ORISSA HIGH COURT : CUTTACK
W.P.(C) No.17057 of 2022
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Ramakanta Pradhan,
Aged about 28 years
Son of Padma Charan Pradhan
At: Badasurabila
P.O.: Bakugram
Via: Balanga, District: Puri
Pin: 752105. Petitioner.
…
-V -
ERSUS
1. State of Odisha
represented through
Commissioner-cum-Secretary
to Government, Commerce
& Transport Department
New Secretariat, Bhubaneswar
District: Khordha.
2. Transport Commissioner, Odisha
Rajaswa Bhawan, 6th Floor, Cuttack
District: Cuttack.
3. Odisha Staff Selection Commission
Barrack No.1, Unit No.V
Bhubaneswar: 751054
District: Khordha.
4. Padan Behera
Traffic Constable (OMVD)
C/o: Office of R.T.O., Puri.
W.P.(C) No.17057 of 2022 Page 1 of 98
5. Sisir Kumar Nayak
Traffic Constable (OMVD)
C/o: Office of R.T.O., Puri. Opposite parties.
…
Counsel appeared for the parties:
For the Petitioner : M/s. Amitav Das,
Ajit Kumar Dash,
Mitali Madhusmita Mohanty
and
Basumati Pradhan,
Advocates
For the Opposite Party Mr. Sailaza Nandan Das,
No.1 : Additional Standing Counsel
For the Opposite Party Mr. Pravakar Behera
No.2 : Standing Counsel (Transport)
For the Opposite Party : M/s. Surya Narayan Patnaik,
No.3 Priyambada Mohapatra,
Sonali Mohapatra and
Ashok Aurovindo Mohanty,
Advocates
For the Opposite Party : M/s. Bipin Kumar Choudhury
Nos.4 and 5 : and Harekrushna Nayak,
Advocates
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Dates of Hearing : 05.09.2024 :: Date of Judgment : 24.12.2024
J
UDGMEN T
M S R , J.
URAHARI RI AMAN —
Challenge is laid to the Order dated 22.05.2022 of the
Principal Secretary to Government of Odisha in
W.P.(C) No.17057 of 2022 Page 2 of 98
Commerce and Transport (Transport) Department
issued vide No. 4341 TRN-FE-CASE-0003-2021/T,
—
dated 23.05.2022 (Annexure-14), wherein the
representation to consider selection of the petitioner
for the post of Traffic Constable (OMVD) in Transport
Department under (men) category
the “unreserved ”
has been rejected.
1.1. Being dissatisfied with the Order dated 22.05.2022
(Annexure-14), the petitioner, invoking extraordinary
jurisdiction under Articles 226 and 227 of the
Constitution of India, has filed the instant writ
application with the following prayer(s):
It is, therefore, most humbly and respectfully prayed
“
that this Hon‟ble Court may be graciously pleased to
issue a Rule Nisi calling upon the opposite parties to
show cause as to why:
1. The Order No.4341 dated 23.05.2022 issued by
opposite party No.1 under Annexure-14 shall not
be quashed after declaring the same is illegal;
2. The opposite party No.1 shall not be directed to
consider the case of the petitioner on the basis of
the direction given by th
is Hon‟ble Court on the
basis of the Order dated 23.06.2021 passed in
WPC (OAC) No.1214 of 2016 and order dated
07.04.2022 passed in W.P.(C) No.8604 of 2022;
3. Direction shall not be given to opposite party No.3
to recast the merit list under Annexure-3 by
W.P.(C) No.17057 of 2022 Page 3 of 98
following Clause-11, i.e., Selection Procedure of
the Advertisement;
4. The selection of opposite party Nos.4 and 5
against unreserved vacancies shall not be held
illegal;
5. The opposite party No.3 shall not be directed to
select the petitioner as Traffic Constable (OMVD)
for Unreserved (Men) category;
If the opposite parties fail to show cause or show
insufficient cause, the rule may be made absolute;
And pass any other order(s) as would be deem fit and
proper;
”
Facts:
2. Facts emanating from the pleadings are narrated
herein below for comprehension of issue involved in
the present matter.
2.1. The petitioner, appointed on 28.07.2004 as a member
of the Home Guards bearing No.60/HG in the Office of
the Commandant of Home Guards, Puri, under the
Odisha Home Guards Act, 1961, has undergone the
Basic Course of training conducted from 02.01.2005
to 06.01.2006 and the Refresher Course of training
conducted from 10.11.2006 to 31.12.2006.
2.2. In response to the advertisement dated 11.12.2014
issued by the Odisha Staff Selection Commission
W.P.(C) No.17057 of 2022 Page 4 of 98
inviting applications for
(“OSSC”, for short)
recruitment to the post of Traffic Constable in OMVD
under the Commerce and Transport (Transport)
Department of Government of Odisha (for brevity,
, against 122 vacant posts
“Transport Department”)
(SC-20, ST-27, SEBC-14 and UR-61), the petitioner
appeared in the written test held on 07.06.2015 under
reserved category, while the opposite party No.4
“un ”
(Padan Behera) and the opposite party No.5 (Sisir
Kumar Nayak) have appeared under the categories of
Schedule Caste and Socially and Economically
Backward Class respectively. However, the names of
the opposite party Nos.4 and 5 have been reflected at
serial Nos.26 and 40 respectively in the order of merit
vide provisional select list published in the Notification
No.4152 IIE-97/2015 (Conf)/OSSC, dated
—
07.09.2015.
2.3. The opposite party No.3-OSSC selected candidates in
the following categories:
Category Number of posts Number of candidates
advertised selected
Scheduled Caste 20 29
Scheduled Tribes 27 29
Socially and Economically 14 46
Backward
Unreserved 61 17
It is asserted at paragraph 9 of the writ petition that
the number of selected candidates as mentioned in the
W.P.(C) No.17057 of 2022 Page 5 of 98
above table as against number of vacancies advertised
is in contradiction of conditions stipulated in Clause-
11 of the advertisement dated 11.12.20141 (Annexure-
1).
2.4. The petitioner filed an Original Application under
Section 19 of the Administrative Tribunals Act, 1985,
before the Odisha Administrative Tribunal, Cuttack
Bench, Cuttack, registered as O.A. No.1214 of 2016
which was re-registered as WPC (OAC) No.1214 of
2016 being transferred to this Court pursuant to
abolition of said Tribunal by virtue of Ministry of
Personnel, Public Grievances and Pensions
(Department of Personnel and Training) Notification F.
No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd
August, 2019), with a prayer to quash the provisional
select list dated 07.09.2015 and recast the merit list in
tune with Clause-11 of the Advertisement dated
11.12.2014. Said writ petition has come to be disposed
of on 23.06.2021 with the following Order:
***
“
1 Clause-11 of the Advertisement dated 11.12.2014 stood as follows:
“Selection procedure.—
The combined merit list shall be prepared basing on the aggregate of marks
secured in the written examination and career evaluation. The candidates
shall be selected in order of merit category-wise equal to the number of
vacancies advertised.”
W.P.(C) No.17057 of 2022 Page 6 of 98
It appears, there is no resistance at the instance of the
Petitioner to Annexure-3, re-casting of which is sought
for in the present Writ Petition. However, the Petitioner
has taken several grounds in his opposition to the list
prepared, vide Annexure-3. The dispute was filed in the
year 2016. There is no counter as of now. For the
opinion of this Court, involving the dispute raised
herein, in the first hand, the Competent Authority is
required to take call on the request of the Petitioner. It is
in this view of the matter, this Court directs O.P.1 to
treat this Writ Petition as a representation at the
instance of the Petitioner by way of objection to
Annexure-3 and take decision on the same, if
necessary, by involving the parties likely to be affected
by completing the entire exercise within a period of
three months from the date of communication of this
order. With the above, the Writ Petition stands disposed
of.
”
2.5. In compliance thereof, the opposite party No.1 having
rejected the representation, as stated to have been
communicated to him along with copy of writ petition
as well as aforesaid order of this Court by Speed Post
on 02.07.2021, by Order No.9556 TRN-FE-CASE-
—
0003-2021/T, dated 09.11.2021 the petitioner under
constraint had to approach this Court by filing writ
petition bearing W.P.(C) No.8604 of 2022, which was
disposed of vide Order dated 07.04.2022 with the
following observations:
3. This writ petition has been filed by the Petitioner
“
thereby challenging the order dated 09.11.2021
W.P.(C) No.17057 of 2022 Page 7 of 98
passed by the Commissioner-cum-Secretary to
Government, Commerce & TransportOpposite
Party No.1.
4. As it appears from the order, pursuant to the
direction of this Court dated 23.06.2021 passed in
WPC (OAC) No.1214 of 2016 (Ramakanta Pradhan
Vrs. State of Odisha & Others), petitioner had
approached the Authority by filing a
comprehensive representation. There was a
specific direction in the said writ petition to the
effect that taking into consideration certain
guidelines as has been laid down in order dated
23.06.2016, the representation was to be
considered and disposed of. However, the
representation of the petitioner has been rejected
on 09.07.2021 by the Authority.
5. On a perusal of the impugned order, it
appears that F.A.-cum-Special Secretary to
Government-Opposite Party No.1 has
although discussed the principle, but it
appears that the fact of the present case has
not been discussed and it has not been stated
as to how the petitioner is not entitled to the
benefit claimed by him. However, learned
counsel for the petitioner relying on certain
judgments submits that the Petitioner belong to a
separate category. The category the Petitioner
belongs to cannot be transferred under the U.R.
category. In such view of the matter, learned
counsel for the petitioner urges that the Authority
be directed to consider the matter in the light of
the judgments relied upon by the Petitioner as well
as earlier direction of this Court.
W.P.(C) No.17057 of 2022 Page 8 of 98
6. Learned counsel for the State on the other hand
submits that the Authority has not committed any
illegality by taking into consideration the judgment
of the Hon‟ble Supreme Court and rejecting the
same with reason. However, he also admits
that facts have not been analyzed in the
impugned order and it has also not been
stated as to how the petitioner is not entitled
to the benefit.
7. Considering the rival contentions of the parties
and taking into consideration the judgments of the
Supreme Court, this Court is of the
Hon‟ble
considered view that the order dated 09.11.2021
passed by the Opposite Party No.1 is not
sustainable in the eye of law, accordingly, the
same is hereby quashed. Further the Opposite
Party No.1 is directed to consider the matter
afresh after giving opportunity of hearing to the
present petitioner. Further it is open for the
opposite party No.1 to decide whether hearing the
affected parties required or not and in the event
the same is required they may be noticed.
Opposite Party No.1 shall do well to complete the
entire exercise within a period of three months
from the date of certified copy of this order.
8. With the aforesaid observation, the writ petition
stands disposed of.
”
2.6. Upon fresh consideration as directed by this Court
vide Order dated 07.04.2022, the Principal Secretary
of Transport Department vide Order No.4341 TRN-
—
FE-CASE-0003-2021/T, dated 23.05.2022, rejected
W.P.(C) No.17057 of 2022 Page 9 of 98
the claim of the petitioner and communicated vide
Memo No.4342/T, dated 23.05.2022 (Annexure-14),
content of which is reproduced hereunder:
“***
Whereas during hearing, observation of Hon‟ble Apex
Court in the case of Civil Appeal No.74 of 2010 filed by
Jitendra Kumar Singh & another Vrs. State of UP and
others2 was discussed, which says that
if a reserved category candidate gets selected on the
„
basis of merit, he cannot be treated as a reserved
candidate. The concessions availed of by the
reserved category candidates in age relaxation
and fee concession had no relevance to the
determination of the inter se merit on the basis of
the final written test and interview. The ratio of the
aforesaid judgment in fact permits reserved category
candidates to be included in the General Category
Candidates on the basis of merit.
‟
Whereas, in the case of Civil Appeal No.7211-7212 of
2019 filed by Pradeep Singh Dehal Vrs. State of
Himachal Pradesh and others3 was discussed. In the
,
said case the Hon‟ble Apex Court has observed that
every person is a general category candidate. The
„
benefit of reservation is conferred to Scheduled Castes,
Scheduled Tribes and OBC category candidates or such
other category as is permissible under law. It is a
consistent view of this Court starting from Indra
2 (2010) 3 SCC 119.
3 (2019) 9 SCC 276.
W.P.(C) No.17057 of 2022 Page 10 of 98
Sawhney & others Vrs Union of India & Others4 that if
a reserved category candidate is in merit, he will
occupy a general category seat. It may well happen that
some members belonging to, say, Scheduled Castes get
selected in the open competition field on the basis of
their own merit; they will not be counted against the
quota reserved for Scheduled Castes; they will be
treated as open competition candidates.
‟
In view of the above after due consideration of the claim
of the petitioner Sri Ramakanta Pradhan vis-(cid:224)-vis the
Orders of Hon‟ble Apex Court in the case of Civil Appeal
No.74 of 2010 filed by Jitendra Kumar Singh & another
Vrs. State of UP and others5 and in Civil Appeal
No.7211-7212 of 2019 filed by Pradeep Singh Dehal
Vrs. State of Himachal Pradesh and others6 for his
selection to the post of Traffic Constable under UR (Men)
category is found to have no merit, hence rejected.
Sd/- 21.05.2022
Principal Secretary to Govt.”
2.7. Questioning the legality of said decision of the
Government of Odisha-opposite party No.1, the
petitioner has knocked the doors of this Court
invoking extraordinary jurisdiction of this Court under
Article 226/227 of the Constitution of India.
Counter affidavit of the opposite party Nos.1 and 2:
4 (1992) Supp.3 SCC 217.
5 (2010) 3 SCC 119.
6 (2019) 9 SCC 276.
W.P.(C) No.17057 of 2022 Page 11 of 98
3. It is affirmed by the opposite party Nos.1 and 2 that
the provisional select list published by the OSSC in
consonance with requirement of Clause-11 of the
Advertisement dated 11.12.2014 was based on the
aggregate marks secured in the written examination
and career evaluation. All the candidates under the
list were placed in their respective positions in order of
merit regard being had to the total number of
vacancies advertised. The candidates belonging to any
socially reserved categories are entitled to be selected
in open or general category. If such candidates
belonging to reserved categories are entitled to be
selected on the basis of their own merit, their selection
cannot be counted against the reserved quota.
3.1. It is clarified that all the candidates who fulfil the
eligibility conditions, e.g., qualification, age and
physical test were permitted to participate in the
written examination. However, with invocation of
relaxation clauses with respect to age and grant of
concession in fee qua the candidates claiming
reservation were merely brought within the zone of
consideration so that they could be allowed to
participate in the open competition on merit. Once the
candidates were allowed to participate in the written
examination, it was immaterial as to which category
that candidate belongs. All the candidates had to
W.P.(C) No.17057 of 2022 Page 12 of 98
appear in the same written test and face the same
interview. There cannot be any cavil that grant in the
concession of fees and relaxation in upper age enables
such candidates belonging to the reserved category to
fall within the zone of consideration. Accordingly, nine
meritorious Scheduled Caste candidates, two Schedule
Tribe candidates and thirty-two candidates of Socially
and Economically Backward Classes were migrated to
the open category and got adjusted against the
vacancies relating to unreserved/general category. It is
further affirmed that no separate advertisement has
been issued for different categories of candidates, no
different examination has been conducted for different
categories of candidates and the combined merit list
has been published vide Annexure-3 basing on the
competitive examination as well as the carrier
evaluation. The provisional select list has been
published in order of merit to the total number of
vacancies, i.e., 122 as advertised.
Hearing:
4. As the pleadings have been completed and this matter
relates to recruitment for the post of Traffic Constable
of the year 2014 and in the meanwhile another
Advertisement bearing No.4328 IIE-124/2021/OSSC,
—
dated 23.12.2021 has been published, on the
W.P.(C) No.17057 of 2022 Page 13 of 98
concession of counsel for the respective parties, this
matter is taken up for final hearing at the stage of
admission.
4.1. Pursuant to Order dated 19.10.2022, the opposite
party No.3-OSSC has furnished status with regard to
above Advertisement dated 23.12.2021 (Annexure-15)
in shape of affidavit dated 20.10.2022, relevant
portion of which is as follows:
That the Odisha Staff Selection Commission
“5.(A)
(OSSC), opposite party No.3, published
Advertisement No.4328/OSSC, dated 23.12 .2021
for recruitment to the post of Traffic Constable
against 56 vacancies based on online requisition
filed by the State Transport Authority, Odisha,
Cuttack-opposite party No.2.
(B) The written examination was held on 30.07.2022
and 31.07.2022 through CBRE Mode.
(C) The physical measurement and physical test of
the shortlisted candidates was held on
21.09.2022.
(D) The certificate verification of the candidates who
qualified in the physical test was conducted on
20.09.2022.
After completion of the recruitment process select list
has been published vide Notification No.215(C)/OSSC,
dated 30.09.2022. The Bio-data-cum-Attestation forms
of the selected candidates have been sent to the
requisitioning authority for issue of appointment order.
”
W.P.(C) No.17057 of 2022 Page 14 of 98
4.2. In the above backdrop of facts, heard Sri Amitav Das,
learned Advocate for the petitioner and Sri Surya
Narayan Patnaik, learned Advocate for the opposite
party No.3-OSSC in the presence of learned Sri
Pravakar Behera, for the Transport Department and
Mr. Sailaza Nandan Das, learned Additional Standing
Counsel.
4.3. Though the opposite party Nos.4 and 5 entered
appearance through their advocates, have chosen not
to participate in the final hearing.
4.4. On conclusion of hearing the matter stood reserved for
preparation and pronouncement of Judgment/Order.
Arguments:
5. Sri Amitav Das, learned Advocate laying emphasis on
Clause-11 of the Advertisement dated 11.12.2014,
submitted that in spite of this Court directed on earlier
occasions while disposing of WPC (OAC) No.1214 of
2016 on 23.06.2021 and W.P.(C) No.8604 of 2022 vide
Order dated 07.04.2022, the opposite party No.1 on
erroneous application of ratio of judgments failed to
consider the case of the petitioner in proper
perspective.
5.1. He submitted that in view of Clause-11 of the
Advertisement vide Annexure-1, though combined
W.P.(C) No.17057 of 2022 Page 15 of 98
merit list was prepared, candidates should have been
-
selected in order of merit “category wise” equal to the
number of vacancies advertised. He submitted that the
opposite party Nos.4 and 5 having applied under the
reserved category, their merit should have been
considered under the respective categories and they
could not have been considered under the unreserved
categories.
5.2. By referring to written note of submission, he would
submit that in view of Gaurav Pradhan Vrs. State of
Rajasthan, (2018) 11 SCC 352 and Niravkumar
Dilipbhai Makwana Vrs. Gujarat Public Service
Commission, (2019) 7 SCC 383 distinguishing the
decision rendered in Jitendra Kumar Singh Vrs. State
of Uttar Pradesh, (2010) 3 SCC 119, as the opposite
party Nos.4 and 5, being Scheduled Caste and Socially
and Economically Backward Class candidates
respectively, were entitled to the benefit of relaxation/
concession in physical tests; as such, they were not
eligible to be migrated to the unreserved category.
Subtle distinction has been drawn by Sri Amitav Das,
learned counsel that the relaxation availed on account
of age and exemption from fee for participating in the
examination as ordinary examinee is quite different
from that of participating in the examination with
relaxation in eligibility criteria. Such vital aspect
W.P.(C) No.17057 of 2022 Page 16 of 98
having not been borne in mind while rejecting the
representation of the petitioner, the Order dated
23.05.2022 issued by the Transport Department,
being vitiated for non-application of judicious mind,
warrants interference.
6. Sri Pravakar Behera, learned Standing Counsel for the
Transport Department vehemently contended that the
Government of Odisha has not issued any circular or
executive instructions restricting migration of reserved
candidates to the unreserved posts on the basis of
merit. Therefore, he submitted that relaxation having
no relevancy in determining the merits of the
candidature of the opposite party Nos.4 and 5. It is
argued that once the reserved category candidate
participated in the final written examination and
secured more marks than that is secured by the last
selected candidate, it is, thus, immaterial as to which
category such candidate belongs.
6.1. Relying on Akash Bhunia Vrs. State of West Bengal,
2023 SCC OnLine Cal 3138, he contended that no
policy decision of the State of Odisha being available to
the effect that an examinee having availed of the age
relaxation as a reserved category candidate cannot be
migrated to the General category berth. The ratio of
decision rendered in the case of Jitendra Kumar Singh
W.P.(C) No.17057 of 2022 Page 17 of 98
Vrs. State of Uttar Pradesh, (2010) 3 SCC 119 is very
much applicable to the fact-situation of the present
case. Therefore, in exercise of power of judicial review,
the Order dated 23.05.2022 vide Annexure-14 needs
no indulgence.
Issue involved in the matter:
7. This Court is called upon to decide whether a
candidate, applying for consideration of his application
for recruitment under reserved category, on his merit
being adjudged could he be migrated to or adjusted
against the unreserved category notwithstanding that
he was allowed to participate in the recruitment
examination on availing benefit like exemption from
payment of fee and relaxation in upper age limit
including tests?
Case laws on the issue:
8. Before delving into merit of matter, it is necessary to
have reference to case laws referred to and relied upon
by the counsel for the respective parties.
8.1. Union of India Vrs. Dalbir Singh, (2009) 7 SCC 251:
2. The short question is: whether the Administrative
“
Tribunal is justified in directing the appellants to
appoint Respondent 1 as a selected candidate in
W.P.(C) No.17057 of 2022 Page 18 of 98
the general category even though he had not
applied under that category?
3. The appellants advertised in the newspaper for
selection to 20 vacant posts of mazdoor, both in
general and reserved category. Respondent 1
applied for selection in the reserved (OBC)
category and had annexed his OBC certificate
dated 04.05.1997. A separate Board
proceedings was prepared for the candidates
who had claimed concession on the basis of
OBC certificate and name of Respondent 1
was also (sic included) in the said proceedings.
***
5. It was intimated by SDO(C), Ambala, vide
their letter dated 11.07.2000 that the said
certificate was not issued by their office. The
same was informed to Respondent 1, and
thereafter, he produced another certificate dated
14.08.2000 issued by SDO(C), Ambala in which a
new address was given and Respondent 1 was
shown to be in OBC category on account of his
being of “Saini” caste and later on it was found
that “Saini” caste was not in the OBC category in
Punjab State. In view of this discrepancy in
the caste certificate produced, the
candidature of Respondent 1 came to be
rejected by the appellants and accordingly, no
letter of appointment was issued to Respondent 1.
***
8. The appellants had also stated that to fill up the
vacancies of mazdoors, an advertisement had
W.P.(C) No.17057 of 2022 Page 19 of 98
been issued separately for general and OBC
categories and pursuant to such advertisement,
the applicant had applied against OBC category
and not under general category and therefore, his
name was not considered under general category.
***
12. In the employment notice there is a mention of
number of posts available in general category and
Other Backward Classes (OBC category).
Pursuant to the aforesaid employment notice,
Respondent 1 filed his application to consider his
case under the OBC category. In support of his
claim, he had produced the caste certificate.
It so happened that the certificate produced
was found to be defective. This had resulted in
not enlisting his name in the select list. The
respondent at no point of time had claimed before
the authorities that if for any reason, his case
cannot be considered under OBC category, at least
the appellants should consider his case under the
general merit list.
13. From the pleadings it appears to us that the
appellants had prepared two sets of lists.
The first one being the list of those
candidates who had staked their claim in
the general merit and the second list
contains those candidates who had opted for
consideration of their case under OBC
category. The respondent at no point of time had
taken exception to the procedure adopted by the
appellants in preparing the select list. In our
opinion, having opted to consider his case
W.P.(C) No.17057 of 2022 Page 20 of 98
only under OBC category, he cannot
thereafter claim that his case requires to be
considered in the general merit, only because
he has scored better percentage of marks
than the last selected candidate in the
general merit.
”
8.2. Jitendra Kumar Singh Vrs. State of Uttar Pradesh,
(2010) 3 SCC 119:
11. The Division Bench noticed the submissions made
“
by the learned counsel for the parties in detail and
formulated seven issues which arose in the
appeals. The issues were as under:
1. What is the extent of selection of a reserved
category candidate against unreserved seats
and in what circumstances can he be
considered against unreserved vacancies
besides reserved seats. The relevant factors,
shades and nuances for such adjustment
also need to be identified, if any.
2. Whether Section 3(6) of the Act of 1994
would apply where a candidate of reserved
category though has availed relaxation
meant for reserved category candidates,
namely, of fee and age but in all other
respect, in the selection test, has competed
with general category candidates and has
secured more marks than the last selected
general category candidate. In other words
whether relaxation in age and fee would
deprive and outsource him from
competing against an unreserved seat in
W.P.(C) No.17057 of 2022 Page 21 of 98
an open competition with general
candidates.
3. Whether selection of reserved category
candidates against reserved and unreserved
seats constituting more than 50% is
unconstitutional or otherwise contrary to law.
4. Whether reservation of seats for women is
violative of Article 16(2) of the Constitution of
India.
5. Whether seats reserved for women can be
carried forward in case suitable candidates
are not available or the reservation being
horizontal and applicable to all categories,
the unfilled vacancies are to be filled by
suitable male candidates.
6. Whether keeping 2% sports quota separate
from the selection in question is illegal.
7. Whether selection in question is otherwise
vitiated on account of any alleged irregularity
or bungling.
41. A Constitution Bench of this Court in Indra
Sawhney case, 1992 Supp (3) SCC 217 reiterated
the need to balance the fundamental right of the
individual under Article 16(1) against the interest
and claim of the reserve category candidates
under Article 16(4) of the Constitution:
808. It needs no emphasis to say that the
„
principal aim of Articles 14 and 16 is equality
and equality of opportunity and that clause
(4) of Article 16 is but a means of achieving
W.P.(C) No.17057 of 2022 Page 22 of 98
the very same objective. Clause (4) is a
special provision though not an exception
—
to clause (1). Both the provisions have to be
harmonised keeping in mind the fact that
both are but the restatements of the principle
of equality enshrined in Article 14. The
provision under Article 16(4) conceived in
—
the interest of certain sections of society
—
should be balanced against the guarantee of
equality enshrined in clause (1) of Article 16
which is a guarantee held out to every citizen
and to the entire society. It is relevant to
point out that Dr. Ambedkar himself
contemplated reservation b
eing „confined to a
minority of seats‟ (see his speech in
Constituent Assembly, set out in para 693).
No other member of the Constituent
Assembly suggested otherwise. It is, thus,
clear that reservation of a majority of seats
[were] never envisaged by the Founding
Fathers. Nor are we satisfied that the
present context requires us to depart from
that concept.
‟
42. In Post Graduate Institute of Medical Education &
Research Vrs. Faculty Assn., (1998) 4 SCC (Pgimer
case) in para 32 the same principle was reiterated
as under:
32. Articles 14, 15 and 16 including Articles
„
16(4), 16(4-A) must be applied in such a
manner so that the balance is struck in the
matter of appointments by creating
reasonable opportunities for the reserved
classes and also for the other members of the
W.P.(C) No.17057 of 2022 Page 23 of 98
community who do not belong to reserved
classes. Such view has been indicated in the
Constitution Bench decisions of this Court in
M.R. Balaji Vrs. State of Mysore, AIR 1963
SC 649, T. Devadasan Vrs. Union of India,
AIR 1964 SC 179 and R.K. Sabharwal Vrs.
State of Punjab, (1995) 2 SCC 745. Even in
Indra Sawhney case, 1992 Supp (3) SCC 217
the same view has been held by indicating
that only a limited reservation not exceeding
50% is permissible. It is to be appreciated
that Article 15(4) is an enabling provision like
Article 16(4) and the reservation under either
provision should not exceed legitimate limits.
In making reservations for the backward
classes, the State cannot ignore the
fundamental rights of the rest of the citizens.
The special provision under Article 15(4) [sic.
16(4)] must therefore strike a balance
between several relevant considerations and
proceed objectively. In this connection
reference may be made to the decisions of
this Court in State of A.P. Vrs. U.S.V. Balram,
(1972) 1 SCC 660 and C.A. Rajendran Vrs.
Union of India, AIR 1968 SC 507. It has been
indicated in Indra Sawhney case, 1992 Supp
(3) SCC 217 that clause (4) of Article 16 is not
in the nature of an exception to clauses (1)
and (2) of Article 16 but an instance of
classification permitted by clause (1). It has
also been indicated in the said decision that
clause (4) of Article 16 does not cover the
entire field covered by clauses (1) and (2) of
Article 16. In Indra Sawhney case, 1992
W.P.(C) No.17057 of 2022 Page 24 of 98
Supp. (3) SCC 217 this Court has also
indicated that in the interests of the
backward classes of citizens, the State
cannot reserve all the appointments under
the State or even a majority of them. The
doctrine of equality of opportunity in clause
(1) of Article 16 is to be reconciled in favour of
backward classes under clause (4) of Article
16 in such a manner that the latter while
serving the cause of backward classes shall
not unreasonably encroach upon the field of
equality.
‟
These observations make it abundantly clear that
the reservations should not be so excessive as to
render the fundamental right under Article 16(1) of
the Constitution meaningless. In Indra Sawhney,
1992 Supp (3) SCC 217 this Court has observed
as under:
818. *** In our opinion, however, the result of
„
application of carry-forward rule, in whatever
manner it is operated, [shall] not result in
breach of 50% rule.
‟
Therefore, utmost care has to be taken that the
50% maximum limit placed on reservation in any
particular year by this Court in Indra Sawhney
case, 1992 Supp (3) SCC 217 must be maintained.
It must further be ensured that in making
reservations for the members of the Scheduled
Castes and Scheduled Tribes, the maintenance of
the efficiency of administration is not impaired.
W.P.(C) No.17057 of 2022 Page 25 of 98
43. It is in this context, we have to examine the issue
as to whether the relaxation in fee and upper age-
limit of five years in the category of OBC
candidates would fall within the definition of
“reservation” to exclude the candidates from open
competition on the seats meant for the general
category candidates.
44. Taking note of the submissions, the Division
Bench has concluded by considering Questions 1,
2 and 3 that concession in respect of age, fee, etc.
are provisions pertaining to eligibility of a
candidate to find out as to whether he can appear
in the competitive test or not and by itself do not
provide any indicia of open competition. According
to the Division Bench, the competition would start
only at the stage when all the persons who fulfil
the requisite eligibility conditions, namely,
qualification, age, etc. are shortlisted. We are of
the opinion that the conclusion reached by the
Division Bench on the issue of concessions and
relaxations cannot be said to be erroneous.
45. The selection procedure provided the minimum age
for recruitment as 21 years and the maximum age
of 25 years on the cut-off date. Relaxation of age
for various categories of candidates in accordance
with the Government orders issued from time to
time was also admissible. This included five
years’ relaxation in age to Scheduled Castes,
Scheduled Tribes, Other Backward Classes and
dependants of freedom fighters. Relaxation of age
was also provided in case of ex-servicemen. The
period of service rendered in the army would be
reduced for computing the age of the ex-army
W.P.(C) No.17057 of 2022 Page 26 of 98
personnel. After deducting the period of service
they had rendered in the army, they would be
deemed eligible. These were mere eligibility
conditions for being permitted to participate in the
selection process. Thereafter, the candidates had
to appear in a preliminary written test. This
consisted of 300 maximum marks and the
candidates were required to secure 50% or more
marks to participate in the further selection
process. Thereafter, the candidates had to
undergo physical test consisting of 100 marks.
Again a candidate was required to secure at least
50% or more marks.
46. It is not disputed before us that the standard
of selection in the preliminary written test
and the physical test was common to all the
candidates. In other words, the standard was
not lowered in case of the candidates
belonging to the reserved category. The
preliminary written test and the physical test were
in the nature of qualifying examinations to appear
in the main written test. The marks obtained in the
preliminary written examination and the physical
test were not to be included for determination of
final merit. It was only candidates who qualified
in the preliminary written test and the physical
test that became eligible to appear in the main
written test which consisted of 600 marks. As
noticed earlier, this had two papers general
—
Hindi, general knowledge and mental aptitude
test. A candidate who secured 40% or above
would be declared successful in the written test.
Thereafter, the candidates were to appear for
W.P.(C) No.17057 of 2022 Page 27 of 98
interview of 75 marks. The final merit list
would be prepared on the basis of merit
secured in the main written test and the
interview. The candidates appearing in the
merit list, so prepared, would be declared
selected.
47. It is common ground that more than 50,000
candidates appeared in the preliminary written
test. Upon declaration of the result on 22.09.2000,
only 3325 candidates were found successful.
Thereafter, the physical test which was conducted
from 29.10.2000 to 06.11.2000 reduced the
successful candidates to 1454. It was these 1454
candidates who sat in the main written test held
on 29.04.2001. Upon declaration of result, 1178
candidates were declared successful. The
candidates who were successful in the written test
were subjected to an interview between
18.06.2001 to 01.07.2001. The final result
published on 06.07.2001 declared only 1006
candidates successful.
48. In view of the aforesaid facts, we are of the
considered opinion that the submissions of
the appellants that relaxation in fee or age
would deprive the candidates belonging to
the reserved category of an opportunity to
compete against the general category
candidates is without any foundation. It is to
be noticed that the reserved category
candidates have not been given any
advantage in the selection process. All the
candidates had to appear in the same
written test and face the same interview. It is
W.P.(C) No.17057 of 2022 Page 28 of 98
therefore quite apparent that the concession
in fee and age relaxation only enabled
certain candidates belonging to the reserved
category to fall within the zone of
consideration. The concession in age did not in
any manner tilt the balance in favour of the
reserved category candidates, in the preparation
of final merit/select list.
49. It is permissible for the State in view of Articles 14,
15, 16 and 38 of the Constitution of India to make
suitable provisions in law to eradicate the
disadvantages of candidates belonging to socially
and educationally backward classes.
Reservations are a mode to achieve the
equality of opportunity guaranteed under
Article 16(1) of the Constitution of India.
Concessions and relaxations in fee or age
provided to the reserved category candidates
to enable them to compete and seek benefit of
reservation, is merely an aid to reservation.
The concessions and relaxations place the
candidates on a par with general category
candidates. It is only thereafter the merit of the
candidates is to be determined without any
further concessions in favour of the reserved
category candidates.
50. It has been recognised by this Court in Indra
Sawhney, 1992 Supp (3) SCC 217 that larger
concept of reservation would include incidental
and ancillary provisions with a view to make the
main provision of reservation effective. In Indra
Sawhney, 1992 Supp (3) SCC 217 it has been
observed as under:
W.P.(C) No.17057 of 2022 Page 29 of 98
743. The question then arises whether clause (4)
„
of Article 16 is exhaustive of the topic of
reservations in favour of backward classes.
Before we answer this question it is well to
examine the meaning and content of the
meaning has to
expression „reservation‟. Its
be ascertained having regard to the context
in which it occurs. The relevant words are
provision for the reservation of
„any
appointments or posts‟. The question is
whether the said words contemplate only
one form of provision namely reservation
simpliciter, or do they take in other forms of
special provisions like preferences,
concessions and exemptions. In our opinion,
reservation is the highest form of special
provision, while preference, concession and
exemption are lesser forms. The
constitutional scheme and context of Article
16(4) induces us to take the view that larger
concept of reservations takes within its
sweep all supplemental and ancillary
provisions … and relaxations, consistent no
doubt with the requirement of maintenance of
efficiency of administration the admonition
—
of Article 335. The several concessions,
exemptions and other measures issued by
the Railway Administration and noticed in
Akhil Bharatiya Soshit Karamchari Sangh
Vrs. Union of India, (1981) 1 SCC 246 are
instances of supplementary, incidental and
ancillary provisions made with a view to
make the main provision of reservation
effective i.e. to ensure that the members of
W.P.(C) No.17057 of 2022 Page 30 of 98
the reserved class fully avail of the provision
f
or reservation in their favour.‟
***
51. We are further of the considered opinion that the
reliance placed by Mr Rao and Dr. Dhavan on K.L.
Narasimhan, (1997) 6 SCC 283 is misplaced. The
learned Senior Counsel had relied on the following
observations:
5. *** Only one who does get admission or
„
appointment by virtue of relaxation of
eligibility criteria should be treated as
reserved candidate.
‟
The aforesaid lines cannot be read divorced from
the entire paragraph which is as under:
It was decided that no relaxation in respect
“5.
of qualifications or experience would be
recommended by Scrutiny Committee for any
of the applicants including candidates
belonging to Dalits and Tribes. In furtherance
thereof, the faculty posts would be reserved
without mentioning the speciality; if the Dalit
and Tribe candidates were available and
found suitable, they would be treated as
reserved candidates. If no Dalit and Tribe
candidate was found available, the post
would be filled from general candidates;
otherwise the reserved post would be carried
forward to the next year/advertisement. It is
settled law that if a Dalit or Tribe candidate
gets selected for admission to a course or
appointment to a post on the basis of merit
W.P.(C) No.17057 of 2022 Page 31 of 98
as general candidate, he should not be
treated as reserved candidate. Only one
who does get admission or appointment
by virtue of relaxation of eligibility
criteria should be treated as reserved
candidate.
‟
These observations make it clear that if a
reserved category candidate gets selected on
the basis of merit, he cannot be treated as a
reserved candidate.
52. In the present case, the concessions availed
of by the reserved category candidates in age
relaxation and fee concession had no
relevance to the determination of the inter se
merit on the basis of the final written test
and interview. The ratio of the aforesaid
judgment in fact permits reserved category
candidates to be included in the general
category candidates on the basis of merit.
53. Even otherwise, merely quoting the isolated
observations in a judgment cannot be treated as a
precedent de hors the facts and circumstances in
which the aforesaid observation was made.
”
8.3. Gaurav Pradhan Vrs. State of Rajasthan, (2018) 11
SCC 352:
19. The judgment of the learned Single Judge in
“
Chandra Bhan Yadav Vrs. State of Rajasthan,
2008 SCC OnLine Raj 875 was a judgment where
circulars issued by the State Government which
are referable to Rule 7(1) of the 1989 Rules
W.P.(C) No.17057 of 2022 Page 32 of 98
relevant in the context of selection in question,
were neither referred to nor considered. The
learned Single Judge only relied on the judgments
laying down that reserved category candidates
selected in open competition shall not be counted
in reserved quota and they shall be treated as
open category candidates. There cannot be any
dispute with the general proposition which stands
well settled as laid down by the nine-Judge Bench
in Indra Sawhney Vrs. Union of India, 1992 Supp
(3) SCC 217. ***
20. Another judgment of the learned Single Judge in
Mangla Ram Bishnoi Vrs. State of Rajasthan,
2010 SCC OnLine Raj 4648 relied on in the
impugned judgment Rajesh Singh Vrs. State of
Rajasthan, 2014 SCC OnLine Raj 6470 was a
judgment where the learned Single Judge has
placed heavy reliance on Jitendra Kumar Singh
Vrs. State of U.P., (2010) 3 SCC 119. The Circular
of the State Government dated 04.03.2002 as
applicable was considered in para 37. But the
learned Single Judge held Mangla Ram Bishnoi
Vrs. State of Rajasthan, 2010 SCC OnLine Raj
4648 that in view of the law laid down by this
Court in Jitendra Kumar Singh Vrs. State of U.P.,
(2010) 3 SCC 119 the Circular dated 04.03.2002
does not remain operative. We thus need to look
into the judgment of this Court in Jitendra Kumar
Singh Vrs. State of U.P., (2010) 3 SCC 119. The
Division Bench further held that since the
judgment of Mangla Ram Bishnoi Vrs. State
of Rajasthan, 2010 SCC OnLine Raj 4648
which was Judge-made law was holding
W.P.(C) No.17057 of 2022 Page 33 of 98
field, the State Government was required to
permit migration of the reserved category
candidates having obtained age relaxation
into general category candidates and no
exception can be taken in following the
Circular dated 11.05.2011.
21. As noted above, the nine-Judge Constitution
Bench Indra Sawhney Vrs. Union of India, 1992
Supp (3) SCC 217 had laid down that if the
members belonging to the reserved category
get selected in the open competition field on
the basis of their own merit, they will not be
counted against the quota reserved for
Scheduled Castes and they would be treated
as open competition candidates. In Post
Graduate Institute of Medical Education &
Research Vrs. K.L. Narasimhan, (1997) 6 SCC
283, a three-Judge Bench of this Court in para 5
has laid down the following:
5. *** It is settled law that if a Dalit or
„
Tribe candidate gets selected for
admission to a course or appointment to
a post on the basis of merit as general
candidate, he should not be treated as
reserved candidate. Only one who does get
admission or appointment by virtue of
relaxation of eligibility criteria should be
treated as reserved candidate.
‟
22. Article 16 clause (4) of the Constitution is an
enabling provision empowering the State for
making any provision for the reservation of
appointments or posts in favour of any backward
W.P.(C) No.17057 of 2022 Page 34 of 98
class of citizens which, in the opinion of the State,
is not adequately represented in the services
under the State. The orders issued by the State
Government from time to time were the orders
contemplated by Article 16 clause (4). It is well
settled by the nine-Judge Constitution Bench
[Indra Sawhney Vrs. Union of India, 1992 Supp (3)
SCC 217] that reservation in favour of backward
classes can be provided by a State Government by
an executive order also.
23. The reservation being the enabling provision, the
manner and extent to which reservation is
provided has to be spelled from the orders issued
by the Government from time to time. In the
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
whether the 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 clause (4)
of the Constitution. 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
W.P.(C) No.17057 of 2022 Page 35 of 98
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. As noted above, the High Court
itself has returned a finding that earlier
methodology of providing for migration of reserved
category candidates into general category
candidates was reversed by order dated
11.05.2011 by which despite taking any special
concession, reserved category candidates could be
migrated into general category candidates.
24. Now we come to the judgment of this Court in
Jitendra Kumar Singh Vrs. State of U.P.,
(2010) 3 SCC 119. In the above case also the
question which had come up for consideration was
as to whether reserved category candidates who
have taken the age relaxation and secured more
marks to the last candidate in the general
category candidate should be treated to be in
general category. In para 23 the issue which was
involved in the case was noted in the following
words:
23. We have heard the learned counsel for the
„
parties. Mr L.N. Rao, learned Senior Counsel
appearing on behalf of the appellants
submitted that the cardinal issue raised in
these appeals is whether the reserved
category candidates who had taken the
benefit of age or fee relaxation, are entitled to
W.P.(C) No.17057 of 2022 Page 36 of 98
be counted as general category candidates.
According to the learned Senior Counsel, the
Division Bench has erred in law in
concluding that relaxation in age and fee
cannot be treated to be relaxation in
standard of selection and shall not deny a
reserved category candidate s selection in
‟
open competition with general category
candidate.
‟
25. This Court had considered the above issue in
the context of the U.P. Public Services
(Reservation for Scheduled Castes, Scheduled
Tribes and Other Backward Classes) Act,
1994. Section 3 of the Act provided for reservation
in favour of ST, SC and other backward classes.
Section 3 sub-section (6) of the 1994 Act provided
as following:
3. Reservation in favour of Scheduled Castes,
„
Scheduled Tribes and Other Backward
Classes.
—
(1) In public services and posts, there shall be
reserved at the stage of direct recruitment,
the following percentages of vacancies to
which recruitments are to be made in
accordance with the roster referred to in sub-
section (5) in favour of the persons belonging
to Scheduled Castes, Scheduled Tribes and
Other Backward Classes of citizens ***
—
Provided that the reservation under clause (c)
shall not apply to the category of Other
W.P.(C) No.17057 of 2022 Page 37 of 98
Backward Classes of citizens specified in
Schedule II:
***
(6) If a person belonging to any of the
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).
‟
26. The State of U.P. issued Instructions dated
25.03.1994 which have been extracted in para 72
of the judgment. Para 72 is stated below:
72. Soon after the enforcement of the 1994 Act
„
the Government 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. These instructions, inter alia,
provide as under:
If any person belonging to reserved
„4.
categories is selected on the basis of
merits in open competition along with
general category candidates, then he
will not be adjusted towards reserved
category, that is, he shall be deemed to
have been adjusted against the
unreserved vacancies. It shall be
immaterial that he has availed any
facility or relaxation (like relaxation in
W.P.(C) No.17057 of 2022 Page 38 of 98
age-limit) available to reserved
category.‟
From the above it becomes quite apparent
that the relaxation in age-limit is merely to
enable the reserved category candidate to
compete with the general category candidate,
all other things being equal. The State has
not treated the relaxation in age and fee as
relaxation in the standard for selection,
based on the merit of the candidate in the
selection test i.e. main written test followed
by interview. Therefore, such relaxations
cannot deprive a reserved category
candidate of the right to be considered as a
general category candidate on the basis of
merit in the competitive examination. Sub-
section (2) of Section 8 further provides that
Government orders in force on the
commencement of the Act in respect of the
concessions and relaxations including
relaxation in upper age-limit which are not
inconsistent with the Act continue to be
applicable till they are modified or revoked.
‟
27. The last line of the Government Instructions dated
25.03.1994 as quoted above provided:
It shall be immaterial that he has availed
„
any facility or relaxation (like relaxation in
age-limit) available to reserved category.
‟
28. The provisions of Section 3 sub-section (6) of the
1994 Act read with Instructions dated 25.03.1994
clearly meant that grant of age relaxation to
W.P.(C) No.17057 of 2022 Page 39 of 98
reserved category candidate does not militate
against him being treated as general category
candidate if he has obtained more marks than the
last general category candidate.
29. This Court in the above case has also made
general observation [Jitendra Kumar Singh Vrs.
State of U.P., (2010) 3 SCC 119] especially in para
75 which is to the following effect:
75. In our opinion, the relaxation in age does not
„
in any manner upset the “level playing field”.
It is not possible to accept the submission of
the learned counsel for the appellants that
relaxation in age or the concession in fee
would in any manner be infringement of
Article 16(1) of the Constitution of India.
These concessions are provisions pertaining
to the eligibility of a candidate to appear in
the competitive examination. At the time
when the concessions are availed, the
open competition has not commenced. It
commences when all the candidates who
fulfil the eligibility conditions, namely,
qualifications, age, preliminary written
test and physical test are permitted to
sit in the main written examination.
With age relaxation and the fee
concession, the reserved candidates are
merely brought within the zone of
consideration, so that they can
participate in the open competition on
merit. Once the candidate participates
in the written examination, it is
immaterial as to which category, the
W.P.(C) No.17057 of 2022 Page 40 of 98
candidate belongs. All the candidates to be
declared eligible had participated in the
preliminary test as also in the physical test.
It is only thereafter that successful
candidates have been permitted to
participate in the open competition.
‟
30. The ratio of the judgment in Jitendra Kumar Singh
Vrs. State of U.P., (2010) 3 SCC 119 has to be
read in the context of statutory provisions and the
Government Orders dated 25.03.1994 and the
said observation cannot be applied in a case
where the Government orders are to the converse
effect. As noted above, the State of Rajasthan has
issued Circular dated 24.06.2008 where the
following is provided in Para 6.2:
Circular dated 24.06.2008
„
6.2. 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.
‟
31. It is relevant to note that in the case before us, the
Circular dated 24.06.2008 was not under
challenge. The State has come up with the Circular
dated 11.05.2011 which was issued during
process of recruitment. The Division Bench [Rajesh
Singh Vrs. State of Rajasthan, 2014 SCC OnLine
Raj 6470] has already recorded a finding that
recruitment process had begun prior to the
Circular dated 11.05.2011. The State clearly
W.P.(C) No.17057 of 2022 Page 41 of 98
provided that candidates belonging to
reserved category irrespective of having
availed any of the special concessions secure
benchmark prescribed for general/open
category candidates, if selected, such a
reserved category candidate shall be counted
against unreserved/open category
candidates.
32. We are of the view that the judgment of this
Court in Jitendra Kumar Singh Vrs. State of
U.P., (2010) 3 SCC 119 which was based on
statutory scheme and the 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
the Circular dated 24.06.2008.
***
36. In Deepa E.V. Vrs. Union of India, (2017) 12 SCC
680, reliance was also placed on Jitendra Kumar
Singh Vrs. State of U.P., (2010) 3 SCC 119. This
Court considered Jitendra Kumar Singh Vrs. State
of U.P., (2010) 3 SCC 119 and the Circular dated
25.03.1994 issued by the State of U.P. which
came up for consideration in Jitendra Kumar
Singh Vrs. State of U.P., (2010) 3 SCC 119. This
Court in Deepa E.V. Vrs. Union of India, (2017) 12
SCC 680 has distinguished Jitendra Kumar Singh
W.P.(C) No.17057 of 2022 Page 42 of 98
Vrs. State of U.P., (2010) 3 SCC 119 in paras 8, 9
and 10, which are to the following effect:
8. The learned counsel for the appellant mainly
„
relied upon the judgment of this Court in
Jitendra Kumar Singh Vrs. State of U.P.,
(2010) 3 SCC 119, which deals with the U.P.
Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994 and
Government Order dated 25.03.1994. On a
perusal of the above judgment, we find that
there is no express bar in the said U.P. Act
for the candidates of SC/ST/OBC being
considered for the posts under general
category. In such facts and circumstances of
the said case, this Court has taken the view
that the relaxation granted to the reserved
category candidates will operate a level
playing field. In the light of the express bar
provided under the proceedings dated 1-7-
1998 the principle laid down in Jitendra
Kumar Singh Vrs. State of U.P., (2010) 3 SCC
119 cannot be applied to the case in hand.
9. The learned Senior Counsel appearing for the
respondents has also drawn our attention to
paras 65 and 72 in Jitendra Kumar Singh
Vrs. State of U.P., (2010) 3 SCC 119 to
contend that the principle in Jitendra Kumar
Singh Vrs. State of U.P., (2010) 3 SCC 119 is
in the context of interpretation of the U.P. Act,
1994 and in the particular factual situation
of the said case. Paras 65 and 72, read as
under:
W.P.(C) No.17057 of 2022 Page 43 of 98
In any event the entire issue in the
„65.
present appeals need not be decided on
the general principles of law laid down
in various judgments as noticed above.
In these matters, we are concerned
with the interpretation of the 1994 Act,
the Instructions dated 25.03.1994 and
the G.O. dated 26.02.1999. The
controversy herein centres around the
limited issue as to whether an OBC
who has applied exercising his option
as a reserved category candidate, thus
becoming eligible to be considered
against a reserved vacancy, can also
be considered against an unreserved
vacancy if he/she secures more marks
than the last candidate in the general
category.
***
72. Soon after the enforcement of the 1994
Act the Government 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. These instructions, inter alia,
provide as under:
If any person belonging to
“4.
reserved categories is selected on
the basis of merits in open
competition along with general
category candidates, then he will
W.P.(C) No.17057 of 2022 Page 44 of 98
not be adjusted towards reserved
category, that is, he shall be
deemed to have been adjusted
against the unreserved
vacancies. It shall be
immaterial that he has availed
any facility or relaxation (like
relaxation in age-limit)
available to reserved category.
‟
From the above it becomes quite
apparent that the relaxation in age-limit
is merely to enable the reserved category
candidate to compete with the general
category candidate, all other things
being equal. The State has not treated
the relaxation in age and fee as
relaxation in the standard for selection,
based on the merit of the candidate in
the selection test i.e. main written test
followed by interview. Therefore, such
relaxations cannot deprive a reserved
category candidate of the right to be
considered as a general category candidate
on the basis of merit in the competitive
examination. Sub-section (2) of Section 8
further provides that Government orders in
force on the commencement of the Act in
respect of the concessions and relaxations
including relaxation in upper age-limit which
are not inconsistent with the Act continue to
be applicable till they are modified or
revoked.‟
W.P.(C) No.17057 of 2022 Page 45 of 98
10. Having regard to the observations in paras
65 and 72, in our view, the principles laid
down in Jitendra Kumar Singh Vrs. State of
U.P., (2010) 3 SCC 119 cannot be applied to
the case in hand. As rightly pointed out by
the High Court that judgment in Jitendra
Kumar Singh Vrs. State of U.P., (2010) 3 SCC
119 was based on the statutory
interpretation of the U.P. Act, 1994 and
Government Order dated 25.03.1994 which
provides for entirely a different scheme.
‟
37. The judgment of this Court in Deepa E.V. Vrs.
Union of India, (2017) 12 SCC 680 fully supports
the case of the appellants. In Deepa E.V. Vrs.
Union of India, (2017) 12 SCC 680 also the
Circular of the Central Government dated
01.07.1998/02.07.1997 provided the relevant
provision which is to the following effect:
6. *** *** In other words, when a relaxed
„ „
standard is applied in selecting SC/ST/OBC
candidates, for example in the age-limit,
experience, qualification, permitted number
of chances in written examination, extended
zone of consideration larger than what is
provided for general category candidates,
etc., the SC/ST/OBC candidates are to be
counted against reserved vacancies. Such
candidates would be deemed as unavailable
for consideration against unreserved
vacancies.‟ ***‟
38. The contents of the above Circular dated
01.07.1998/02.07.1997 which speaks of age
W.P.(C) No.17057 of 2022 Page 46 of 98
relaxation and makes reserved category
candidates ineligible to be treated into general
category candidates is same as in Para 6.2 of the
Circular dated 24.06.2008 as noted above which
is applicable in the present case. Jitendra Kumar
Singh Vrs. State of U.P., (2010) 3 SCC 119 is
distinguishable with the present case as has been
distinguished by this Court in Deepa E.V. Vrs.
Union of India, (2017) 12 SCC 680.
***
48. We are thus of the opinion that the Division Bench
[Rajesh Singh Vrs. State of Rajasthan, 2014 SCC
OnLine Raj 6470] erred in modifying the judgment
of the learned Single Judge [Madan Lal Vrs. State
of Rajasthan, 2012 SCC OnLine Raj 1182],
[Manish Sharma Vrs. State of Rajasthan, 2013
SCC OnLine Raj 4100] 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 [Rajesh Singh Vrs. State of Rajasthan,
2014 SCC OnLine Raj 6470] is unsustainable for
the reason as indicated above.
49. 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
W.P.(C) No.17057 of 2022 Page 47 of 98
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, 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.
”
8.4. Pradeep Singh Dehal Vrs. State of Himachal Pradesh,
(2019) 9 SCC 276:
14. We find that the process of conducting separate
“
interviews for the posts of Assistant Professor
under general category and OBC category is
wholly illegal. Though, none of the parties have
raised any dispute about it but since the same is
W.P.(C) No.17057 of 2022 Page 48 of 98
inherently defective, we are constrained to observe
so. Every person is a general category
candidate. The benefit of reservation is
conferred to Scheduled Castes, Scheduled
Tribes and OBC category candidates or such
other category as is permissible under law. It
is a consistent view of this Court starting from
Indra Sawhney Vrs. Union of India, 1992 Supp (3)
SCC 217 that if a reserved category candidate is
in merit, he will occupy a general category seat.
***
15. In the judgment reported as Vikas Sankhala Vrs.
Vikas Kumar Agarwal, (2017) 1 SCC 350 one of
the questions examined was whether reserved
category candidate who obtains more marks than
the last general category candidate is to be treated
as general category candidate. It was held that
such reserved category candidate has to be
treated as unreserved category candidate
provided such candidate did not avail any
other special concession. The Court held as
under:
84.2.Migration from reserved category to general
„
category shall be admissible to those
reserved category candidates who secured
more marks obtained by the last unreserved
category candidates who are selected,
subject to the condition that such reserved
category candidates did not avail any other
special concession. It is clarified that
concession of passing marks in TET
would not be treated as concession
falling in the aforesaid category.
‟
W.P.(C) No.17057 of 2022 Page 49 of 98
16. The concessions which were availed by the
reserved category candidates are in the nature of
age relaxation, lower qualifying marks,
concessional application money than the general
category candidates.
17. In view of the said fact, we find that the
selection process conducted by the University
cannot be said to be fair and reasonable.
Consequently, the University is directed to re-
examine the selection process by constituting an
Expert Committee who shall consider the
“publications” of the candidates who were being
considered in pursuance of Advertisement No. 3 of
2011 and make suitable recommendations
accordingly by having a joint merit list of all the
categories of candidates who applied for
appointment to the post of Assistant Professor.
However, in such selection process, the
appointment of candidates already selected will
not be disturbed, except the appellant whose
appointment shall be subject to the decision of the
University on the basis of recommendation of the
Expert Committee.
”
8.5. Niravkumar Dilipbhai Makwana Vrs. Gujarat Public
Service Commission, (2019) 7 SCC 383:
13. 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
W.P.(C) No.17057 of 2022 Page 50 of 98
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 OM dated 22.05.1989.
***
28. The judgment in Jitendra Kumar Singh Vrs. State
of U.P., (2010) 3 SCC 119, 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 Vrs. State of
U.P., (2010) 3 SCC 119 was based on the
statutory interpretation of the U.P. Act, 1994,
and the G.O. dated 25.03.1994 which
provides for an entirely different scheme.
Therefore, the principles laid down in
Jitendra Kumar Singh Vrs. State of U.P.,
(2010) 3 SCC 119 cannot be applied to the
said case.
30. Taking into consideration the above circular,
this Court held that the ratio of the judgment
W.P.(C) No.17057 of 2022 Page 51 of 98
in Jitendra Kumar Singh Vrs. State of U.P.,
(2010) 3 SCC 119 has to be read in the
context of statutory provisions and the G.O.
dated 25.03.1994 and the said observation
cannot be applied in a case where the
Government orders are to the converse effect.
***
31. The judgments in Deepa E.V. Vrs. Union of India,
(2017) 12 SCC 680 and Gaurav Pradhan Vrs.
State of Rajasthan, (2018) 11 SCC 352 fully
support the case of the respondents.
”
Analysis and discussions:
9. The petitioner contended that as against 20, 27, 14
and 61 numbers of posts under the categories of
Scheduled Caste, Scheduled Tribe, Socially and
Economically Backward Class and General
respectively, 29, 29, 46 and 17 numbers of Scheduled
Caste, Scheduled Tribe, Socially and Economically
Backward Class and General categories of candidates
were selected in the said provisional merit list. It is
urged that such selection is not in consonance with
the requirement contained in Clause-11 of the
Advertisement dated 11.12.2014.
9.1. Objecting strongly, Sri Amitav Das, learned counsel
submitted that the opposite party Nos.4 and 5 have
availed the benefits of relaxation as extended through
the Advertisement dated 11.12.2014 to the reserved
W.P.(C) No.17057 of 2022 Page 52 of 98
candidates. Referring to Deepa E.V. Vrs. Union of India,
(2017) 12 SCC 680 and Gaurav Pradhan Vrs. State of
Rajasthan, (2018) 11 SCC 352, wherein Jitendra
Kumar Singh Vrs. State of Uttar Pradesh, (2010) 3 SCC
119 has been distinguished and it has been
authoritatively propounded that said case is applicable
to particular factual matrix, the counsel for the
petitioner amplified his argument by stating that while
rejecting the case of the petitioner, the Principal
Secretary of Transport Department has fell in grave
error of law.
9.2. Perusal of Advertisement dated 11.12.2014 (Annexure-
1) reveals that the Recruitment Examination consisted
of:
i) Physical standard measurement and physical
test;
ii) Written Examination for those who qualify in
physical test; and
iii) Evaluation of Academic Career.
In physical standard measurement test the reserved
category are enjoined with relaxations as provided
under Clause-8 of the Advertisement dated
11.12.2014. The reserved candidates besides being
exempted from payment of the examination fees as
W.P.(C) No.17057 of 2022 Page 53 of 98
provided under Clause-6(4) of the Advertisement,
Clause-8 specifies criteria for Written Examination of
one and half hour duration comprising of 85 marks,
which may be quoted herein below:
8. Plan of Examination:
“
(Rule 7(2) of the Recruitment Rules):
The recruitment examination shall consist of the
following stages:
Sl Name of the Test/ Paper, Duration & Marks
No. Examination Type of Test/Examination
i Physical Standard Only qualifying in nature. No marks
measurement and
Physical Test
ii Written One paper of objective type 85 marks
examination (For with multiple choices of
those who qualify answers to be answered
in Physical Test) within 1 hour and 30
minutes in OMR answer
sheet using black/blue ball
point pen only.
iii Evaluation of Performance of the 15 marks
academic career candidate in +2 level
Examination or Equivalent
Examination
Total 100 marks
8(1) Physical Standard Measurement and Physical
Test:
(a) The candidate must have possessed the
following Physical Standard to be eligible for
the post:
Category Height Weight Chest: Chest:
Unexpanded expended
General/SEBC 168 CM 55 Kg 79 CM. 84 CM.
(Men)
General/SEBC 158 CM 47.5 Kg — —
(Women)
SC/ST (Men) 163 CM 50 Kg 76 CM. 81 CM.
SC/ST(Women) 153 CM 45 Kg — —
W.P.(C) No.17057 of 2022 Page 54 of 98
(b) The candidates who will qualify in the
physical standard prescribed above will be
required to undergo the following physical
test:
Item of physical test Men (all category) Women (all category)
i. Running In 6 minutes In 8 minutes
1.6 Kilometres 30 seconds 30 seconds
ii. Cycling In 4 minutes In 7 minutes
1.6 Kilometres 30 seconds
(c) The candidates qualifying in the Physical
Measurement and Physical Test will be
allowed to appear in the written
examination. The Commission shall
constitute Physical Test Board at district
level for each Physical Test Centre. The
decision of the Board shall be final.
8(ii) Written Examination (One and half hour
duration) 85 marks)
—
The qualified candidates in the Physical Test shall
be allowed to appear in the Written Examination.
The Written Examination will be of objective type
with multiple choices of answers to be responded
by the candidates in the OMR answer sheet. The
duration of the examination shall be of one and
half hour carrying full marks 85. There will be
total 85 questions carrying one mark each. The
question will be asked proportionately from Odia
Language, English Language, Arithmetic, General
Knowledge etc. of +2 standard. The Commission
at their discretionary fix a minimum qualifying
mark to be qualified in the written examination.
8(iii) Evaluation of Academic Career:
W.P.(C) No.17057 of 2022 Page 55 of 98
Candidates twice the number of vacancies in each
category, basing on their relative performance in
the main written examination shall be called for
verification of original certificate for assessment of
their academic career. The verification of original
certificate is mandatory for the candidates who
will qualify in the written examination. The
candidates who will not submit the DAF after
qualifying in the written examination and not
appear for verification of original certificates, no
career evaluation will be done in their favour and
their names will be deleted from the merit list.
There shall be a career making out of total 15
marks for performance in +2 certificates or
equivalent examination. The break-up of marks for
career evaluation will be as follows:
60% and above 15 Marks
—
50% and above 10 Marks
—
40% and above 05 Marks
—
Below 40%
No Marks”
—
9.3. It is strenuously argued by Sri Pravakar Behera,
learned Standing Counsel for the Transport
Department that mere exemption from fee and
relaxation in age in respect of reserved category
candidate would not take away their right to
participate in the examination along with general
candidates. To examine such contention, this Court
having minutely studied the “Plan of Examination”. It
is not only exemption from fee for Scheduled Tribe and
Scheduled Caste candidates in terms of Clause-6, but
W.P.(C) No.17057 of 2022 Page 56 of 98
also they are entitled to certain relaxation in
examination while undertaking along with other
candidates other than the reserved candidates.
9.4. Clause-8 of the Advertisement dated 11.12.2014 as
extracted herein above clearly depict the position that
candidates of General/SEBC (Men) are required to
possess physical standard of height, weight,
unexpanded chest and expanded chest of 168 cm., 55
kg., 79 cm. and 84 cm. respectively for being eligible
for the post of Traffic Constable, whereas SC/ST (Men)
are required to possess 163 cm., 50 kg., 76 cm. and
81 cm. respectively. Such concession/scaling down in
the physical standard measurement and physical test
would lead to demonstrate that relaxed standard is
applied in selecting a candidate for SC/ST category
candidate.
9.5. It does need emphasised that cautions have been
I
clipped under the heading “ ” at the
MPORTANT
beginning of the Advertisement, which read as follows:
Caution:
“
1. The candidates applying for the post must go
through the advertisement and ensure that they
fulfil all eligibility conditions prescribed for the
post/examination as laid down in this
advertisement. Admission of a candidate for the
Physical Test and written examination shall be
W.P.(C) No.17057 of 2022 Page 57 of 98
provisional and would be on the basis of the
information furnished by him/her in the on-line
application. If at any stage of recruitment or
thereafter, it is found that any information
furnished by the candidate in his/her application
is false/incorrect or the candidate has suppressed
any relevant information or the candidate
otherwise does not satisfy the eligibility criteria for
the post, his/her candidature will be cancelled
forthwith.
2. The candidates qualifying the Physical
Standard & Test will be only allowed to
appear in the written examination. The
candidates qualifying in the written examination
shall have to submit the DAF as per Clause-7 of
this advertisement within 15 days of the
declaration of the result for awarding marks in the
career evaluation. No further instruction shall be
issued for the
purpose.”
9.6. There is no gainsaid that Advertisement contained in
Annexure-1 is a document. As is understood,
d
„ ocument‟ is something that furnishes evidence,
specially a legal deed or other piece of writing.
Document shall also include any matter written,
expressed or described upon any substance by means
of letters, figures or marks or by more than one of
those means, which is intended to be used, or which
may be used, for the purpose of recording that matter.
Document will also include summons, notice,
requisition, order, other legal process and registers.
W.P.(C) No.17057 of 2022 Page 58 of 98
Any decipherable information, which is set down in a
lasting form would be a document. Document is a
written paper or something similar, which may be put
forward in evidence. The term „document‟ means a
document legally enforceable. An instrument on which
is recorded, by means of letter, figures or marks,
matters which may be evidentially used, would be
„document‟. The expression „document‟ would also
mean something, on which things are written, printed
or inscribed, and which gives information and would
also include, any written thing, capable of being
evidence, a paper or other material thing affording
information, proof or evidence of anything. Document
would also mean and include something to provide
with factual or substantial support for statements,
made on hypothesis proposed and also to equip with
exact references to authoritative supporting
information. In that sense, the Advertisement dated
11.12.2014, being a document, as is well-settled, it
must be read as a whole.
9.7. The Advertisement so read would unambiguously lead
to make one understand that the candidates qualifying
the Physical Standard & Test will be only allowed to
appear in the written examination. Furthermore, the
physical standard and test qua reserved candidates
vis-(cid:224)-vis general candidates are different.
W.P.(C) No.17057 of 2022 Page 59 of 98
Advantageous position is enjoyed by the reserved
candidates with their reduced height, weight and chest
measurement in comparison to the general candidates
for the same post, i.e., Traffic Constable.
9.8. Therefore, the opposite party Nos.4 and 5 were
required to be assessed accordingly in contrast with
the petitioner so far as Plan of E
“ xamination”
envisaged in Clause-8 of the Advertisement dated
11.12.2014 is concerned.
9.9. As is well settled in the above referred case laws more
particularly Niravkumar Dilipbhai Makwana Vrs.
Gujarat Public Service Commission, (2019) 7 SCC 383,
and ratio of said judgment if applied to the present
case, it can safely be said that SC/ST (Men) having
enjoyed the benefit of relaxation in height, weight and
chest (expansion/unexpansion), they could not have
been considered against unreserved vacancy. Under
such premise, the contention of the opposite party
Nos.1 and 2 that with age relaxation and fee
concession, the reserved candidates were brought
within the zone of consideration, so that they could
participate in the open competition on merit is a myth.
9.10. There is no dispute that every person is a general
category candidate notwithstanding the benefit of
reservation is conferred on Scheduled Caste,
W.P.(C) No.17057 of 2022 Page 60 of 98
Scheduled Tribe and SEBC category candidates or
such other category as is permissible under law. It is a
Supreme Court of India
consistent view of the Hon‟ble
that if a reserved category candidate secured more
marks than the last selected candidate of general
category, he will occupy a general category seat vide
Jitendra Kumar Singh Vrs. State of UP (2010) 3 SCC
119 and Paradeep Singh Dehal Vrs. State of Himachal
Pradesh and Others, (2019) 9 SCC 276.
9.11. However, Jitendra Kumar Singh Vrs. State of UP (2010)
3 SCC 119 has been distinguished in Gaurav Pradhan
Vrs. State of Rajasthan, (2018) 11 SCC 352.
9.12. Section 8 of the Odisha Reservation of Vacancies in
Posts and Services (for Scheduled Castes and
Scheduled Tribes) Act, 1975, stands as follows:
8. Relaxation and concessions.
“ —
For initial appointment:
(a) the upper age limit prescribed for recruitment shall
be increased by five years;
(a-1) the qualification regarding experience if any, may
be relaxed upto two years by the Orissa Public
Service Commission, the Selection Board or the
competent authority, as the case may be, provided
such relaxation is not inconsistent with efficiency;
W.P.(C) No.17057 of 2022 Page 61 of 98
(b) fees prescribed for admission into any competitive
examination or interview for recruitment shall be
exempted;
(c) the Scheduled Castes and the Scheduled Tribes
candidates shall be paid travelling allowance to
competitive recruitment examination or interview
at such rate as may be prescribed.
”
9.13. The State Government, after careful consideration,
have taken a policy decision that the posts and
services under the State shall be reserved for the
Socially and Educationally Backward Classes to the
extent of twenty-seven per centum in initial
recruitment and in Section 6 of the Odisha
Reservation of Posts and Services (for Socially and
Educationally Backward Classes) Act, 2008, it is
provided that,
6. Relaxation.
“ —
For appointment of candidates belonging to
Socially and Educationally Backward Class
—
(a) the upper age limit prescribed for the recruitment
shall be increased by five years ; and
(b) any other relaxation or concession may be allowed
by the State Government as may be prescribed.
”
9.14. In addition to the concession in fee and relaxation in
upper age limit, the reserved candidates do have
certain other benefits inter alia qualifications also. In
W.P.(C) No.17057 of 2022 Page 62 of 98
the present case the Advertisement dated 11.12.2014
(Annexure-1) clearly grants benefit to the reserved
candidate in eligibility criteria vis-(cid:224)-vis general
candidates. Therefore, the contention of Sri Pravakar
Behera, learned Standing Counsel for the Transport
Department deserves to be repelled.
9.15. The Saurav
Hon‟ble Supreme Court in the case of
Yadav Vrs. State of U.P., (2021) 4 SCC 542 had the
occasion to consider the possibility of mobility
(migration) from the reserved to unreserved category
based on merit. It is held,
26. The principle that candidates belonging to any of
“
the vertical reservation categories are entitled to
be selected in “Open or General Category” is well
settled. It is also well accepted that if such
candidates belonging to reserved categories are
entitled to be selected on the basis of their own
merit, their selection cannot be counted against
the quota reserved for the categories for vertical
reservation that they belong. Apart from the
extracts from the decisions of this Court in Indra
Sawhney Vrs. Union of India, 1992 Supp (3) SCC
217 and R.K. Sabharwal Vrs. State of Punjab,
(1995) 2 SCC 745 the observations by the
Constitution Bench of this Court in V.V. Giri Vrs. D.
Susi Dora, (1960) 1 SCR 426 = AIR 1959 SC 1318,
though in the context of election law, are quite
noteworthy: (AIR pp. 1326-27, paras 21-22)
W.P.(C) No.17057 of 2022 Page 63 of 98
21. *** In our opinion, the true position is that a
„
member of a Scheduled Caste or Tribe does
not forego his right to seek election to the
general seat merely because he avails
himself of the additional concession of the
reserved seat by making the prescribed
declaration for that purpose. The claim of
eligibility for the reserved seat does not
exclude the claim for the general seat; it is an
additional claim; and both the claims have to
be decided on the basis that there is one
election from the double-Member
constituency.
22. In this connection we may refer by way of
analogy to the provisions made in some
educational institutions and universities
whereby in addition to the prizes and
scholarships awarded on general competition
amongst all the candidates, some prizes and
scholarships are reserved for candidates
belonging to backward communities. In such
cases, though the backward candidates may
try for the reserved prizes and scholarships,
they are not precluded from claiming the
general prizes and scholarships by
competition with the rest of the candidates.
‟
***
38. The second view is thus neither based on any
authoritative pronouncement by this Court nor
does it lead to a situation where the merit is given
precedence. Subject to any permissible
reservations i.e. either social (vertical) or special
W.P.(C) No.17057 of 2022 Page 64 of 98
(horizontal), opportunities to public employment
and selection of candidates must purely be based
on merit. Any selection which results in
candidates getting selected against
Open/General category with less merit than
the other available candidates will certainly
be opposed to principles of equality. There
can be special dispensation when it comes to
candidates being considered against seats or
quota meant for reserved categories and in
theory it is possible that a more meritorious
candidate coming from Open/General
category may not get selected. But the
converse can never be true and will be
opposed to the very basic principles which
have all the while been accepted by this
Court. Any view or process of interpretation which
lead to incongruity as highlighted earlier, must be
rejected.
39. The second view will thus not only lead to
irrational results where more meritorious
candidates may possibly get sidelined as
indicated above but will, of necessity, result in
acceptance of a postulate that Open/General
seats are reserved for candidates other than those
coming from vertical reservation categories. Such
view will be completely opposed to the long line of
decisions of this Court.
”
9.16. It may be significant to notice Deependra Yadav Vrs.
State of Madhya Pradesh, (2024) 6 SCR 36 in the
context of existence of the statutory provisions the
:
Hon‟ble Supreme Court of India observed as follows
W.P.(C) No.17057 of 2022 Page 65 of 98
27. Significantly, in State of U.P. and others Vrs. Atul
“
Kumar Dwivedi and others, (2022) 1 SCR 28, this
Court had occasion to consider application of
moderation/ scaling of marks in a recruitment
process and as to when such an exercise would
be permissible. It was observed that normalization
of marks means increasing and/or decreasing the
marks obtained by students in different timing
sessions (shifts) to a certain number, as observed
by the High Court in its judgment, and it was
noted that such normalization techniques help in
comparing corresponding normalized values from
two or more different data sets in a way that it
eliminates the effects of the variation in the scale
of the data sets, i.e., a data set with large values
can be easily compared with a data set of smaller
values and the normalized score/percentile is
obtained by applying a formula. This Court,
accordingly, concluded that the exercise
undertaken in adopting the process of
normalization was quite consistent with the
requirements of law. This Court further observed
that decisions made by expert bodies, including
the Public Service Commissions, should not be
lightly interfered with, unless instances of
arbitrary and mala fide exercise of power are
made out.
28. On similar lines, in Tajvir Singh Sodhi and others
Vrs. State of Jammu and Kashmir and others,
(2023) 3 SCR 714, this Court observed that
interference in the selection process for public
employment should generally be avoided,
recognizing the importance of maintaining the
W.P.(C) No.17057 of 2022 Page 66 of 98
autonomy and integrity of the selection process.
Noting that Courts would recognize that the
process of selection involves a high degree of
expertise and discretion and that it would not be
appropriate for Courts to substitute their judgment
for that of a selection committee, it was observed
that it is not within the domain of the Court,
exercising the power of judicial review, to enter
into the merits of a selection process, a task which
is the prerogative of and is within the expert
domain of a selection committee, subject of course
to a caveat that if there are proven allegations of
malfeasance or violations of statutory rules, only
in such cases of inherent arbitrariness, can the
Courts intervene. 29. The detailed explanation by
the experts being rather technical, we do not
propose to burden this judgment with the same,
but the learned senior counsel/counsel opposing
the MPPSC, who also heard the experts, did not
bring to our notice any lacuna in the process
adopted or the formula applied, whereby injustice
was done to any candidate or any arbitrariness
crept in. We, therefore, hold that the process of
normalization and the consequential merger of the
marks secured by the candidates who appeared
in the two main examinations cannot be found
fault with.
30. We may also note that Rule 4(3)(d)(III) of the Rules
of 2015 patently harmed the interests of the
reservation category candidates, as even
meritorious candidates from such categories,
who had not availed any reservation
benefit/relaxation, were to be treated as
W.P.(C) No.17057 of 2022 Page 67 of 98
belonging to those reservation categories and
they were not to be segregated with meritorious
unreserved category candidates at the preliminary
examination result stage. As a result, they
continued to occupy the reservation category slots
which would have otherwise gone to deserving
reservation category candidates lower down in the
merit list of that category, had they been included
with meritorious unreserved category candidates
on the strength of their marks.
31. In Saurav Yadav and others Vrs. State of U.P. and
others, (2020) 11 SCR 281, a 3-Judge Bench of
this Court affirmed the principle that candidates
belonging to any of the vertical reservation
categories would be entitled to be selected in the
„open category‟ and if such candidates belonging
to reservation categories are entitled to be selected
on the basis of their own merit, their selection
cannot be counted against the quota reserved for
the categories of vertical reservation that they
belong to. It was further observed that
reservations, both vertical and horizontal, are
methods of ensuring representation in public
services and these are not to be seen as rigid
„slots‟, where a candidate‟s merit, which
otherwise entitles him to be shown in the open
general category, is foreclosed. The Bench further
observed that the „open category‟ is open to all
and the only condition for a candidate to be shown
in it is merit, regardless of whether reservation
benefit of either type was available to him or her.
32. This being the settled legal position, it appears
that the State of Madhya Pradesh itself realized
W.P.(C) No.17057 of 2022 Page 68 of 98
the harm that it was doing to the reservation
category candidates and chose to restore Rule 4,
as it stood earlier, which enabled drawing up the
result of the preliminary examination by
segregating deserving meritorious reservation
category candidates with meritorious unreserved
category candidates at the preliminary
examination stage itself. As this was the process
that was undertaken after the judgment in Kishor
Choudhary Vrs. State of Madhya Pradesh and
Another (W.P. No.542 of 2021 of Madhya Pradesh
High Court vide judgment dated 07.04.2022),
whereby a greater number of reservation category
candidates cleared the preliminary examination
and were held eligible to appear in the main
examination, there can be no dispute with the
legality and validity of such process.
”
9.17. Since this Court finds that the reserved candidates
have special benefit in respect of examination, the
ratio of the case laws referred to supra would indicate
that Jitendra Kumar Singh Vrs. State of Uttar Pradesh,
(2010) 3 SCC 119 basing on which the opposite party
No.1 has rejected the representation of the petitioner
was declared to be confined to facts of the said case
and distinguishable. The present case is not confined
to relaxation in upper age limit or exemption from fee,
but reserved candidates have enjoyed the benefit of
relaxation in standard of examination also. The
Government of Odisha has no such provision put in
place for migration of meritorious reserved candidates.
W.P.(C) No.17057 of 2022 Page 69 of 98
9.18. In Vikas Sankhala Vrs. Vikas Kumar Agarwal, (2017) 1
SCC 350 it has been observed that,
24. 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 (the 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.
***
59. First thing that has to be borne in mind is that
after prescribing 60% pass marks in the TET
examination, provision for relaxation is made in
same Para 9 giving liberty to the school
management (Government, local bodies,
Government aided and unaided) to consider giving
concessions to different kinds of reserved
W.P.(C) No.17057 of 2022 Page 70 of 98
categories mentioned therein “which has to be in
accordance with their extant reservation policy”.
This brings out one important feature. NCTE has
nowhere mandated that there cannot be
relaxation in pass marks in TET examination
for reserved category candidates or that the
standard would remain uniform irrespective
of the fact as to whether a person belongs to
general category or any of the reserved
categories insofar as this examination is
concerned. On the contrary, specific
authorisation is given to grant special
concessions. It, thus, accepts in principle
that relaxed standard for passing TET can be
prescribed by laying down a policy in this
behalf. In fact, there is no challenge to this
permissive provision. All that is argued by the
general category candidates is that there is no
such “extant policy”, meaning thereby if there is
such a policy, the action of the State Government
would be justified.
60. In fact, it hardly needs to be emphasised that the
Government may prescribe relaxed standards for
such reserved categories, as it is in conformity
with the spirit of the constitutional provisions
contained in Articles 15 and 16 read with Articles
38, 39(a) and 46 of the Constitution, which are
enabling provisions permitting the State to make
special provisions and provide relaxed standards
for persons belonging to Scheduled Castes,
Scheduled Tribes and socially and educationally
backward classes.
***
W.P.(C) No.17057 of 2022 Page 71 of 98
80. Having regard to the respective submissions
noted above, first aspect that needs
consideration is as to whether relaxation in
TET pass marks would amount to concession
in the recruitment process. The High Court has
held to be so on the premise that Para 9(a) dealing
with such relaxation in TET marks forms part of
the document which relates to the recruitment
procedure. It is difficult to accept this rationale or
analogy. Passing of TET examination is a
condition of eligibility for appointment as a
teacher. It is a necessary qualification without
which a candidate is not eligible to be considered
for appointment. This was clearly mentioned in the
Guidelines/Notification dated 11.02.2011. These
Guidelines pertain to conducting of TET; basic
features whereof have already been pointed out
above. Even Para 9 which provides for
concessions that can be given to certain reserved
categories deals with “qualifying marks” that is to
be obtained in TET examination. Thus, a person
who passes TET examination becomes eligible to
participate in the selection process as and when
such selection process for filling up of the posts of
primary teachers is to be undertaken by the State.
On the other hand, when it comes to recruitment of
teachers, the method for appointment of teachers
is altogether different. Here, merit list of successful
candidates is to be prepared on the basis of marks
obtained under different heads. One of the heads
is “marks in TET”. So far as this head is
concerned, 20% of the marks obtained in TET are
to be assigned to each candidate. Therefore, those
reserved category candidates who secured lesser
W.P.(C) No.17057 of 2022 Page 72 of 98
marks in TET would naturally get less marks
under this head. We would like to demonstrate it
with an example: Suppose a reserved category
candidate obtains 53 marks in TET, he is treated
as having qualified TET. However, when he is
considered for selection to the post of primary
teacher, in respect of allocation of marks he will
get 20% marks for TET. As against him, a general
candidate who secures 70 marks in TET shall be
awarded 14 marks in recruitment process. Thus,
on the basis of TET marks reserved category
candidate has not got any advantage while
considering his candidature for the post. On
-
the contrary, “level playing field” is
maintained whereby a person securing
higher marks in TET, whether belonging to
general category or reserved category, is
allocated higher marks in respect of 20% of
TET marks. 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.
81. 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 the
W.P.(C) No.17057 of 2022 Page 73 of 98
Circular dated 11.05.2011, 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.
82. In Jitendra Kumar Singh Vrs. State of U.P.,
(2010) 3 SCC 119, this Court has very
categorically held that relaxations given in
educational qualifications, etc. making a
person eligible to participate in selection
process would not be treated as availing
benefits in the recruitment/ employment and
the benefits envisaged have to be those which
have direct relation to recruitment/
employment and are relatable to the jovial
relationship of employer and employee. It is
also clarified that such benefits must occur
-
from and should be post “level playing field”.
We would like to reproduce the following
discussion from the said judgment touching upon
the aforesaid aspects :
48. In view of the aforesaid facts, we are of the
„
considered opinion that the submissions of
the appellants that relaxation in fee or age
would deprive the candidates belonging to
the reserved category of an opportunity to
compete against the general category
candidates is without any foundation. It is to
be noticed that the reserved category
W.P.(C) No.17057 of 2022 Page 74 of 98
candidates have not been given any
advantage in the selection process. All the
candidates had to appear in the same
written test and face the same interview. It is
therefore quite apparent that the concession
in fee and age relaxation only enabled
certain candidates belonging to the reserved
category to fall within the zone of
consideration. The concession in age did not
in any manner tilt the balance in favour of
the reserved category candidates, in the
preparation of final merit/select list.
49. It is permissible for the State in view of
Articles 14, 15, 16 and 38 of the Constitution
of India to make suitable provisions in law to
eradicate the disadvantages of candidates
belonging to socially and educationally
backward classes. Reservations are a mode
to achieve the equality of opportunity
guaranteed under Article 16(1) of the
Constitution of India. Concessions and
relaxations in fee or age provided to the
reserved category candidates to enable them
to compete and seek benefit of reservation, is
merely an aid to reservation. The
concessions and relaxations place the
candidates on a par with general category
candidates. It is only thereafter the merit of
the candidates is to be determined without
any further concessions in favour of the
reserved category candidates.
***
W.P.(C) No.17057 of 2022 Page 75 of 98
75. In our opinion, the relaxation in age does not
-
in any manner upset the “level playing field”.
It is not possible to accept the submission of
the learned counsel for the appellants that
relaxation in age or the concession in fee
would in any manner be infringement of
Article 16(1) of the Constitution of India.
These concessions are provisions pertaining
to the eligibility of a candidate to appear in
the competitive examination. At the time
when the concessions are availed, the open
competition has not commenced. It
commences when all the candidates who
fulfil the eligibility conditions, namely,
qualifications, age, preliminary written test
and physical test are permitted to sit in the
main written examination. With age
relaxation and the fee concession, the
reserved candidates are merely brought
within the zone of consideration, so that they
can participate in the open competition on
merit. Once the candidate participates in the
written examination, it is immaterial as to
which category, the candidate belongs. All
the candidates to be declared eligible had
participated in the preliminary test as also in
the physical test. It is only thereafter that
successful candidates have been permitted
to participate in the open competition.
‟
83. It is stated at the cost of repetition that
provision of giving 20% marks of TET score
was applied to all candidates irrespective of
the category to which he/she belongs and,
W.P.(C) No.17057 of 2022 Page 76 of 98
therefore, no concession or relaxation or
advantage or benefit was given in this behalf
which could disturb the level-playing field
and tilt advantage in respect of reserved
category candidate. On the contrary, the
reserved category candidates who had secured
less marks in TET examination are given lesser
marks in the recruitment process on the
application of the formula of allocating 20% marks
of TET score. Question (iii) is answered
accordingly.
”
9.19. Since the benefit of concession/relaxation was
extended only to the reserved candidate in the instant
case in terms of Clause-8 of the Advertisement dated
11.12.2014 with respect to physical test/examination
l-playing
it cannot be said that the doctrine of “leve
field” as devised in the aforesaid reported case7 by the
Hon‟ble Supreme Court of India, has been applied in
the present case.
9.20. A Co-ordinate Bench of this Court in the case of Ranjit
Kumar Sarangi Vrs. State of Odisha, WPC (OAC) No.188
of 2016, vide Judgment dated 06.02.2024, has made
the following observation:
4.1. It is contended that the Petitioner having belong to
“
UR category and taking into account the marks
secured by him, he was included in the select list
in the UR category with 191 rank in the common
7 Vikas Sankhala Vrs. Vikas Kumar Agarwal, (2017) 1 SCC 350.
W.P.(C) No.17057 of 2022 Page 77 of 98
merit list, 181 rank in the State rank and 9th
position in the district rank. It is contended that
since the private Opp. Party No.4 secured 49
marks which is higher than the present petitioner,
he was selected and appointed as against UR
vacancy and no illegality was committed by the
Commission in recommending his name and
consequential appointment of the said Opp. Party
No.4 as against UR vacancy.
***
9. Having heard learned counsel for the parties and
after going through the materials available on
record, it is found that pursuant to the
advertisement issued under Annexure1, the
Petitioner as well as Opp. Party No.4 to 6 made
their applications for the Post of Excise Constable.
As provided in the advertisement under Annexure-
1, under Para 7-A the prescribed height for UR
category was 168 cm and the prescribed height
for S.C & S.T candidate (men) was 163 cm. Since
Opp. Party No.4 was not having the required
height, he availed the benefit of relaxation of
height having belonged to S.T candidate and
accordingly qualified in the physical test and
subsequently participated in the selection
process. Since Opp. Party No.4 was allowed
the benefit of relaxation of height and
accordingly he participated in the selection
process, in view of the decision of the Hon’ble
Apex Court reported in the case of
Niravkumar Dilipbhai Makwana, as cited
(supra), Opp. Party No.4 should not have been
selected as against UR vacancies. The plea
W.P.(C) No.17057 of 2022 Page 78 of 98
taken by the Petitioner regarding availability of
relaxation in height by Opp. Party No.4 has not
been disputed either by the State-Opp. Parties or
by the Opp. Party No.4 while filing their respective
counters.
9.1. In view of such non-denial on the part of Opp.
Party No.4 as well as the State-Opp. Parties, it is
an admitted fact that Opp. Party No.4 participated
in the selection process by availing the benefit of
relaxation of height. Therefore, placing reliance on
t
he Hon‟ble Apex Court in the case of Niravkumar
Dilipbhai Makwana, as cited (supra), he should
not have been selected as against UR vacancy.
Therefore, this Court is inclined to interfere with
the selection of Opp. Party No.4 only and finds no
illegality or irregularity with the selection of Opp.
Party Nos.5 & 6. While interfering with the matter,
this Court quash the selection of Opp. Party No.4
and direct the Opp. Party Nos.3 and 8 to select
and provide appointment to the Petitioner as
Excise Constable taking into account his position
in the district wise merit list. Such action shall be
initiated and completed within a period of two
months from the date of receipt of this order.
9.2. However, while parting with the case and taking
into account the fact that Opp. Party No.4 has
completed more than 7 years of service after being
appointed by the Opp. Parties, Opp. Party No. 8
may consider his continuance as against any
available vacancy, if it is so permissible in the eye
of law. The Writ Petition is accordingly disposed of
with the aforesaid observation and direction.
”
W.P.(C) No.17057 of 2022 Page 79 of 98
9.21. It may be fruitful to have reference to what has been
submitted by Sri Surya Narayan Patnaik, learned
counsel appearing for the OSSC. By way of written
note of submission, he has stated thus:
7. That the petitioner has further relied upon a
“
decision of this Hon ble Court in the matter of
‟
Ranjit Kumar Sarangi Vrs. State of Odisha and
others in WPC (OAC) No.188 of 2016 which is also
not applicable to the present case. Be that as it
may from the narration of facts in the case of
Ranjit Kumar Sarangi it is crystal clear that Mr.
Sarangi had not only availed the age and
examination fees relaxation but also had
availed the relaxation in the physical
measurement. The petitioner has not raised any
such claim in the present case excepting his stand
that nobody belonging to reserved category can
compete against unreserved post unless and until
he has applied for the same.
”
9.22. Such a stance on behalf of the opposite party No.3 is a
misnomer. Clause-8 read with Clause-11 of the
Advertisement dated 11.12.2014 itself shows that the
reserved candidates have availed benefit of relaxation
in respect of measurement standards by scaling down
the eligibility criteria so far as physical test is
concerned.
9.23. It is apparent from the underlying principles contained
in the case laws discussed in the foregoing paragraphs
W.P.(C) No.17057 of 2022 Page 80 of 98
that relaxation in upper age has no role to play in
allowing the reserved candidates to compete in the
unreserved category on the basis of merit but as is
evinced from Clauses-8 and 11 of the Advertisement
dated 11.12.2014, it is abundantly clear that the
reserved category candidates had availed concession/
relaxation in the “physical standard measurement and
physical test” which enabled them to appear in the
written examination. To repeat it would suffice to
notice that for being eligible for the post of Traffic
Constable in OMVD, whereas General/SEBC (Men) are
required to possess 168 cm., 55 kg., 79 cm. and 84
cm. in respect of height, weight, chest (unexpanded)
and chest (expanded) respectively, the reserved
candidates in SC/ST (Men) the same is scaled down
and fixed at 163 cm., 50 kg., 76 cm. and 81 cm.
respectively. It is also noteworthy that in Clause 8(1)(c)
it has been clearly stipulated (rather restriction has
been put upon the general otherwise eligible
g in the
candidates) that “the candidates qualifyin
physical measurement and physical test will be
Such a
allowed to appear in the written examination”.
relevant and pertinent factor despite this Court‟s
direction to consider afresh vide Order dated
07.06.2022 in W.P.(C) No.8604 of 2022, the Principal
Secretary of Transport Department under
W.P.(C) No.17057 of 2022 Page 81 of 98
misconceived notion proceeded to reject the
representation of the petitioner by Order dated
23.05.2022 (Annexure-14).
9.24. Reliance placed by Sri Pravakar Behera, learned
Standing Counsel for the Transport Department on a
Division Bench decision of the Calcutta High Court in
the case of Akash Bhunia, 2023 SCC OnLine Cal 3138
is misplaced inasmuch as the same is distinguishable
on facts. In view of perspective of application of
precedents contained in Union Of India Vrs. Arulmozhi
Iniarasu, AIR 2011 SC 2731 = (2011) 7 SCC 3978,
reading of paragraph 57 of the Judgment in Akash
Bhunia makes it clear that the facts in the said before
Calcutta High Court was with respect to age
Hon‟ble
relaxation qua reserved candidate who was found
meritorious in the examination conducted with equal
standard for all the categories of candidates.
9.25. The impugned Order dated 23.05.2022 merely stating
ansport
that “the Appointing Authority, Tr
8 It has been laid down in Arulmozhi Iniarasu, AIR 2011 SC 2731 as follows:
“Before examining the first limb of the question, formulated above, it would be
instructive to note, as a preface, the well settled principle of law in the matter
of applying precedents that the Court should not place reliance on decisions
without discussing as to how the fact situation of the case before it fits in with
the fact situation of the decision on which reliance is placed. Observations of
Courts are neither to be read as Euclid‟s theorems nor as provisions of Statute
and that too taken out of their context. These observations must be read in the
context in which they appear to have been stated. Disposal of cases by blindly
placing reliance on a decision is not proper because one additional or different
fact may make a world of difference between conclusions in two cases.”
W.P.(C) No.17057 of 2022 Page 82 of 98
Commissioner, Odisha, Cuttack had given requisition
to Odisha Staff Selection Commission for selection of
candidates for recruitment to the post of Traffic
Constables vide their Letter No.446/TC, dated
so
10.01.2014” and “Transport Commissioner has al
attended the meeting on conduct of physical
measurement and physical tests of Traffic Constables
held under the Chairmanship of Chairman, OPSC”,
has not discussed the aforesaid material fact which
touches the very selection process and/or decision
making process of the opposite parties.
9.26. The last ditch effort of the opposite party No.3 to save
the select list prepared pursuant to examination
conducted in response to Advertisement dated
11.12.2014 (Annexure-14) is as follows:
The Annexure-3 Notification dated 07.09.2015
“11.
which is nothing but the select list and under
challenge before this Hon ble Court is evidently
‟
clear that such select list is valid for a period of
one year from the date of publication of such list
i.e. 07.09.2015. In absence of any interim order to
keep the validity of such select list open and in
view of Rule 15(3) of Odisha Staff Selection
Commission Rules, 1993 as amended from time to
time with respect to the validity of the select list
for a period of one year, the claim of the petitioner
and the prayer relating to issuing direction to the
W.P.(C) No.17057 of 2022 Page 83 of 98
OSSC to recast the merit list dated 07.09.2015 is
not maintainable.
”
In humble view of this Court such stand of the
opposite party No.3 falls to the ground inasmuch as
the petitioner has been diligently pursuing his matter.
The present writ petition is the third round of
litigation. Therefore, this Court does not subscribe to
the contention of the opposite party No.3.
Conclusion:
10. This Court, on perusal of the record and scrutiny of
material available thereon, finds that advantages have
been conferred on the reserved candidates with
respect to physical tests of height, weight and chest
(expanded and unexpanded) vis-(cid:224)-vis unreserved
candidates. The standard of tests was not the same
across the board as is apparent from Clause-8 of the
Advertisement dated 11.12.2014 (Annexure-1).
10.1. Such pertinent and crucial distinctive feature has
conspicuously been ignored by the Principal Secretary
to Government in the Commerce and Transport
(Transport) Department while considering the
representation of the petitioner pursuant to direction
of this Court vide Order dated 07.04.2022 passed in
W.P.(C) No.8604 of 2022. Without discussing merit of
the matter with respect to variation in standard of
W.P.(C) No.17057 of 2022 Page 84 of 98
physical tests between reserved candidate and
unreserved candidate in terms of Advertisement dated
11.12.2014 failed to apply the ratio contained in
Jitendra Kumar Singh Vrs. State of Uttar Pradesh,
(2010) 3 SCC 119 and Pradeep Singh Dehal Vrs. State
of Himachal Pradesh, (2019) 9 SCC 276.
10.2. It is unequivocally laid down in Niravkumar Dilipbhai
Makwana Vrs. Gujarat Public Service Commission,
(2019) 7 SCC 383 with reference to Deepa E.V. Vrs.
Union of India, (2017) 12 SCC 680 and Gaurav Pradhan
Vrs. State of Rajasthan, (2018) 11 SCC 352 that
was based
Jitendra Kumar Singh, (2010) 3 SCC 119 “
on the statutory interpretation of 1994 Act9 and the
Instructions dated 25.03.1994 which is entirely
different from the statutory scheme under
consideration .
”
10.3. Cursory glance at the decision rendered in Jitendra
Kumar Singh, (2010) 3 SCC 119 would reveal that the
U.P. Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994 was under consideration before the
(6) ibid. laid
Hon‟ble Supreme Court of India. Section 3
down that “If a person belonging to any of the
categories mentioned in sub-section (1) gets selected
9 The U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes
and Other Backward Classes) Act, 1994.
W.P.(C) No.17057 of 2022 Page 85 of 98
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) . Nonetheless, in the Odisha Reservation of
”
Vacancies in Posts and Services (for Scheduled Castes
and Scheduled Tribes) Act, 1975, no pari materia
provision is found. Therefore, the Principal Secretary
of Transport Department in making the impugned
Order dated 23.05.2022 has misapplied the ratio of
Jitendra Kumar Singh, (2010) 3 SCC 119 to the present
case.
10.4. At this juncture reference to Union of India Vrs.
Dhanwanti Devi, (1996) 6 SCC 44 may not be inept,
wherein it has been laid down as follows:
9. Before adverting to and considering whether
“
solatium and interest would be payable under the
Act, at the outset, we will dispose of the objection
raised by Shri Vaidyanathan that Hari Krishan
Khosla case, 1993 Supp (2) SCC 149 is not a
binding precedent nor does it operate as ratio
decidendi to be followed as a precedent and is per
se per incuriam. It is not everything said by a
Judge while giving judgment that constitutes a
precedent. The only thing in a Judge s decision
‟
binding a party is the principle upon which the
case is decided and for this reason it is important
to analyse a decision and isolate from it the ratio
decidendi. According to the well-settled theory of
W.P.(C) No.17057 of 2022 Page 86 of 98
precedents, every decision contains three basic
postulates
—
(i) findings of material facts, direct and
inferential. An inferential finding of facts is
the inference which the Judge draws from
the direct, or perceptible facts;
(ii) statements of the principles of law applicable
to the legal problems disclosed by the facts;
and
(iii) judgment based on the combined effect of the
above.
A decision is only an authority for what it actually
decides. What is of the essence in a decision is its
ratio and not every observation found therein nor
what logically follows from the various
observations made in the judgment. Every
judgment must be read as applicable to the
particular facts proved, or assumed to be proved,
since the generality of the expressions which may
be found there is not intended to be exposition of
the whole law, but governed and qualified by the
particular facts of the case in which such
expressions are to be found. It would, therefore, be
not profitable to extract a sentence here and there
from the judgment and to build upon it because
the essence of the decision is its ratio and not
every observation found therein. The enunciation
of the reason or principle on which a question
before a court has been decided is alone binding
as a precedent. The concrete decision alone is
binding between the parties to it, but it is the
W.P.(C) No.17057 of 2022 Page 87 of 98
abstract ratio decidendi, ascertained on a
consideration of the judgment in relation to the
subject-matter of the decision, which alone has the
force of law and which, when it is clear what it
was, is binding. It is only the principle laid down
in the judgment that is binding law under Article
141 of the Constitution. A deliberate judicial
decision arrived at after hearing an argument on a
question which arises in the case or is put in issue
may constitute a precedent, no matter for what
reason, and the precedent by long recognition may
mature into rule of stare decisis. It is the rule
deductible from the application of law to the facts
and circumstances of the case which constitutes
its ratio decidendi.
”
10.5. It is apposite to quote the following dictum from State
of Orissa Vrs. Mohd. Illiyas, (2006) 1 SCC 275:
12. When the allegation is of cheating or deceiving,
“
whether the alleged act is wilful or not depends
upon the circumstances of the case concerned and
there cannot be any straitjacket formula. The
High Court unfortunately did not discuss the
factual aspects and by merely placing
reliance on an earlier decision of the Court
held that prerequisite conditions were
absent. Reliance on the decision without looking
into the factual background of the case before it, is
clearly impermissible. A decision is a precedent
on its own facts. Each case presents its own
features. It is not everything said by a Judge while
giving judgment that constitutes a precedent. The
only thing in a Judge s decision binding a party is
‟
W.P.(C) No.17057 of 2022 Page 88 of 98
the principle upon which the case is decided and
for this reason it is important to analyse a decision
and isolate from it the ratio decidendi. *** A case
is a precedent and binding for what it
explicitly decides and no more. The words
used by Judges in their judgments are not to be
read as if they are words in an Act of Parliament.
In Quinn Vrs. Leathem, 1901 AC 495 : 85 LT 289 =
(1900-03) All ER Rep 1 (HL) the Earl of Halsbury,
L.C. observed that every judgment must be read
as applicable to the particular facts proved
or assumed to be proved, since the generality
of the expressions which are found there are
not intended to be the exposition of the whole
law but governed and qualified by the
particular facts of the case in which such
expressions are found and a case is only an
authority for what it actually decides.
”
10.6. The Principal Secretary of the Transport Department
has extracted a portion the judgment in Pradeep Singh
Dehal, (2019) 9 SCC 276. It may be relevant to take
note of the following distinctive factor contained in the
said judgment:
11. In this background, we examine the respective
“
contentions of the parties.
12. As per the conditions pertaining to Advertisement
No. 3 of 2011, the applications submitted earlier
were to be considered. This shows that the
“publications” of the writ petitioner were with the
University when the writ petitioner was granted
marks for “publications”. Even if the Selection
W.P.(C) No.17057 of 2022 Page 89 of 98
Committee has undergone a change as well as
norms of selection as per the Regulations, the
Selection Committee was within its jurisdiction not
to award any marks for “publications”, if it was
not meeting the requisite conditions. But
surprisingly, the writ petitioner has not been
granted any marks under the heading
5.2012,
“publications” in the interview held on 12.0
when the candidates for under OBC category were
interviewed but the writ petitioner was granted
five marks f
or “publications” when the interview
was being conducted for the post of Assistant
Professor under general category on 13.05.2012.
Though, the writ petitioner has not appeared in the
interview but the fact remains that he has been
granted five marks for “publications”. It is the
same Selection Committee who conducted
interview on 12-5-2012 and on 13.05.2012.
Therefore, the stand of the appellant that the writ
petitioner has not submitted any “publications”
does not merit acceptance. Such “publications”
were before the Search Committee when the writ
petitioner was interviewed on 13.05.2012.
13. But it is equally true that it is for the experts to
award marks for “publications”. The High Court,
while exercising the power of judicial review, does
not sit in the arm chair of the experts to award the
marks for publications, that too, on the basis of an
earlier selection process. The marks obtained by
the writ petitioner under the heading
.05.2012 were not before the
“publications” on 13
High Court. The appellant was granted three
marks for “publications” in the earlier selection
W.P.(C) No.17057 of 2022 Page 90 of 98
process initiated vide Advertisement No. 3 of 2010.
Such “publications” were also required to be taken
into consideration by the Selection Committee.
14. We find that the process of conducting
separate interviews for the posts of Assistant
Professor under general category and OBC
category is wholly illegal. Though, none of the
parties have raised any dispute about it but since
the same is inherently defective, we are
constrained to observe so. Every person is a
general category candidate. The benefit of
reservation is conferred to Scheduled Castes,
Scheduled Tribes and OBC category
candidates or such other category as is
permissible under law. ***
15. In the judgment reported as Vikas Sankhala Vrs.
Vikas Kumar Agarwal, (2017) 1 SCC 350 one of
the questions examined was whether reserved
category candidate who obtains more marks than
the last general category candidate is to be treated
as general category candidate. It was held that
such reserved category candidate has to be
treated as unreserved category candidate
provided such candidate did not avail any
other special concession. ***
16. The concessions which were availed by the
reserved category candidates are in the
nature of age relaxation, lower qualifying
marks, concessional application money than
the general category candidates.
”
W.P.(C) No.17057 of 2022 Page 91 of 98
17. In view of the said fact, we find that the
selection process conducted by the University
cannot be said to be fair and reasonable.
Consequently, the University is directed to re-
examine the selection process by constituting an
Expert Committee who shall consider the
“publications” of the candidates who were being
considered in pursuance of Advertisement No. 3 of
2011 and make suitable recommendations
accordingly by having a joint merit list of all the
categories of candidates who applied for
appointment to the post of Assistant Professor.
However, in such selection process, the
appointment of candidates already selected will
not be disturbed, except the appellant whose
appointment shall be subject to the decision of the
University on the basis of recommendation of the
Expert Committee.
”
10.7. Notwithstanding this Court directed by Order dated
07.04.2022 while disposing of second round of
litigation by the present petitioner vide W.P.(C)
No.8604 of 2022 that the matter required
consideration afresh, said Secretary has, on an
erroneous perception of legal position enunciated by
the Hon‟ble Supreme Court of India, rejected the
representation without considering the matter on the
facts in the light of discussion made hereinabove. The
facts as emanate from the Advertisement dated
11.12.2014 is tell-tale and manifestly clear and
unambiguous. There is no disputed question of fact
W.P.(C) No.17057 of 2022 Page 92 of 98
involved in the present matter with respect to grant of
concession/relaxation in physical test qua reserved
candidates for the post of Traffic Constable.
10.8. If the present case is examined keeping the aforesaid
perspective in view, the conclusion is obvious that the
Order dated 23.05.2022 vide Annexure-14 cannot
withstand judicial scrutiny for the reasons inter alia,
i. The Principal Secretary to Government in the
Commerce and Transport (Transport)
Department has failed to apply the ratio of
decisions in its right earnest.
ii. He ignored to discuss the factual merit of the
matter as the Advertisement dated 11.12.2014
indisputably leads to demonstrate that apart
from relaxation in upper age limit and exemption
from payment of fee, the reserved candidates
were allowed to avail the benefit qua eligibility
criteria for the post of Traffic Constables. It may
deserve to be observed that, when a relaxed
standard in test/examination (Clause-8 read with
Caution contained in the Advertisement dated
11.12.2014) is permitted to the reserved
candidates, the same is construed to have
expanded the zone of consideration larger than
what is provided for general category candidates.
W.P.(C) No.17057 of 2022 Page 93 of 98
Thus, such reserved candidates who have availed
the benefit of relaxation in the criteria fixed in the
test/examination would be deemed as
unavailable for consideration against unreserved
candidates.
iii. Relaxing the upper age limit and granting
exemption from payment of fee for the benefit of
candidates applying under the reserved category
could be understood; but this Court is not made
aware by the opposite parties as to the rationality
behind relaxing the criteria for qualifying
examination with respect to measurement of
height, weight and chest (expanded and
unexpanded). Therefore, this Court is of the
opinion that such candidates of reserved category
who are selected on the same standard as
applied to the general candidates can be adjusted
against unreserved category. Thus, the Principal
Secretary, Transport Department has misdirected
himself in applying the principles enunciated in
Jitendra Kumar Singh, (2010) 3 SCC 119 and
Pradeep Singh Dehal, (2019) 9 SCC 276 to the
fact-situation of the present case.
iv. On misreading of said decisions, said authority
failed to exercise his conscientious mind
W.P.(C) No.17057 of 2022 Page 94 of 98
particularly when there is no pari materia
provision contained in the Odisha Reservation of
Vacancies in Posts and Services (for Scheduled
Castes and Scheduled Tribes) Act, 1975 nor in
the Odisha Reservation of Posts and Services (for
Socially and Educationally Backward Classes)
Act, 2008, in comparison to provisions contained
in the U.P. Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994, which was under
consideration in Jitendra Kumar Singh, (2010) 3
SCC 119. As Jitendra Kumar Singh, (2010) 3 SCC
119 has application to particular fact-situation,
in absence of any provision in this State for
migration of candidate who made application
under reserved category, having availed the
benefit of concession/relaxation in the standard
of test compared to the test specified for the
general candidate, the migration of such
candidates under the unreserved category is not
permissible.
v. It is not the case of the opposite parties or even
sought to argue that the opposite party Nos.4
and 5 have not availed benefit under Clause-8 of
the Advertisement dated 11.12.2014 (Annexure-
1). It is also not the case of the opposite parties
W.P.(C) No.17057 of 2022 Page 95 of 98
that the opposite party Nos.4 and 5 have not
claimed reservation while applying for the post of
Traffic Constable in pursuance to the terms of
said advertisement. Nothing is also demonstrated
by the opposite parties particularly the opposite
party No.3-OSSC that the select list was prepared
in consonance with Clause-11 of said
Advertisement, i.e., the candidates were selected
in order of merit - equal to
“ ”
CATEGORY WISE
number of vacancies advertised. However, to
justify the selection of candidates, the opposite
party Nos.1 and 2, who have not prepared the
provisional select list, filed counter affidavit by
asserting as follows:
7. That it is humbly submitted thatthe
“
provisional selection list under Annexure-3
published by the Odisha Staff Selection
Commission pursuant to Clause-11 of the
advertisement under Annexure-1 basing on
the aggregate mark secured in the written
examination and career evaluation. All the
candidates under the list placed in their
respective position in order of merit for the
total number of vacancies advertised. It is
settled proposition of law that the candidates
belonging to any socially reserved categories
are entitled to be selected in open or general
category. It is also well accepted that if such
candidates belonging to reserve categories
W.P.(C) No.17057 of 2022 Page 96 of 98
are entitle to be selected on the basis of their
own merits, their selection cannot be counted
against the quota reserved for the categories
for the social reservation that they belong.
The aforesaid settled principle of law has
been laid down by the Hon’ble Apex Court in
case of Indra Sawhney Vrs. Union of India,
(1992) Supp.(3) SCC 217, R.K. Sabharwal
Vrs. State of Punjab, (1995) 2 SCC 745 and
Constitution Bench of Hon ble Supreme Court
‟
in V.V. Giri Vrs. D. Sosi Dora, AIR 1959 SC
1318.
”
vi. Such evasive reply without presenting before the
Court the material particulars with respect to
consideration of the opposite party Nos.4 and 5
pitted against the petitioner so as to discern
respective merit cannot be said to have passed
the test of judicial review. It is obvious that the
opposite party Nos.1 and 2 having not prepared
the select list, whether there was compliance of
Clause-11 of the Advertisement dated 11.12.2014
could be answered by none other than the
opposite party No.3-OSSC which has chosen not
to file any counter-affidavit to the notice issued
by this Court in the writ petition.
11. In the wake of the above discussions, reasons
ascribed, principles as expounded by the Hon‟ble
Supreme Court and taking note of distinguishing
W.P.(C) No.17057 of 2022 Page 97 of 98
factor in the decision of the Hon‟ble Calcutta High
Court vis-(cid:224)-vis the identical factual position obtained
other
in the decision of this Hon‟ble Court, there is no
alternative than to quash the Order dated 22.05.2022
of the Principal Secretary to Transport Department
issued vide Order No.4341 TRN-FE-CASE-0003-
—
2021/T., dated 23.05.2022 (Annexure-14).
11.1. Finding that the selection process conducted by the
OSSC cannot be said to be fair and reasonable, a
direction is, therefore, issued to recast the select list
examining the case of the petitioner in the light of the
above observation.
11.2. However, in such selection process, if the petitioner is
found eligible, while granting him the required
consequential benefit, the appointment of candidates
already selected will not be disturbed.
12. With the aforesaid observation and direction, the writ
petition stands disposed of, but in the circumstances
there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not
Verified
Digitally Signed
Signed by: LAXMIKANT
MOHAPATRA High Court of Orissa, Cuttack
Designation: Senior Stenographer
The 24th December, 2024//Aswini/MRS/Laxmikant
Reason: Authentication
Location: High Court of Orissa,
Cuttack
W.P.(C) No.17057 of 2022 Page 98 of 98
Date: 24-Dec-2024 13:58:42