1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.491/04 Chandra Bhan Yadav vs. State of Raj. & Ors. Date of order : 22nd September, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Dinesh Yadav for the petitioner. Shri S.S. Sharma, Government Counsel for the State. Shri S.N. Kumawat for the respondent. ****** REPORTABLE The petitioner in the present case is working on the post of Teacher Grade II (Mathematics). He was appointed vide order dated 1.7.1994 with the Education Department of the State. While in service, he came across an advertisement issued by the RPSC on 7.3.2002 advertising 529 posts of Headmasters. Petitioner being eligible applied for the appointment on the said post. He eventually cleared the written examination and was then called for interview. The respondent-RPSC in the result declared on 18.12.2003 placed his name at S.No.106 of the waiting list of the general candidates. Petitioner belongs to other backward classes (for short-OBC). His grievance is 2 that had the law of reservation been correctly applied by the respondents, he would have secured appointment on the post of Headmaster. Shri Dinesh Yadav, learned counsel appearing for the petitioner has argued that the respondent-RPSC in preparing merit list of the Headmasters has included 13 candidates in the category of OBC, even though they secured more marks than the last candidate of the general category. In the originally filed writ petition, though the petitioner asserted that there were 10 such candidates who had more marks than the cut off marks of the general category and yet included in the list of OBC candidates. The RPSC in its reply to the writ petition has disclosed that in fact number of such candidates were 13. These candidates by dint of their merit were entitled to be treated as general candidates and if their names were included in the merit list of general candidates, correspondingly the name of the petitioner would have been pushed up by 13 ranks. He being fifth candidate in the waiting list of OBC candidates, would have 3 certainly been appointed. The respondents by wrongly applying the law of reservation have committed a serious illegality and deprived the petitioner of his right to appointment. Learned counsel Shri Dinesh Yadav in support of his arguments has relied on the judgement of Constitutional Bench of the Supreme Court in Indra Sawhney & Ors. vs. Union of India & Ors.-1992 Supp (3) SCC 217 and other judgements of the Supreme Court in Ajay Kumar Singh & Ors. vs. State of Bihar & Ors.-(1994) 4 SCC 401, R.K. Sabharwal vs. State of Punjab-(1995) 2 SCC 745, Shri Ritesh R. Sah vs. Dr. Y.L. Yamul & Ors.-AIR 1996 SC 1378 and Full Bench judgement of this Court in Shekh Mohd. Afzal & Anr. vs. The State of Rajasthan & Anr.- 2008(1) WLC (Raj.) 60. Shri S.S. Sharma, learned Government Counsel for the State and Shri S.N. Kumawat, learned counsel for the respondent-RPSC have opposed the writ petition. Shri S.N. Kumawat, learned counsel for the respondent-RPSC has contended that though the petitioner upon qualifying the written examination was called for the 4 interview but in the result that was declared thereafter, his name did not find place in the main select list but he was placed at S.No.106 in the waiting list of the general category. Since the State Government did not requisition the names from the reserve list, the petitioner cannot claim appointment. As regards 13 candidates who were included in the OBC category in spite of securing more marks than the cut off of the general category, Shri S.N. Kumawat, submitted that they were those candidates who took advantage of relaxation of age available to the OBC category. Only such candidates were pushed up to be placed in the general merit, who not only secured more marks than the cut off marks of the general category but also did not take any advantage of the relaxation of the age. It was argued that none of the candidates, who deserves to be in general category, has been retained in the list of reserved category unless he has availed of the benefit available to the reserved category to which he belongs. Contention of Shri S.N. Kumawat is that these candidates could not be 5 allowed to take dual benefits both of the relaxation in age and also of counting their seat in the general category. It was submitted that the action of the RPSC is in conformity with the law laid down by the Constitutional Bench of this Court in Indra Sawhney, supra as also in R.K. Sabharwal, supra and the law propounded by the Full Bench of this Court in Sheikh Mohd. Afzal, supra. Shri Dinesh Yadav, learned counsel for the petitioner rejoined and submitted that those candidates belonging to OBC are entitled to relaxation of age but that is as per the policy of the State. Upper age limit for general candidates is 33 years but the State has provided relaxation to OBC candidates raising upper age limit for them upto 40 years. This however cannot be a reason for misconstruing and misapplying the law of reservation. This controversy has been set at rest by Supreme Court in State of Bihar & Ors. vs. M. Neethi Chandra-(1996) 6 SCC 36. Though in the context of choice of college by the candidates of reserved category, their Lordships held therein that 6 although their seats would be counted in the general category for the purpose of computation of quota but they would remain entitled to the benefits that are otherwise available to them for the reason of their being member of reserved category. Learned counsel submitted that the judgement of Supreme Court in M. Neethi Chandra was reiterated by Supreme Court in the subsequent judgement of Anurag Patel vs. U.P. Public Service Commission & Ors.-(2005) 9 SCC 742 which has been followed and explained by Full Bench judgement of this Court in Sheikh Mohd. Afzal & Anr., supra. I have given my anxious consideration to the rival submissions, perused the material on record and respectfully studied the cited precedents. The law on the question is well settled that a candidate, though belonging to a reserved category, if has secured a place in the merit of the general category, the seat / post consumed by him would be counted against the general category. The Supreme Court in Indra Sawhney in para 811 of the judgement observed as under: 7 “811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” This proposition of law was thereafter reiterated by number of Supreme Court judgements such as R.K. Sabharwal vs. State of Punjab-(1995) 2 SCC 745, Shri Ritesh R. Sah vs. Dr. Y.L. Yamul & Ors.-AIR 1996 SC 1378, Yoganand Vishwasrao Patil vs. State of Maharashtra & Ors.-(2005) 12 SCC 311, Union of India & Anr. vs. Virpal Singh Chauhan- (1995) 6 SCC 64, Union of India vs. Satya Prakash & Ors.-(2006) 4 SCC 550 and Ajay Kumar Singh & Ors. vs. State of Bihar & Ors.-(1994) 4 SCC 401. But the question that was answered by the Supreme Court in M. Neethi Chandra and Anurag Patel was in fact raised in an altogether different context. 8 In M. Neethi Chandra, the dispute arose on the question of allotment of seats in different branches of Post Graduate Medical Course in the Medical Colleges of the State of Bihar. The candidates of reserved category securing a place in the general merit were relatively placed in a lower merit vis-a-vis other general candidates whereas they secured a much higher merit than the other reserved category candidates. In that context, it was held by the Supreme Court that the resolution of the Government providing that candidates selected on the basis of merit would not be adjusted against the reserve quota for the purpose of allotment of branches on merit cum choice basis, operated against the reserved candidates themselves for whom the protective discrimination was devised. The resolution to that extent was held to be bad in law. In Anurag Patel, supra, where a similar controversy arose between the reserved category candidates obtaining selection on the basis of their merit in general category vis-a-vis those obtaining selection only on the basis of reservation, 9 it was held that their inter se ranking for the purpose of appointment on the higher post should be determined on the basis of their inter se merit and more meritorious amongst them should be given the choice of posts, each service being treated separately. M. Neethi Chandra and Anurag Patel both laid down the principles of law to be applied while giving effect to the policy of reservation at the time of selection after the merit list has been prepared. In other words, the controversy that arose in those cases was after the declaration of the result of the selection / examination. The controversy in the present case however has surfaced in a different encompass, where the stand of the respondents is that if a candidate has availed of the benefit of age relaxation by virtue of his being member of particular reserved class, he cannot then claim to be counted in the general category even if he has secured a higher merit than the last candidate selected in the general category. In other words, even if he has secured more marks than the cut off marks of the general 10 category, his name would still remain included in the merit of the reserved category to which he belongs because he has availed of the benefit of age relaxation. Contention of the respondents in substance is that having availed of one benefit, such candidate cannot claim another benefit and to put in words used by the respondents, they cannot take dual advantage. The candidates who have taken advantage of the relaxation of age are not before this Court to secure the so called dual advantage. It is the candidate, who has been adversely affected because of the refusal of the respondent to include the other 13 candidates in general merit, who has approached this Court. It is although another matter that he himself did not take the advantage of age relaxation when he participated in the selection in question. Fallacy of this argument would get exposed on deeper analysis. Significant question which in the facts and circumstances of the present case has arisen is whether the candidate who secured the age relaxation and thereby acquired the 11 eligibility to appear in the competitive examination, can be, in the face of the settled proposition of law referred to in the preceding paras, treated to have been selected in reserved category and not in the open / general category in spite of the fact that he has secured more marks than the last candidate selected in the open / general category. The respondent-RPSC has proceeded on the assumption that since these candidates availed of the benefit of age relaxation and it is only because of such age relaxation that they have become eligible to appear in the competitive examinations, they cannot be treated to have been selected in open / general category. In other words, what they contend is that if such 13 candidates were not granted age relaxation, they could not appear in the competitive examination and there was thus no question of their being selected in the open / general category. All the aforesaid judgements, starting from Indra Sawhney onwards, refers to the merit position of such candidates and therefore what is to be seen is whether relaxation in age can be 12 treated as enabling such candidates to qualify the competitive examination on relaxed standards of merit. But then, age and for that matter, the relaxation in the upper age limit, does not have anything to do with the merit of a candidate. While a younger candidate may acquire a much higher position in the merit, an elder candidate need not necessarily figure so high in the merit. It is the younger once who often steal a march over the elders when it comes to achieving merit position in a competitive examination. Age has thus got no co-relation with the merit of a given candidate. While age is essential component of eligibility of the candidate enabling him to appear for the competitive examination as per the rules, merit is the standard by which the efficiency level of such candidate is judged vis-a-vis other candidates appearing in the same competitive examination. Age therefore cannot be confused with the merit of a candidate. In order to appreciate as to what is meant by the term “merit”, it would be apposite to quote the following observations 13 of the Constitutional Bench of Supreme Court in Guman Singh vs. State of Rajasthan & Ors.-1971 (2) SCC 452, in para 35 of which their Lordships observed as under: “xxxxxxxxxxxxxxxx No doubt the term `merit' is not capable of an easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his official duties. Allied to this may be various other matters or factors such as his punctuality in work, qualify and out turn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in the service. We are only indicating some of the broad aspects that may be taken into account in assessing the merits of an officer. In this connection it may be stated that the various particulars in the annual confidential reports of an officer, if carefully and properly noted, will also give a very broad and general indication regarding the merit of an officer. Therefore, it cannot be stated that Rule 28-B and 14 32 are in any manner vague or do not give any guide line for assessing the merit of an officer. No doubt, sub-rule (2) of Rule 27 dealt with certain factors which are to be taken into account for considering the claims for promotion, but when it comes to a question of merit, not only those factors but also certain additional factors and circumstances will have to be taken into account and such an evaluation of merit has been left under the rules to a Committee consisting of responsible, senior and experienced officers of the State.” Although the aforesaid observations were made in a case of promotion, they nevertheless are indicative of the meaning of the term `merit' in its broader sense. However when it comes to the competitive examination and the merit position secured by the candidate and in that the merit secured by the last candidate in the open / general category vis-a-vis higher merit secured by candidate in the reserved category, it is always the marks secured by such candidates in the written examination, apart from the weightage, if any, given to 15 the marks of the qualifying examination in accordance with the rules. This Court is therefore not inclined to uphold the argument of the respondents that since the 13 candidates referred to above were selected on account of relaxation of age granted to them, the settled law of reservation that the candidate though he may be belonging to a reserved category and yet if he has secured more marks than the last candidate selected in the open category, his selection shall be treated to have been made in the general category, can be deviated / departed from. Age relaxation merely provided him the extended period of eligibility within which he could compete and continue to compete, for the competitive examination, but such an age relaxation by no stretch of interpretation can be described as applying to his case relaxed standards of merit as may be the case for selection of a reserved category candidate in certain set of recruitment rules. The Supreme Court in Union of India & Anr. vs. Satya Prakash & Ors.-(2006) 4 SCC 550 dealt with a case wherein the candidate 16 of reserved category (OBC) was selected in the open competition by dint of his merit and was recommended by Public Service Commission without resorting to relaxed standards of merit and placed in the list of open/general category candidates. The dispute was as to in which post he should be appointed. The appointment to a particular service or post was made on the basis of preference, which in turn was based on merit. The Supreme Court held that merely because the candidates themselves opted a preference from the reserved category, he cannot be for the purpose of such appointment treated as reserved category candidate but should be treated as open category candidate for the purpose of computing quota/percentage of reservation and that if he failed to get his own preference in the merit list, he can then opt a preference from the reserved category for the purpose of placement. The Supreme Court while considering the aforesaid case explained in great details as to what was meant by recommendation of the Public Service Commission without resorting to 17 relaxed standards of merit. The observations of Supreme Court in para 18 to 20 are extracted hereinbelow: “18. By way of illustration, a reserved category candidate, recommended by the Commission without resorting to relaxed standard (i.e. on merit) did not get his own preference “say IAS” in the merit/open category. For that, he may opt a preference from the reserved category. But simply because he opted a preference from the reserved category does not exhaust the quota of OBC category candidate selected under the relaxed standard. Such preference opted by OBC candidate who has been recommended by the Commission without resorting to the relaxed standard (i.e. on merit) shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and other Backward Classes. This is the mandate of the proviso to sub-rule (2) of Rule 16. 19. In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by restoring to relaxed standard, but while computing the quota / percentage of reservation he/she will be deemed 18 to have been allotted seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to the relaxed standard. 20. If a candidate of the Scheduled Caste, the Scheduled Tribe and Other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be alloted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service / post in accordance with their preference.” It would thus be seen that above referred to 13 candidates secured more marks than the last candidate selected in the open / general category by dint of their merit without resorting to relaxed standards of merit. Can it therefore be said that selection of such candidates, even if they belong to OBC category, would not be for the 19 purpose of computation of quota treated in open / general category in view of settled proposition of law? There cannot be a different law of reservation for such candidates who get extended term of eligibility on account of relaxation in upper age limit. Age is an essential component of eligibility and has no co- relation with the merit. The respondent- RPSC has incorrectly applied the law of reservation. I had the occasion to deal with a somewhat similar issue in Smt. Kavita Choudhary vs. State of Rajasthan & Ors.-2006 (5) WLC (Raj.) 652. On consideration of all the aforesaid decided cases, it was observed in para 13 of the said judgement as under: “13. Critical analysis of the law referred so discussed would show the underlying philosophy of reservation made in favour of SC, ST and OBC with reference to Article 15(4) and 16(4) of the Constitution of India. These provisions confer certain benefits on the persons belonging to these categories which are not in substitution of any other right, which may be otherwise available to them as citizens of country. Benefit of reservation does not substitute or 20 supplant any other right of a person belonging to SC, ST and OBC. Such benefit would be in addition to an already existing right including the fundamental right of equality. If any scheme of reservation or the procedure evolved with a view to giving effect to such scheme, is made to depend upon the condition of truncating the fundamental or any other right of an individual, such scheme of reservation would be contrary to the constitutional provisions and the law, to the extent it curtails fundamental right or any other right of a person belonging to such category would be liable to be declared illegal. Reserving certain posts for different groups of the community in the first instance means that these posts are meant for members belonging to such specified group. This is an additional benefit conferred on them. On account of such additional benefit however they are not precluded from claiming ordinary benefits otherwise available to them. Members belonging to SC, ST and OBC for whom reservation of posts is made are not reserved for these posts although its converse is true. They cannot be asked to occupy only reserved posts. They would be free to occupy any posts including unserved posts. However, the requirement of law 21 is that while claiming appointment against unserved posts, they should prove their merit like any other citizen, who is not entitled to the benefit of reservation. No provision of law whether substantive or procedural, can be so interpreted as to run country to this basic tenet of the Constitution of India.” The Full Bench of this Court in Sheikh Mohd. Afzal, supra in para 12 of the judgement observed as under: “12. We state the legal position thus : where a candidate belonging to reserved category gets selected competing with open category candidates on the basis of merit, the selection of such candidate needs to be considered in the general category and cannot be counted against the reserved category since such selection is purely based on merit. However, the constitutional right of such selection of a reserved category is not taken away and such selection of a reserved category candidate on merit in open competition does not put him or her in disadvantageous position than the other less meritorious reserved for that category, be it a preference of subject or institution or place or to such other right to which he she may be entitled as if he/she were selected 22 in the reserved category. In the case of Ritesh R. Sah and Anurag Patel the Supreme Court has emphasised this position. Obviously, in the matter of admission, the competent authority has to adhere to and abide by the legal position expounded by the Supreme Court in the case of Ritesh R. Sah and Anurag Patel and noticed by us above.” In view of what has been discussed above, the present writ petition deserves to be allowed and is accordingly allowed. The action of the respondent RPSC in treating 13 candidates, who secured more