Case: Gaurav Pradhan &amp; Others Vs. State of Rajasthan &amp; Others

marks of the TET ranging from 10% to 20% was allowed to different reserved categories. After availing such relaxation the reserved category candidates were selected as having obtained more marks than the last general category candidate and were included in the general category candidates. Different circulars issued by the State of Rajasthan including circulars dated 17.06.1996, 04.03.2002 and 11.05.2011 were noticed by this Court. The general category candidates contended that since relaxation was obtained prior to issuance of circular dated 11.05.2011, circular dated 11.05.2011 is not applicable and as per earlier circulars reserved category candidates having obtained relaxation in marks were not eligible to be included into general category candidates. This Court after noticing the above arguments, ultimately held that the relaxation given in the marks in TET examination is not part of recruitment process. In paragraph 80 of the judgment this Court reached on following conclusion:"80.....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."44. 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.45. The Division Bench as well as learned counsel appearing for the State of Rajasthan has relied on circular dated 11.05.2011. The Division Bench has observed that circular dated 11.05.2011 did not change the rules of game. Following observation has been made with regard to circular dated 11.05.2011:"In the instant case, State Government in supersession of its earlier policy decision regarding treatment to be given to the candidates belonging to reserved category who are selected against unreserved category vacancies, issued directives for guidance to the appointing authorities vide Circular dated 11/5/2011 that neither changed the eligibility criteria seeking employment nor manner & method of selection of suitable candidates and in our considered view, circular dated 11/05/2011 did not change Rules of the game after the game is played or process of selection is initiated as observed by the learned Single Judge but such policy decisions are always within realm of judicial review and this what the Court considered & examined policy decision of the Government impugned."46. As noticed above Rule 7(1) of 1989 Rules expressly provides that "reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion".(underlined by us). The circular of the Government shall be treated to be in force for the purpose of reservation which is in force at the time of recruitment. Recruitment commenced by the advertisement dated 7.10.2010 and 25.10.2010 at that time only circular dated 24.06.2008 was in force, hence, subsequent circular dated 11.05.2011 cannot be applied in the present recruitment. There cannot be any dispute that the policy of reservation can always be changed by the State Government and the State Government can change the manner and methodology of implementing the reservation and criteria of reservation of the reserved category candidates and general category candidates. It is also relevant to note that both learned Single Judge and Division Bench have not approved circular dated 11.05.2011 in toto. Both the Courts have held that apart from age relaxation, if the candidate has taken any other relaxation circular dated 11.05.2011 cannot help him in migrating into general category candidate.47. We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.49. On the question of existence of vacancies, although learned counsel for the appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned counsel for the State of Rajasthan. However, neither appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies.

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

Explanation:
1[ds]In the present case we are only concerned with the question of migration of reserved category candidate into general/open category candidate. Hence, it is sufficient to note the relevant orders issued by the Government in the abovethe present case there is no issue pertaining to the extent of reservation provided by the State Government to the SC, ST and OBC candidates. The issue involved in the present case is as to whetherthe reserved category candidates can be allowed to be migrated into general category candidates.The reservation is wide enough to include exemption, concession etc. The exemption, concession etc. are allowable to the reserved category candidates to effectuate and to give effect to the object behind Article 16 subclause (4) of the Constitution of India. The State is fully empowered to lay down the criteria for grant of exemption, concession and reservation and the manner and methodology to effectuate such reservation. The migration of reserved candidates into general category candidates is also part and parcel of larger concept of reservation and the Government orders issued on 17.06.1996, 04.03.2002 and 24.06.2008 were the Government orders providing for methodology for migration of reserved category candidates into general category candidates which was well within the power of State. Neither before us nor even before the High Court the aforesaid Government orders, last being 24.06.2008, were under challenge.It is relevant to note that in the case before us circular dated 24.06.2008 was not under challenge. The State has come up with circular dated 11.05.2011 which was issued during process of recruitment. The Division Bench has already recorded a finding that recruitment process had begun prior to circular dated 11.05.2011. The State clearly provided that candidates belonging to reserved category irrespective of having availed any of the special concessions secure bench mark prescribed for general/open category candidates if selected, such a reserved category candidate shall be counted against unreserved/open category candidates.31. We are of the view that judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and circular dated 25.03.1994 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 circular dated 24.06.2008.The contents of the above circular which speaks age relaxation and makes reserved category candidates ineligible to be treated into general category candidates is same as in para 6.2 of circular dated 24.06.2008 as noted above which is applicable in the present case. Case of Jitendra Kumar Singh is distinguishable with the present case as has been distinguished by this Court in Deepa E.V. case.Circular dated 26.07.2017 is the reiteration of earlier position as was provided by circular dated 24.06.2008 quoted above. Thus, the position is now well accepted even by State of Rajasthan that those candidates belonging to SC/ST/BC who have obtained concession of age are not eligible to be migrated to the unreserved vacancies. Circular dated 24.06.2008 being very much in existence, law laid down by this Court in Deepa E.V. holds the field and the State of Rajasthan was obliged to not migrate those SC/ST/BC category candidates who are in unreserved category, who have taken concession of age.In the event, the submission of learned counsel for respondent Nos.6 to 9 is accepted the above two parts of paragraph 6.2 shall become clearly contradictory. Since, in the beginning it is clearly stated that candidates of SC/ST/OBC shall be counted against unreserved vacancies whereas if second part read as contended by the learned counsel for the private respondents, the first part of paragraph becomes redundant and unnecessary. The scheme of circular dated 24.06.2008 is not so as contended by the learned counsel for the private respondents. The part on which reliance has been placed by the learned counsel for respondent Nos.6 to 9 is a part which deals with the case of women, persons with disabilities, sports persons, inservicemen or nongazetted employees and exservicemen, for those categories it is provided that if they have obtained marks more than the last person of the open competition category, they will be adjusted against unreserved candidates. Thus, the above submission of learned counsel for the private respondents cannot be accepted.We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above.48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.49. On the question of existence of vacancies, although learned counsel for the appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned counsel for the State of Rajasthan. However, neither appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies.