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

2. Brief facts of the case which are necessary to be noted for deciding these appeals are:The Rajasthan Police Subordinate Service Rules, 1989 has been framed by the State of Rajasthan for recruitment on various posts in the Police Establishment. Part III of the Rules provides for recruitment and Rule 7 provides reservation of vacancies for the Scheduled Casts and the Scheduled Tribes. The State Government had from time to time issued various orders/circulars providing for reservation as well as methodology for giving effect to the reservation. Circulars dated 17.06.1996, 04.03.2002 and 24.06.2008 were issued by the State Government providing for reservation.3. The Rajasthan Public Service Commission issued an advertisement dated 14.10.2010 inviting applications for selection on various posts of constables. On 25.10.2010 another advertisement was issued by the Rajasthan Public Service Commission for selection on the post of Sub Inspector of Police. The selection process for the posts of constables as well as post of Sub Inspector of Police comprised of the different stages. During process of selection, the State Government issued a circular dated 11.05.2011 providing that candidates of BC/SBC/SC/ST irrespective of whether they have availed of any concession including relaxation in age shall be migrated against open category vacancies if they have secured more marks than the last candidate of open category. Select list of constables was issued on 01.07.2011 whereas result of Sub Inspector of Police was issued on 25.02.2013. Various writ petitions were filed by the general category candidates where they have questioned the circular dated 11.05.2011 and preparation of select list accordingly. The case of the general category candidates was that those reserved category candidates who have taken concession of relaxation of age in competition for post of constable/SI of Police cannot be migrated to general category vacancies. Learned Single Judge decided Special Writ Petitions vide judgment dated 27.12.2012 taking view that circular dated 11.05.2011 is not applicable since the recruitment process had began prior to circular 11.05.2011. It was held that migration of reserved category candidates to open/general category can be permitted as per earlier circular dated 24.06.2008. With regard to circular dated 11.05.2011, it was held that the said circular needs to be given proper interpretation. Learned Single Judge held that only those who have taken benefit of concession of fee and not the relaxation in age during the process of selection would be allowed to migrate to open/general category if obtained equal or more marks to the last candidate in open/general category. As noted above, other group of writ petitions was decided by the Single Judge vide judgment dated 08.11.2013 following the judgment dated 27.04.2012.4. The Division Bench disposed of all the Special Appeals by modifying the judgment of learned Single Judge dated 27.04.2012 and 08.11.2013 to the extent that the relaxation in age having been availed by candidates of reserved category who find place in the select list on dint of merit of general/open category vacancies, deserve to be migrated against general/open category vacancies. However, candidates availing special relaxation/concessions while participating in competitive test/process of selection, if find place in select/merit list of general/open category vacancies, they are not eligible to be migrated against open/general category vacancies. Aggrieved by the aforesaid judgment all these appeals have been filed.

Reasoning: 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.