Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO . 5185 OF 2019
(Arising out of S.L.P. (Civil) No.3938 of 2018
NIRAVKUMAR DILIPBHAI MAKWANA … APPELLANT
VERSUS
GUJARAT PUBLIC SERVICE
COMMISSION & ORS. … RESPONDENTS
J U D G M E N T
S.ABDUL NAZEER, J.
1 . Leave granted.
. The question for consideration in this appeal is whether a
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candidate who has availed of an age relaxation in a selection
Signature Not Verified
Digitally signed by
process as a result of belonging to a reserved category, can
NEELAM GULATI
Date: 2019.10.21
16:58:03 IST
Reason:
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thereafter seek to be accommodated in/or migrated to the
general category seat?
3 . Brief facts of the case which are necessary for deciding
this appeal are:
4 . Gujarat Public Service Commission (for short 'GPSC') had
issued an advertisement dated 01.03.2010 and corrigendum
thereafter for 47 posts of Assistant Conservator of Forests (for
short 'ACF') (ClassII) and 120 posts of Range Forest Officer
(for short 'RFO') (ClassII). As per the said advertisement and
corrigendum, total 84 posts were to be filled in from
unreserved (general category) candidates. Out of the said 84
posts, 26 posts were reserved for women candidates, 48 posts
were to be filled in from socially and economically backward
classes (for short 'SEBC') category candidates. Out of 48 posts
for SEBC category candidates, 18 posts were reserved for
women candidates, 9 posts were to be filled in from Scheduled
Caste (for short 'SC') category candidates, out of which 2 posts
were reserved for women candidates. Similarly, 26 posts were
to be filled in from Scheduled Tribe (for short 'ST') category
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candidates, out of which 8 posts were reserved for women
candidates. It was also stipulated in the advertisement that
25% of the vacancies shall, as far as practicable, be filled up
by appointing candidates who possess BSc degree with
Forestry as the principal subject. GPSC had stipulated in the
advertisement that the candidates should submit their online
applications from 01.03.2010 to 06.04.2010. The details
about the educational qualifications, age, mode of examination
as well as the steps to submit the application have been
narrated in the advertisement.
. GPSC conducted preliminary test on 30.05.2010 and
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main written examination was held from 27.05.2013 to
02.06.2013. The result of the main written examination was
declared on 21.05.2014. 505 candidates who cleared the main
written examination were called for physical measurement
test. Personal interviews were conducted from 16.06.2014 to
31.07.2014.
6 . The appellant submitted an application in the category of
SEBC. He successfully passed the examination conducted by
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GPSC. In the list of selected candidates published on
25.09.2014, he was shown at serial no.138.
7 . It is the case of the appellant that while preparing the
merit list, GPSC has ignored the judgment of this Court in
Jitendra Kumar Singh and Anr. v. State of Uttar Pradesh
and Ors. , 2010 (3) SCC 119. Therefore, the appellant filed
Special Civil Application No. 1100 of 1015 before the learned
Single Judge of the High Court of Gujarat challenging
correctness of the aforesaid select list.
8 . The learned Single Judge by his order dated 11.06.2015
allowed the application in the following terms:
"The action of considering the meritorious
reserved category candidates (who secured
their position in general/open category on
account of their performance) in their
respective reserved category only because they
availed benefit of "concession" which cannot be
considered as "relaxation in merits" also set
aside since it is found to be contrary to the
decision of Hon'ble Apex Court in the case of
Jitendra Kumar Singh (supra)."
9 . Being aggrieved and dissatisfied with the order of the
learned Single Judge, GPSC filed Letters Patent Appeal praying
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for setting aside of the order passed by the learned Single
Judge. The Division Bench of the High Court by order dated
15.03.2017 has allowed the appeal and set aside the order of
the learned Single Judge as under:
"Keeping in view the decisions rendered by the
Hon'ble Supreme Court as well as this Court
discussed hereinabove and in view of the
discussion made by us in the aforesaid
paragraphs, we are of the opinion that the
State of Gujarat has framed the reservation
policy by Government Resolution dated
11.2.1986 and circulars dated 29.1.2000 and
23.7.2004 as well as in view of the statutory
provisions i.e. Recruitment Rules of 1967,
Rules of 2007, 2008 and 2009, we hold that all
those candidates belonging to a reserved
category, if they avail the benefit of age
relaxation, the same is to be considered as
relaxation in the standard and therefore such
candidates who got the benefit of age
relaxation are not entitled to be considered in
general category and their cases are required
to be considered for reserved category cases
only. Thus, the decision rendered by the
Hon'ble Supreme Court in the case of Jitendra
Kumar Singh (supra) would not be applicable
to the facts of the present case and the
relaxation of age in view of the policy of the
State Government can be said to be relaxation
in standard and the same cannot be
considered to be concession. We answer the
question posed for consideration accordingly."
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10 . In this appeal, the appellant has challenged the legality
and correctness of the aforesaid order of the Division Bench of
the High Court.
11 . We have heard Mr. V.K. Garg, learned senior counsel for
the appellant and Mr. Preetesh Kapur, learned senior counsel
for the respondents.
. Mr. Garg submits that the relaxation/concession in age
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granted to the candidates at the initial stage only to enable a
candidate belonging to the reserved category without granting
him/her any preferential advantage in the matter of selection
cannot be treated as an incident of reservation under Article
16(4) of the Constitution of India. The Circulars dated
29.01.2000 and 23.07.2004 issued by the Government of
Gujarat clearly show a concession in age in the matter of
selection to a post which cannot be treated as an incident of
reservation. Therefore, relaxation in age at the initial
qualifying stage would not fall foul of these circulars. Rule 4
of the ACF/RFO Competitive Examination Rules, 2008 read
with the schedule, clearly stipulates that preliminary test is
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merely to declare a candidate qualified for appearing in the
written examination. Examination and interview performance
alone would be the criteria for his/her selection for the
appointment to the post. Therefore, relaxation at the stage of
preliminary test would not amount to grant of benefit of
reservation for selection. It is argued that Section 8 of the U.P.
Public Services (Reservation for Scheduled Castes and
Scheduled Tribes) Act, 1994 is identically worded as circulars
dated 29.01.2000 and 23.07.2004 in the State of Gujarat.
Therefore, the ratio in (supra) shall be
Jitendra Kumar Singh
squarely applicable to the facts of the present case too. He
has also relied on the judgments of this Court in
Ajithkumar
P. and Ors. v. Remin K.R. and Ors. , 2015 (16) SCC 778 and
Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. ,
2017 (1) SCC 350, in support of his submission.
13 . On the other hand, Mr. Preetesh Kapur, learned senior
counsel submits that a candidate who has availed of an age
relaxation in the selection process as a result of belonging to a
reserved category cannot, thereafter, seek to be accommodated
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in general category seats. In this connection he has drawn
our attention to the Circulars dated 29.01.2000 and
23.07.2004. It is further submitted that judgment of this
Court in Jitendra Kumar Singh (supra) has no application to
the facts of this case. The decision was rendered in the
context of policy adopted by the State of U.P. In support of his
submissions, he has relied on the judgments of this Court in
Deepa E.V. v. Union of India and Ors. , 2017 (12) SCC 680,
and v.
Gaurav Pradhan and Ors. etc. etc. State of
Rajasthan and Ors. etc. etc. , 2018 (11) SCC 352. It is
argued that the relaxation in age granted at the initial stage in
the instant case, is necessarily an incident of reservation
under Article 16(4) of the Constitution of India.
14 . We have carefully considered the submissions of the
learned senior counsel made at the Bar and perused the
materials placed on record. For deciding the issue involved in
this appeal, certain important aspects are required to be
considered.
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15 . The State Government, in exercise of its powers conferred
under Article 309 of the Constitution of India made Gujarat
Civil Services Classification and Recruitment (General) Rules,
1967 (Rules of 1967) vide notification dated 10.10.1967. As
per subrule (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.
16 . In the meantime, the State Government in its General
Administration Department vide Government Resolution dated
11.12.1986 formulated a policy to the effect that the members
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belonging to the SC and ST categories who are selected for
appointment by direct selection to any service or post included
in the State Services or in the Subordinate Services on the
basis of their merits, shall be considered for appointment on
unreserved posts, which are filled in on merit along with other
general category members. As per the said Government
Resolution dated 11.12.1986, such appointments on merit of
the members belonging to such castes and tribes shall in no
way affect claims of the members of such castes and tribes for
appointment in the services or on the post reserved for them
under the Government orders issued from time to time. The
State Government vide Circular No.PVS1099MVN13G4
dated 29.01.2000 clarified that a reserved category candidate,
if has not availed of any relaxation viz. age limit, experience,
qualification, number of chances to appear in the examination,
the said candidate will be adjusted in the open category and in
case the candidate has availed any of the aforesaid relaxation,
he/she will have to be adjusted against the reserved seats.
This circular reads as under:
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"….After careful and mature consideration in
this regard, it is clarified that only those
Scheduled Castes, Scheduled Tribes and
Socially and Educationally Backward Classes
candidates who are selected on the same
standards as applied to the general category
candidates, shall be counted/adjusted against
unreserved posts and not against the reserved
posts. When relaxed standard have been
applied in selection of candidates belonging to
Scheduled Castes, Scheduled Tribes and
Socially and educationally Backward Classes
in terms of the age limit, experience,
qualification, permitted number of chances in
written examination, extended zone of
consideration larger than what is provided for
general category, etc., then the Scheduled
Castes, Scheduled Tribes and Socially and
Educationally Backward Classes candidates
selected under such arrangement shall be
counted against the reserved posts. Such
candidates would be deemed as unavailable for
consideration against unreserved posts."
17 . The State Government came out with a further
clarification vide Circular No.PVS102003900G4 dated
23.07.2004. In this circular, it was clarified as under:
"….After careful consideration of Government
in this regard, it is clarified that candidates
belonging to Scheduled Caste/ Scheduled
Tribe/ Socially and Educationally backward
classes, who got selected on merit through
competitive examination without availing any
relaxation in prescribed standards for
eligibility shall not be adjusted against the
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reserved posts but candidate belonging to the
Scheduled Case/ Scheduled Tribe/ Socially
and Educationally backward classes who got
selected by availing relaxation in qualifying
marks in competitive written examination and
personal interview shall be counted against the
reserved posts. However, reserved class
candidates who have been granted exemption
from paying examination fee shall not be
barred from competing for an unreserved
vacant post."
18 . 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.
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20 . The State of Gujarat framed the rules for regulating the
recruitment to the post of ACF in Gujarat Forest Services
Class II recruitment Rules 2007.
"(i) The Assistant Conservator of Forests in
the Gujarat Forest Service, ClassII
Recruitment Rules, 2007
(ii) The Assistant Conservator of Forests in
the Gujarat Forest Service ClassII
Recruitment (Amendment) Rules, 2008.
(iii) The Assistant Conservator of Forests in
the Gujarat Forest Service, ClassII
Recruitment (Amendment) Rules, 2009."
21 . Similarly, the State of Gujarat has made the following
rules for regulating recruitment to the post of RFO Class II:
"(i) The Range Forest Officer, ClassII
Recruitment Rules, 2008.
(ii) The Range Forest Officer, ClassII
Recruitment (Amendment) Rules, 2008.
(iii) The Range Forest Officer, ClassII
Recruitment (Amendment) Rules, 2009."
22 . The State Government vide Notification dated 18.09.2008
framed the Examination Rules of 2008.
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23 . In the advertisement published by the GPSC inviting
applications from the eligible candidates for the post of ACF
(Class II) and RFO (Class II) dated 01.03.2010, upper age limit
relaxation was granted to the candidates belonging to SC/ST
and SEBC category. It was also specifically stated in the
advertisement that if any candidate belonging to reserved
category who applies in the open category, such candidate
would not get the benefit of age relaxation. Such age
relaxation was granted in pursuance to Rule 8 of Rules of
1967.
"8. Condition as to prescribed qualifications:
1) xxxx
2) Where the prescribed qualification
include a qualification as to age limit the
appointing authority may relax the age limit in
favour of candidates belonging to the
Scheduled Castes, Scheduled Tribes and
Socially and Educationally Backward Class
and in favour of candidate who are women to
the following extent, that is to say:
(a) in the case of a service or post in a
subordinate service or of a State Service in
respect of which the prescribed age limit does
not exceed forty years, the age limit may be
relaxed to the extent of five years.
(b) in the case of service or post in the State
Service in respect of which prescribed age limit
exceeds forty years, the age limit may be
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relaxed to the extent of maximum five years, so
as to provide that upper age limit for entry in
the service does not exceed forty five years."
24 . 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
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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.
26 . Now, let us consider the judgment in Jitendra Kumar
(supra). In this case, this Court was considering the
Singh
interpretation of Subsection (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 subsection (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 subsection (1)."
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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 subsection (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 dated
25.03.1994 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
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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
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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.
. Similar question arose in (supra). In
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this case the Government had issued Circular dated
24.06.2008 which is as under:
“ Circular dated 2462008
6.2. In the State, members of the SC/ST/OBC
can compete against nonreserved 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:
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"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 2531994 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 2462008."
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
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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 manner.
36 . 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
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instant case is an incident of reservation under Article 16(4) of
the Constitution of India.
37 . There is no merit in this appeal. It is accordingly
dismissed. However, the parties are directed to bear their own
costs.
…………………………………………J.
(S. ABDUL NAZEER)
…………………………………………J.
(INDIRA BANERJEE)
New Delhi;
July 4, 2019.