Vikas Sankhala & Ors Etc vs Vikas Kumar Agarwal & Ors Etc

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.

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 March 23, 2011 is concerned, the same is not warranted and relaxation up to 5% only could be given in view of the amendment Notification dated July 29, 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 give vide the State Government's decision dated March 23, 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.

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.

Insofar as validity of the action of the State Government in permitting those reserved category candidates who had secured more marks than the last candidate selected in the general category, to be counted against unreserved category post, is concerned, the discussion of the High Court can be divided in two parts. The High Court referred to certain circulars on the subject which were issued before the selection process had commenced, these are circulars dated June 17, 1996, March 04, 2002 and June 24, 2008. As per these circulars, only those reserved category candidates who have not taken any concession (like that of age, etc.) were entitled to compete against unreserved vacancies and be counted against them. The High Court held that since concession was availed of by the reserved category candidates in getting relaxation in TET pass marks, the migration to general category post was not admissible in terms of aforesaid circulars.

We, thus, do not agree with the interpretation that is given by the High Court and answer Question No. 1 holding that relaxation prescribed in letter dated March 23, 2011 in pass marks in TET examination for different reserved categories mentioned therein is legal and valid in law.

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 May 11, 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.

It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.

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These appeals are accordingly allowed in the manner indicated in this judgment, effect whereof would be as under:

All these appeals are disposed of accordingly. No order as to cost.

OCTOBER 18, 2016.

At the same time, we also need to consider C8- the constituted powers to suspend constitutions in the state of within- notion emergency often named as ‘ armed rebellion’, or external threats most poignantly manifest in the contemporary grammars and rhetoric of ‘wars on terror’.