Case: NIRAVKUMAR DILIPBHAI MAKWANA Vs. GUJRAT PUBLIC SERVICE COMMISSION AND ORS

In this case, this Court was considering the interpretation of Sub-section (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Sub¬ section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under:"(6) If a person belonging to any categories mentioned in sub¬section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub¬section (1)."27. The State of U.P. issued Instructions dated 25.03.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Groups in the Uttar Pradesh Public Services. Last line of these instructions is as under:¬"It shall be immaterial that he has availed any facility or relaxation (like relaxation in age¬ limit) available to reserved category."28. On consideration of sub¬section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.29. In Deepa (supra), the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under:"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies."30. The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.31. Similar question arose in Gaurav Pradhan (supra). In this case the Government had issued Circular dated 24.06.2008 which is as under:?Circular dated 24¬6¬20086.2. In the State, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.?32. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under:"32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25¬3¬1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24¬6¬2008."33. The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the respondents.34. The judgment in Ajithkumar (supra) relied on by the learned senior counsel for the appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category.35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated 11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the appellant in any manner36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. The State Government, in exercise of its powers conferred under Article 309 of the Constitution of India made Rules of 1967 vide notification dated 10.10.1967. As per sub¬rule (2) of Rule 8, the appointing authority has been given powers to relax age limit in favour of the candidates belonging to SC/ST and SEBC and in favour of women candidates to the extent indicated therein. The Ministry of Personnel, Public Grievances and Pensions vide Office Memorandum dated 22.05.1989 formulated a policy in tune with Article 16(4) of the Constitution of India, which enables the State Government to provide for reservation for the category of persons belonging to backward classes. Thereafter, the Ministry of Personnel, Public Grievances and Pensions vide Office Memorandum dated 01.07.1998 clarified the earlier O.M dated 22.05.1989.Thus, the appointments in the category of SC/ST and other backward classes to the post of class I and class III in the State Services are being governed by the aforesaid policies and the State Government and/or any Authorities effecting direct appointments are required to give effect to the aforesaid policy decision at the time of recruitment process viz. preparing the select list etc.19. It is evident from the above two circulars that a candidate who has availed of age relaxation in the selection process as a result of belonging to a reserved category cannot, thereafter, seek to be accommodated in or migrated to the general category seats.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.25. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post.On consideration of sub¬section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held asWe are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25¬3¬1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24¬6¬2008.The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the respondents.34. The judgment in Ajithkumar (supra) relied on by the learned senior counsel for the appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category.35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated 11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the appellant in any manner36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.