued that as far as
concession given by the State Government as per its decision dated
23-3-2011 is concerned, the same is not warranted and relaxation up
[2024:RJ-JD:53225-DB] (32 of 44) [SAW-31/2024]
to 5% only could be given in view of the amendment Notification
dated 29-7-2011. On this premise, they want to oust all those
candidates who have secured less than 55% marks in TET with the
plea that reserved category candidates belonging to their group
(those who secured 55% or more marks in TET) be treated as eligible
and posts meant for reserved categories be filled up accordingly. It
may be mentioned that many candidates in their group are below in
merit list drawn after the selection than those reserved category
candidates who secured less than 55% marks in TET and, therefore,
are not selected. If the other group is excluded from the selection as
ineligible, candidates from this group may succeed in getting the
berth. So their endeavour is to oust such other group with marks
lesser than 55% in TET so that they are able to get in. On the other
hand, those candidates from reserved categories who have secured
less than 55% marks in TET but are found eligible in terms of
relaxation given vide the State Government's decision dated
23-3-2011 and have emerged successful in the selection have taken
the position that the said relaxation given by the State Government is
valid and legal.
22. We may also pointed out at this stage itself that the State
Government has stood by its decision dated 23-3-2011.
23. There is yet another issue which was raised in the High Court by
the writ petitioners (candidates belonging to general category) and
has been decided by the High Court in their favour. As there is
challenge to the findings on that issue as well in these appeals, we
would like to spell out the said issue with necessary details.
24. It so happened that many candidates who belonged to reserved
category got higher marks than the last candidates from the general
category who was selected for the appointment in the said
recruitment process. In terms of its various circulars, which we shall
refer to at the appropriate stage, such reserved category candidates
who emerged more meritorious than the general category candidates
were allowed to migrate in general category. Effect thereof was that
these candidates though belonging to reserved category occupied the
post meant for general category. According to the writ petitioners
(respondents herein), it was impermissible as these reserved
category candidates got selected after availing certain concessions
and, therefore, there was no reason to allow them to shift to general
category. The High Court has accepted this plea treating the
relaxation in pass marks in TET as concession availed by the reserved
category candidates in the selection process."
31. The issues which arose for consideration were noted as below:
"Issues to be decided
[2024:RJ-JD:53225-DB] (33 of 44) [SAW-31/2024]
38. The history of events, right upto the decision of the High Court,
gives a clear glimpse of the questions of law that need to be
determined by this Court. At this juncture, we would like to formulate
these issues, as under:
38.1. (i) Whether policy of the State as reflected in its letter
dated 23-3-2011 deciding to give relaxation ranging from 10%
to 20% in TET marks to different reserved categories as
mentioned therein is valid in law?
38.2. (ii) Whether NCTE notification dated 29-7-2011, which
amends para 3 of its earlier guidelines/notification dated
11-2-2011, provides 5% relaxation to the reserved category for
passing TET? If so, whether it would be applicable to the
reserved categories in the State of Rajasthan as well?
38.3. (iii) Whether reserved category candidates, who secured
better than general category candidates in recruitment
examination, can be denied migration to general seats on the
basis that they had availed relaxation in TET?"
32. One of the issue was thus whether reserved category candidates,
who secured better marks than general category candidates in
recruitment examination, can be denied migration to general seats on
the basis that they had availed relaxation in TET.
Therefore, the issue which has directly arisen for consideration in
the present case in hand and which was before the Hon'ble Supreme
Court in the case of Vikas Sankhala & Others Versus Vikas Kumar
Agarwal & Others (Supra) were identical. The conclusion which was
drawn and the law declared was as below:-
"Question (iii)
72. The policy decision was contained in the letter dated 11-5-2011
issued by the State Government thereby allowing migration of
reserved category candidates to general category who had secured
better than general category candidates in recruitment examinations.
This has been criticised by the High Court and held to be invalid on
the ground that this was done by circular dated 11-2-2011 which was
issued after the recruitment process started with the issuance of
advertisement dated 30-3-2011 and, therefore, it was impermissible
to change the norms after the recruitment process had been initiated.
[2024:RJ-JD:53225-DB] (34 of 44) [SAW-31/2024]
73. In this behalf, the High Court has referred to Circular No. F-7(2)
DOP/A-II/96 dated 17-6-1996 of the Government of Rajasthan
whereby decision was conveyed that the candidates belonging to
SC/ST and OBC who gets selected fulfilling the conditions of eligibility
regarding age-limit and attempts prescribed for general candidates
can be placed on general merit list and those who get placement in
the merit list as a result of special concession given to them in terms
of age and attempts should not be considered as the general
candidates but should be considered against reserve vacancies.
74. The High Court further noted that later Circular No. F.7(1) DOP/A-
2/99 dated 4-3-2002 issued on the same subject reiterated the
aforesaid position. Yet again, vide Circular No. F.15(24) DOP/AII/75
dated 24-6-2008, it was clarified that only those reserved category
candidates who have not taken any concessions (like that of age, etc.)
can compete against non-reserved vacancies and be counted against
them. It also clarified that women, persons with disabilities,
sportspersons, in-servicemen are counted against their respective
category, even if they are suitable for selection against non-reserved
or open competition vacancy/post. However, if any remaining
candidate of these categories after providing the vacancies/posts
reserved for them are more meritorious than the last person of the
open competition category, such candidate will be selected even if it
leads to selection of more candidates than that provided by virtue of
reservation.
75. On the basis of the aforesaid circulars, the High Court commented
that only those reserved category candidates were entitled to be
migrated to general quota if they complete with availing any special
concessions in terms of age, attempts and otherwise except
concession regarding fee. However, this norm was changed by
impugned Circular No. F.7(1)DOP/A-II/99 dated 11-5-2011 which was
issued in supersession of the earlier circular dated 4-3-2002 and
permitted reserved category candidates to be counted against
unreserved category vacancies if in the selection they had secured
more marks than the marks obtained by the last unreserved category
candidate who is selected, irrespective of the fact that as to whether
they avail special concessions or not. As pointed out above, the High
Court has held that since this change in norms took place after the
initiation of selection process vide advertisement dated 30-3-2011,
the Circular dated 11-5-2011 was not applied as the aforesaid
move/amendment in selection norms was impermissible as held by
this Court in K. Manjusree v. State of A.P..
76. The learned counsel appearing for reserved category
candidates/appellants submitted that passing of TET examination is
just one of the eligibility criteria and cannot be treated as part of the
recruitment process and, therefore, cannot be counted as given
relaxation or concession availed by the reserved category candidates.
On that basis, it was sought to argue that even if Circular dated
[2024:RJ-JD:53225-DB] (35 of 44) [SAW-31/2024]
11-5-2011 is ignored, as per the policy contained in earlier circulars,
those reserved category candidates who had secured more marks
than the last candidate selected in the general category, were entitled
to be counted against unreserved category posts.
77. It was also pointed out that insofar as recruitment process is
concerned, weightage of 20% of TET marks was given in the final
score. This flat weightage of 20% of TET marks given to all candidates
irrespective of the categories to which they belong provided a
level-playing field. In this manner, those candidates who had secured
more marks in TET were placed at advantageous positions by giving
the said weightage. The other effect was that those candidates in
reserved category who had secured less marks than 60% and became
eligible to participate in the selection process by virtue of concession
in the eligibility criteria of TET pass marks, naturally got less marks
under this head. Therefore, as far as recruitment process is
concerned, no such benefit had accrued to the reserved category
candidates.
78. It was also argued that principle of estoppel would apply as the
general category candidates did not challenge the recruitment process
including the advertisement and filed the writ petitions only after they
found themselves to be unsuccessful on declaration of the results of
the recruitment. Reference in this behalf is made to the judgment in
the case of Vijendra Kumar Verma v. Public Service Commission. It
was further pointed out that during the pendency of the matter before
this Court, appointments were made by the respective local bodies
with respect to recruitment of 2012 giving relaxation in accordance
with the State policy dated 23-3-2011 and also allowing migration as
per policy dated 11-5-2011 subject to the decision of this Court. The
participants of reserved category candidates in recruitment process of
2012 and 2013 preferred SLP (C) No.31109 of 2014 wherein this
Court issued notice and allowed the appellant Nos. 8 to 13 belonging
to 2013 recruitment to file SLP. In March, 2015, result declared with
regard to recruitment of 2013 giving relaxation in accordance with
State policy dated 23-3-2011. However, appointments are not given
to reserved category candidates availing relaxation although seats
have been kept vacant. Moreover, migration to general seats was not
allowed. The appellants in SLP (C) No.31109 of 2014 belonging to
2013 recruitment, moved I.A. No.14 of 2015 seeking direction to the
State to prepare merit list of 2013 recruitment in the same manner as
done in 2012 recruitment giving benefit of relaxation and migration.
In fact, after 2011, TET was again conducted by the State in 2012.
The reserved category candidates who had passed TET with
relaxations in 2011 did not appear in 2012 TET since they were
declared pass in 2011 TET itself. Otherwise, they would have availed
the opportunity to improve their TET scores by appearing in TET in
2012.
[2024:RJ-JD:53225-DB] (36 of 44) [SAW-31/2024]
79. The learned counsel for the general category candidates, on the
other hand, maintained that TET was a part of recruitment process
and relaxation in passing marks in that examination amounted to
giving concession to reserved category candidates and after availing
such concession they were not entitled to migrate to general category.
It was also submitted that insofar as decision of the State contained in
letter dated 11-5-2011 is concerned, it was rightly held by the High
Court that norms could not be changed after the selection process has
started."
33. What was highlighted in the aforesaid decision was that as far as
recruitment process is concerned, no relaxation benefit had accrued to
reserve category candidates and the fact that they had entered the
process of selection having passed TET with relaxed criteria would not
hinder application of rule of migration and a distinction was drawn as
between acquiring eligibility qualifications for the purposes of entering
into the process of selection and availing benefit of relaxation in the
recruitment process, which would be clear from flowing enunciation of
law:-
"80. 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 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 11-2-2011. 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
[2024:RJ-JD:53225-DB] (37 of 44) [SAW-31/2024]
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.
81. Once this vital differentiation is understood, it would lead to the
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 11-5-2011, 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."
34. We may profitably note here that their Lordships in the Supreme
Court propounded an important principle that acquisition of eligibility
qualification for the purposes of entering into recruitment process only
enables the reserved category candidates to compete with others by
allowing them to participate in the selection process by ensuring level
playing fields and cannot constitute a case of relaxation and cannot be
treated as a case of relaxation in the recruitment process. The
aforesaid decision, even on facts, is similar in the present cases in the
light of the new Circular which was issued on 26.07.2017 and was in
force at the time of commencement of the recruitment process by
issuance of advertisement.
[2024:RJ-JD:53225-DB] (38 of 44) [SAW-31/2024]
35. The decision in the case of Gaurav Pradhan & Others Versus
State of Rajasthan & Others (Supra), clarified legal position
explained and also distinguished the decision in the case of Vikas
Sankhala & Others Versus Vikas Kumar Agarwal & Others
(Supra), turning on the applicability of different circulars laying down
policy of migration as below:-
44. One more judgment of this Court which needs to be referred to is
Vikas Sankhala v. Vikas Kumar Agarwal. Somewhat similar issues were
raised in above case with regard to migration of reserved category
candidates into general category which was objected by the candidates
belonging to general category on the ground that they have been
selected after obtaining relaxation of marks permissible to reserved
category candidates. They are not entitled to be included into general
category. The issue is mentioned in paragraph 24 which is to the
following effect: (SCC P. 364)
"24. It so happened that many candidates who belonged to
reserved category got higher marks than the last candidates
from the general category who was selected for the
appointment in the said recruitment process. In terms of its
various circulars, which we shall refer to at the appropriate
stage, such reserved category candidates who emerged more
meritorious than the general category candidates were allowed
to migrate in general category. Effect thereof was that these
candidates though belonging to reserved category occupied the
post meant for general category. According to the writ
petitioners (the respondents herein), it was impermissible as
these reserved category candidates got selected after availing
certain concessions and, therefore, there was no reason to allow
them to shift to general category. The High Court has accepted
this plea treating the relaxation in pass marks in TET as
concession availed by the reserved category candidates in the
selection process."
45. ....This Court having come to the conclusion that relaxation given
in TET was not part of recruitment process, the Circulars issued by the
State of Rajasthan as noted above were held not to be applicable.
Thus, in the above case although somewhat similar issues were raised
but this Court has held that relaxation in TET marks was not part of
recruitment process. The said judgment does not help either of the
parties."
36. Therefore, it is once again clear that applicability of migration
rule was examined, depending upon the nature of relaxation and
[2024:RJ-JD:53225-DB] (39 of 44) [SAW-31/2024]
further, as to whether that relaxation was provided in the recruitment
process or in acquiring eligibility qualification for the purposes of
entering into the process of recruitment.
37. In a subsequent decision of the Hon'ble Supreme Court in the
case of Niravkumar Dilipbhai Makwana Versus Gujarat Public
Service Commission and Others, their Lordships propounded that
Article 16(4) of the Constitution of India is an enabling provision
empowering the State to make any provision or reservation of
appointments on posts in favour of any backward class or citizens
which, in the opinion of the State, is not adequately represented in the
service under the State. It was propounded as below:-
"22. 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
Government from time to time."
38. Therefore, it is well settled that 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 and the
reservation being the enabling provision, the manner and the extent to
which reservation is provided has to be spelt out from the orders
issued by the Government from time to time.
The principles laid down in Jitendra Kumar Singh & Others
Versus State of U.P. & Others (Supra), after drawing distinction
and difference in the policy of the Government and in the background
[2024:RJ-JD:53225-DB] (40 of 44) [SAW-31/2024]
of the policy, was noted. The aforesaid decision, therefore, has no
application in the present cases.
39. Much reliance has been placed on the decision of the Hon'ble
Supreme Court in the case of Government (NCT of Delhi) & Others
Versus Pradeep Kumar & Others (Supra).
Having surveyed various decisions on the point, as referred to
above, it is no longer difficult for us to distinguish the present decision
on the facts of the case for the reason that the decision turned on
applicability of the relevant rule of migration, as was found applicable
and in force in the aforesaid decision, which is materially different from
what is applicable and in force in the present cases, which are
governed by the law laid down in the case of Vikas Sankhala &
Others Versus Vikas Kumar Agarwal & Others (Supra).
40. The discussion in the aforesaid decision, noticing distinguished
feature as between the case in hand and that in Vikas Sankhala &
Others Versus Vikas Kumar Agarwal & Others (Supra), were as
below:-
"16. At this stage, we need to discuss the Vikas Sankhala judgment
in some detail as the High Court and the Tribunal granted relief to the
respondents on the basis of this Judgment. The recruitment in Vikas
Sankhala, related to Rajasthan where the candidates who availed
concession in the CTET examination, were allowed to migrate to
Unreserved (or general) category vacancies, if they were more
meritorious than the general category candidates.
17. The question, therefore, to be answered here is whether the
above case pertaining to recruitment in Rajasthan with candidates
competing for vacancies in their home State, would apply to the
situation in the present case where candidates from other states
obtaining qualification under relaxed norms, are aspiring for general
category vacancies in Delhi.
18. The decision of Vikas Sankhala was arrived at due to certain
peculiar facts in the case. The recruitment process of teachers therein
stipulated that 20% of the final result calculation of every aspirant
will be based on the candidate's TET result marks. Thus, candidates
[2024:RJ-JD:53225-DB] (41 of 44) [SAW-31/2024]
who obtained CTET qualification after availing concession, had
naturally secured lower marks in the total aggregate compared to
those, who appeared in the unreserved category and did not avail
such concession in pass marks. In those facts, it was held that the
resultant reduced marks in the 20% component will neutralize the
benefits of eligibility given to reserved candidates, who thereafter had
to compete with unreserved students without any concessions and
also overcome the disadvantage they had in the 20% component. On
this aspect, the following was the Court's observation: (Vikas
Sankhala case, SCC P.385, Para 81)
"81. Once this vital differentiation is understood, it would lead to
the conclusion that no concession becomes available to the
reserved category candidate by giving relaxation in the pass
marks in TET insofar as recruitment process is concerned."
The above excerpts reveal the Court's concern for maintaining
equality in the recruitment process. However, in the present
recruitment process, in the absence of a compensatory disadvantage
or balancing factor, the ratio in Vikas Sankhala cannot be applied for
the respondents who obtained CTET qualification by virtue of
concession given to OBC categories. In other words, the concession
benefit is not neutralized in the Delhi recruitment process. Thus, a
level playing field and a fair treatment is not achieved, by
inappropriately applying the ratio of Vikas Sankhala without having
regard to the peculiarity of facts of that case where, a different
selection yardstick was applied.
19. xxxxxxxx
19.1. In Vikas Sankhala, 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
& Training would bear consideration. Contrary to the Circular dated
11-5-2011 in Vikas Sankhala, 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."
41. Having noted the aforesaid distinguishing features, the rule
applicable in the case in hand, was noted as below:-
"19.2. For better understanding, the implications of the aforenoted
OM dated 1-7-1998 (Ref.36011/1/98-Estt.(Res.), Ministry of
[2024:RJ-JD:53225-DB] (42 of 44) [SAW-31/2024]
Personnel, Public Grievances and Pensions), the relevant portion is
extracted below:-
"...3. In this connection, it is clarified that only such SC/ST/OBC
candidates who are selected on the same standard as applied to
general candidates shall not be adjusted against reserved
vacancies. In other words, when a relaxed standard is applied in
selecting an SC/ST/OBC candidates, for example in the
age-limit, experience, qualification, permitted number of
chances in written examination, extended zone of consideration
larger than what is provided for general category candidates
etc., the SC/ST/OBC candidates are to be counted against
reserved vacancies. Such candidates would be deemed as
unavailable for consideration against unreserved vacancies...."
42. On such distinguishing feature, the distinguishing aspect in Vikas
Sankhala & Others Versus Vikas Kumar Agarwal & Others
(Supra) was clearly noted as below:-
"19.5. The other distinguishing aspect in Vikas Sankhala is that the
candidates who had applied under the reserved category belonged to
Rajasthan. For the selection and aspirants from the same State i.e.,
Rajasthan, the Court allowed such candidates to migrate to the
unreserved category. In the present case, however, the candidates
(i.e. the respondents) belong to States other than Delhi. Being OBC
(outsiders), they could have been considered only under the
unreserved category if they secure at least 60% marks in the CTET.
The respondents admittedly did not secure 60% and thus were
ineligible. Moreover, an OBC candidate not certified in the
State/Territory outside of Delhi cannot be eligible to avail of
employment in reserved category posts earmarked for OBCs who are
certified by the Delhi Government.
20. It is important to keep in mind that the respondents are
competing for general category vacancies. All others in this group
have obtained their CTET eligibility qualification, securing the normal
pass marks without availing any relaxation of pass norms. On the
other hand, the respondents despite their lesser marks in the CTET
examination, could qualify only because they availed the relaxation
benefits as OBC category examinees. Their eligibility qualification is
secured under relaxed norms meant for OBC category and therefore
we do not think it is proper to consider them to be eligible for the
general category vacancies and contention to the contrary is
unacceptable."
43. It was in those facts and circumstances and applicable rule/policy
of migration which was different as considered in the case of Vikas
[2024:RJ-JD:53225-DB] (43 of 44) [SAW-31/2024]
Sankhala & Others Versus Vikas Kumar Agarwal & Others
(Supra) and in that case, it was held that it would not be permissible
to allow benefit of rule of migration in favour of reserved category
candidates for being considered against the general category posts.
The aforesaid decision, therefore, is also not applicable in the present
case.
44. In the conclusion, we have to hold that the controversy, as raised
in the present cases is squarely covered by the decision in the case of
Vikas Sankhala & Others Versus Vikas Kumar Agarwal & Others
(Supra) and not what has been laid down in Government (NCT of
Delhi) & Others Versus Pradeep Kumar & Others (Supra). Both
decisions proceed on application of different rule/policy of migration of
reserved category candidates. Therefore, we do not see any conflict in
the view taken by the Hon'ble Supreme Court in different cases. The
common thread and the principle applicable in all the cases is this:-
whether a reserved category candidate would be entitled to migrate to
general category candidate on the basis that he/she has obtained
marks more than the cut off marks obtained by general category
candidates would essentially depend upon rule/policy laid down by the
State. Once we have concluded that in the present cases, the
application of rule of migration is restricted only in those cases where
a candidate has taken benefit of any of the relaxation, as stated in
Clause 8 of the advertisement in the process of recruitment that
he/she may not be entitled to be considered against general category
posts. If a candidate has entered into the process of selection by
acquiring eligibility criteria on relaxed standard, in the absence of
there being any express provision contained in the applicable policy,
benefit of migration could not be denied.
[2024:RJ-JD:53225-DB] (44 of 44) [SAW-31/2024]
45. The submissions made by learned counsel for the State/selection
agency that Clause 8 has to be understood and interpreted to restrict
the applicability of rule of migration will not be applicable once a
candidate has passed TET/eligibility qualification by relaxed criteria is
not correct. For that reason, the argument that the writ petitioners
having not assailed the validity of Clause 8 of the terms and conditions
of the advertisement and having participated in the process of
selection, cannot be allowed to claim the benefit of rule of migration
has, therefore, to be rejected.
46. As an upshot of the aforesaid discussion, the order passed by the
learned Single Judge in the batch of writ petitions assailed in these
appeals cannot be sustained and is set aside. The writ petitions are
consequently allowed and all the writ petitioners are held entitled to
benefit of rule of migration. That means, if they have obtained marks
more than the general category candidates, in the recruitment
process, they are entitled to be considered against general category
posts. Accordingly, State would be obliged to revise the select list of
general category candidates and the petitioners would be entitled to
appointment as teachers against the existing vacancies from the date
other general category candidates were appointed, with all
consequential benefits of seniority, pay fixation and notional benefits
but not the actual salary to which they would be entitled only from the
date of this order.
47. Accordingly, these appeals are allowed.
48. A copy of this judgment be placed on record of each connected
appeal.
(MUNNURI LAXMAN),J (MANINDRA MOHAN SHRIVASTAVA),CJ
Sanjay Kumawat
Powered by TCPDF (www.tcpdf.org)
