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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO   . 5185 OF 2019 (Arising out of S.L.P. (Civil) No.3938 of 2018

NIRAVKUMAR DILIPBHAI MAKWANA      … APPELLANT  

VERSUS

GUJARAT PUBLIC SERVICE  COMMISSION & ORS.       … RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1. Leave granted.

2. The question for consideration in this appeal is whether a

candidate who has availed of an age relaxation in a selection

process as a result of belonging to a reserved category, can

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thereafter seek to be accommodated in/or  migrated to the

general category seat?

3. Brief facts of the case which are necessary for deciding

this appeal are:­

4.   Gujarat Public Service Commission (for short 'GPSC') had

issued an advertisement dated 01.03.2010 and corrigendum

thereafter for 47 posts of Assistant Conservator of Forests (for

short  'ACF') (Class­II) and 120 posts of Range Forest Officer

(for short 'RFO') (Class­II).  As per the said advertisement and

corrigendum, total 84 posts were to be filled in from

unreserved (general category) candidates. Out of the said 84

posts, 26 posts were reserved for women candidates, 48 posts

were to be filled in from socially and economically backward

classes (for short 'SEBC') category candidates. Out of 48 posts

for SEBC category candidates, 18 posts were reserved for

women candidates, 9 posts were to be filled in from Scheduled

Caste (for short 'SC') category candidates, out of which 2 posts

were reserved for women candidates. Similarly, 26 posts were

to be filled  in from Scheduled Tribe (for short  'ST')  category

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candidates, out  of  which  8  posts  were reserved for  women

candidates. It  was also stipulated  in the advertisement that

25% of the vacancies shall, as far as practicable, be filled up

by appointing candidates who possess BSc degree with

Forestry as the principal subject.  GPSC had stipulated in the

advertisement that the candidates should submit their on­line

applications from 01.03.2010 to 06.04.2010.   The details

about the educational qualifications, age, mode of examination

as  well as the steps to submit the application have been

narrated in the advertisement.

5. GPSC conducted preliminary test on 30.05.2010 and

main written examination was held from 27.05.2013 to

02.06.2013. The result of the main written examination was

declared on 21.05.2014. 505 candidates who cleared the main

written examination were called for physical  measurement

test. Personal interviews were conducted from 16.06.2014 to

31.07.2014.

6. The appellant submitted an application in the category of

SEBC. He successfully passed the examination conducted by

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GPSC.   In the list of selected candidates published on

25.09.2014, he was shown at serial no.138.

7. It  is the case of the appellant that while preparing the

merit list,  GPSC has  ignored the  judgment of this  Court  in

Jitendra Kumar Singh and Anr.  v.  State of Uttar Pradesh

and Ors.,  2010 (3) SCC 119.   Therefore, the appellant  filed

Special Civil Application No. 1100 of 1015 before the learned

Single Judge of the High Court of Gujarat challenging

correctness of the aforesaid select list.  

8. The learned Single Judge by his order dated 11.06.2015

allowed the application in the following terms:

"The action of considering the meritorious reserved category candidates (who secured their position in general/open category on account of their performance) in their respective reserved category only because they availed benefit of "concession" which cannot be considered  as "relaxation in  merits" also set aside since  it is found to be contrary  to  the decision of Hon'ble Apex Court in the case of Jitendra Kumar Singh (supra)."

9. Being  aggrieved  and  dissatisfied  with the order  of the

learned Single Judge, GPSC filed Letters Patent Appeal praying

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for setting  aside  of the  order  passed  by the learned  Single

Judge. The Division Bench of the High Court by order dated

15.03.2017 has allowed the appeal and set aside the order of

the learned Single Judge as under:

"Keeping in view the decisions rendered by the Hon'ble Supreme Court as well as this Court discussed hereinabove and in view of the discussion made by us in the aforesaid paragraphs, we are of the opinion that the State of  Gujarat has framed the reservation policy by Government Resolution dated 11.2.1986 and circulars dated 29.1.2000 and 23.7.2004 as well as in view of the statutory provisions i.e. Recruitment Rules of 1967, Rules of 2007, 2008 and 2009, we hold that all those candidates belonging to a reserved category, if they avail the benefit of age relaxation, the same is to be considered as relaxation in the standard and therefore such candidates who got the benefit of age relaxation are not entitled to be considered in general category and their cases are required to  be considered for reserved  category cases only.   Thus, the decision rendered by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) would not be applicable to the facts of the present case and the relaxation of  age  in view of the policy of the State Government can be said to be relaxation in standard and the same cannot be considered to  be  concession.  We answer the question posed for consideration accordingly."

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10. In this appeal, the appellant has challenged the legality

and correctness of the aforesaid order of the Division Bench of

the High Court.

11. We have heard Mr. V.K. Garg, learned senior counsel for

the appellant and Mr. Preetesh Kapur, learned senior counsel

for the respondents.

12.  Mr. Garg submits that the relaxation/concession in age

granted to the candidates at the initial stage only to enable a

candidate belonging to the reserved category without granting

him/her any preferential advantage in the matter of selection

cannot be treated as an incident of reservation under Article

16(4) of the Constitution of India. The Circulars dated

29.01.2000 and 23.07.2004 issued by the Government of

Gujarat clearly show a concession in age in the  matter of

selection to a post which cannot be treated as an incident of

reservation.   Therefore, relaxation in age at the initial

qualifying stage would not fall foul of these circulars.  Rule 4

of the ACF/RFO Competitive Examination Rules,  2008 read

with the schedule, clearly stipulates that preliminary test  is

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merely to declare a candidate qualified  for appearing  in the

written examination.  Examination and interview performance

alone would be the criteria for his/her selection for the

appointment to the post. Therefore, relaxation at the stage of

preliminary test would not amount to grant of benefit of

reservation for selection. It is argued that Section 8 of the U.P.

Public Services (Reservation for Scheduled Castes and

Scheduled Tribes) Act, 1994 is identically worded as circulars

dated  29.01.2000 and  23.07.2004 in the  State of  Gujarat.

Therefore, the ratio in Jitendra Kumar Singh (supra) shall be

squarely applicable to the facts of the present case too.   He

has also relied on the judgments of this Court in Ajithkumar

P. and Ors. v. Remin K.R. and Ors., 2015 (16) SCC 778 and

Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and Ors.,

2017 (1) SCC 350, in support of his submission.

13. On the other hand, Mr. Preetesh Kapur, learned senior

counsel submits that a candidate who has availed of an age

relaxation in the selection process as a result of belonging to a

reserved category cannot, thereafter, seek to be accommodated

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in general category seats.   In this connection he has drawn

our attention to the Circulars dated 29.01.2000 and

23.07.2004.   It is further submitted that judgment of this

Court in Jitendra Kumar Singh (supra) has no application to

the facts of this case.   The decision  was rendered in the

context of policy adopted by the State of U.P. In support of his

submissions, he has relied on the judgments of this Court in

Deepa E.V.  v.  Union of India and Ors., 2017 (12) SCC 680,

and  Gaurav Pradhan and Ors. etc. etc.  v.  State of

Rajasthan  and  Ors. etc. etc.,  2018 (11) SCC  352.   It is

argued that the relaxation in age granted at the initial stage in

the instant case, is necessarily an incident of reservation

under Article 16(4) of the Constitution of India.

14. We have carefully considered the submissions of the

learned senior counsel  made at the Bar and perused the

materials placed on record. For deciding the issue involved in

this appeal, certain important aspects are required to be

considered.

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15. The State Government, in exercise of its powers conferred

under Article 309 of the Constitution of India made Rules of

1967 vide notification dated 10.10.1967.  As per sub­rule (2) of

Rule  8, the  appointing  authority  has  been  given  powers to

relax age limit in favour of the candidates belonging to SC/ST

and SEBC and in favour of women candidates to the extent

indicated therein.   The Ministry of Personnel, Public

Grievances and Pensions vide Office Memorandum dated

22.05.1989 formulated a policy in tune with Article 16(4) of

the Constitution of India, which enables the State Government

to provide for reservation for the category of persons belonging

to backward classes.  Thereafter, the Ministry of  Personnel,

Public Grievances and Pensions vide Office Memorandum

dated 01.07.1998 clarified the earlier O.M dated 22.05.1989.

16. In  the  meantime, the State  Government in its  General

Administration Department vide Government Resolution dated

11.12.1986 formulated a policy to the effect that the members

belonging to the SC and ST categories who are selected for

appointment by direct selection to any service or post included

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in the State  Services or  in the Subordinate Services on the

basis of their merits, shall be considered for appointment on

unreserved posts, which are filled in on merit along with other

general category members.   As per the said Government

Resolution dated 11.12.1986, such appointments on merit of

the members belonging to such castes and tribes shall in no

way affect claims of the members of such castes and tribes for

appointment in the services or on the post reserved for them

under the Government orders issued from time to time. The

State Government vide Circular No.PVS­1099­MVN­13­G­4

dated 29.01.2000 clarified that a reserved category candidate,

if has not availed of any relaxation viz. age limit, experience,

qualification, number of chances to appear in the examination,

the said candidate will be adjusted in the open category and in

case the candidate has availed any of the aforesaid relaxation,

he/she will  have  to be adjusted against the reserved seats.

This circular reads as under:   

"….After careful  and mature consideration  in this regard, it is clarified that only those Scheduled Castes, Scheduled Tribes and Socially  and Educationally Backward Classes

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candidates who are selected on the same standards as applied to the general  category candidates, shall be counted/adjusted against unreserved posts and not against the reserved posts.   When relaxed standard have been applied in selection of candidates belonging to Scheduled Castes, Scheduled Tribes and Socially  and educationally  Backward  Classes in terms of the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category, etc., then the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes candidates selected under such arrangement shall be counted against the reserved posts. Such candidates would be deemed as unavailable for consideration against unreserved posts."

    17. The State Government came out with a further

clarification vide Circular No.PVS­102003­900­G­4 dated

23.07.2004.  In this circular, it was clarified as under:

"….After careful  consideration of  Government in this regard, it is clarified that  candidates belonging to Scheduled Caste/ Scheduled Tribe/ Socially and Educationally backward classes, who got selected on  merit through competitive examination without availing any relaxation in prescribed standards for eligibility shall not be adjusted against the reserved posts but candidate belonging to the Scheduled Case/ Scheduled Tribe/ Socially and Educationally  backward classes who got selected by availing relaxation in qualifying

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marks in competitive written examination and personal interview shall be counted against the reserved posts.   However, reserved class candidates who have been granted exemption from paying examination fee shall not be barred from competing for an unreserved vacant post."

18. Thus, the  appointments in the  category of  SC/ST and

other backward classes to the post of class I and class III in

the State Services are being governed by the aforesaid policies

and the  State  Government  and/or  any  Authorities effecting

direct appointments are required to give effect to the aforesaid

policy decision at the time of recruitment process viz.

preparing the select list etc.

19. It is evident from the above two circulars that a candidate

who has availed of age relaxation in the selection process as a

result of belonging to a reserved category cannot, thereafter,

seek to be accommodated in or migrated to the general

category seats.

20. The State of Gujarat framed the rules for regulating the

recruitment to the post of ACF in  Gujarat Forest Services

Class II recruitment Rules 2007.

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"(i) The Assistant  Conservator  of  Forests in the Gujarat Forest Service, Class­II Recruitment Rules, 2007

(ii) The Assistant  Conservator  of  Forests in the Gujarat Forest Service Class­II Recruitment (Amendment) Rules, 2008.

(iii) The Assistant  Conservator  of  Forests in the Gujarat Forest Service, Class­II Recruitment (Amendment) Rules, 2009."

21. Similarly, the  State  of  Gujarat  has  made  the following

rules for regulating recruitment to the post of RFO Class II:

"(i) The Range Forest Officer, Class­II Recruitment Rules, 2008.

(ii) The Range Forest Officer, Class­II Recruitment (Amendment) Rules, 2008.

(iii) The Range Forest Officer, Class­II Recruitment (Amendment) Rules, 2009."

22. The State Government vide Notification dated 18.09.2008

framed the Examination Rules of 2008.

23. In the advertisement published by the  GPSC inviting

applications from the eligible candidates for the post of ACF

(Class II) and RFO (Class II) dated 01.03.2010, upper age limit

relaxation was granted to the candidates belonging to SC/ST

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and  SEBC category.   It  was also specifically stated in the

advertisement that if any candidate belonging to reserved

category  who  applies in the  open  category, such  candidate

would not get the benefit of age relaxation.   Such age

relaxation was granted  in  pursuance  to  Rule  8  of  Rules  of

1967.

"8. Condition as to prescribed qualifications: 1) xxxx 2) Where the prescribed qualification include a qualification as to age limit the appointing authority may relax the age limit in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class and in favour of candidate who are women to the following extent, that is to say: (a) in the case of a service or post in a subordinate service or of a  State  Service in respect of which the prescribed age limit does not exceed  forty  years, the age  limit  may be relaxed to the extent of five years. (b)  in the case of service or post in the State Service in respect of which prescribed age limit exceeds forty years, the age limit may be relaxed to the extent of maximum five years, so as to provide that upper age limit for entry in the service does not exceed forty five years."

24. Article 16(4) of the Constitution is an enabling provision

empowering the State to make any provision or reservation of

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appointments or posts in favour of any  backward class of

citizens which in the opinion of  the State  is not adequately

represented in the service  under the  State.   It is  purely  a

matter of discretion of the State Government to  formulate a

policy for concession, exemption, preference or relaxation

either conditionally or unconditionally in favour of the

backward classes of citizens.   The reservation being the

enabling provision, the manner and the extent to which

reservation is provided has to be spelled out from the orders

issued by the Government from time to time.

25. In the instant case, State Government has framed policy

for the grant of reservation in favour of SC/ST and OBC by the

Circulars dated 21.01.2000 and 23.07.2004. The State

Government has clarified that  when a relaxed standard is

applied in selecting a candidate for SC/ST, SEBC category in

the age limit, experience, qualification, permitting number of

chances in the  written  examination etc., then candidate of

such category selected in the said manner, shall have to be

considered only against his/her reserved post. Such a

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candidate would be deemed as unavailable for consideration

against unreserved post.

26. Now,  let us consider the judgment  in  Jitendra Kumar

Singh  (supra). In  this  case, this  Court  was considering  the

interpretation of  Sub­section  (6)  of  Section 3  of  U.P.  Public

Services (Reservation for Scheduled Castes, Scheduled Tribes

and Other Backward Classes) Act, 1994 (for short "1994 Act")

and the Government Instructions dated 25.03.1994. Sub­

section (6) of Section 3 of this Act provided for reservation in

favour of Scheduled Castes, Scheduled Tribes and other

Backward Classes which is as under:

"(6) If a person belonging to any categories mentioned in sub­section (1) gets selected on the basis of merit in an open competition with general  candidates,  he  shall  not  be  adjusted against the vacancies reserved for such category under sub­section (1)."

27. The State of U.P. issued Instructions dated 25.03.1994 on the

subject of reservation for  Scheduled Castes, Scheduled Tribes and

Other Backward Groups in the Uttar Pradesh Public Services.  Last

line of these instructions is as under:­

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"It shall be immaterial that he has availed any facility or relaxation (like relaxation in age­ limit) available to reserved category."

28. On consideration of  sub­section  (3)  of  Section 6 of  the

1994 Act and the Instructions dated 25.03.1994, this Court

held that grant of age relaxation to a reserved category

candidate does not militate against him as general  category

candidate if  he has obtained more marks than any general

category candidates. This judgment was based on the

statutory interpretation of 1994 Act and the Instructions dated

25.03.1994 which is entirely different from the statutory

scheme under consideration in the instant appeal.  Hence, the

principle laid down in Jitendra Kumar Singh  (supra) has no

application to the facts of the present case.     

29. In Deepa (supra), the appellant had applied for the post

of Laboratory Assistant Grade II in Export Inspection Council

of India functioning under the  Ministry of Commerce and

Industry, Government of India under OBC category by availing

age relaxation. The Department of Personnel and Training had

issued proceedings  O.M.  dated 22.05.1989  laying  down the

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stipulation to be followed by various Ministries/Departments

for recruitment to various posts under the Central

Government and the reservation for Scheduled Castes,

Scheduled Tribes and  Other  Backward  Classes candidates.

Paragraph 3 of the said O.M. is as under:

"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies."

30. The judgment in  Jitendra  Kumar  Singh  (supra),  was

pressed into service in support of the contention that when a

relaxed standard is applied in selecting Scheduled  Castes,

Scheduled Tribes and Other Backward Classes candidates, the

same cannot be treated as a bar on such candidates for being

considered for general category vacancies.  This Court did not

agree  with the said proposition. It  was  held that  Jitendra

Kumar  Singh  (supra) was based on the statutory

interpretation of the U.P. Act, 1994, and the GO dated

25.03.1994 which provides  for  an entirely  different scheme.

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Therefore, the principles laid down in Jitendra Kumar Singh

(supra) cannot be applied to the said case.

31. Similar question arose  in  Gaurav Pradhan  (supra).   In

this case the Government had issued Circular dated

24.06.2008 which is as under:

“Circular dated 24­6­2008

6.2. In the State, members of the SC/ST/OBC can compete against non­reserved vacancies and be counted against them, in case they have  not taken  any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.”

32. Taking into consideration the above circular, this Court

held that the ratio of the judgment in Jitendra Kumar Singh

(supra) has to be read in the context of statutory provisions

and the GO dated 25.03.1994 and the said observation cannot

be applied in a case where the Government Orders are to the

converse effect. It was held as under:

"32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory  scheme and  the  Circular dated 25­3­1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government

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as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24­6­2008."

33. The  judgments  in  Deepa  (supra)  and  Gaurav Pradhan

(supra) fully support the case of the respondents.

34. The judgment in  Ajithkumar  (supra)  relied  on  by the

learned senior counsel for the appellant has no application to

the facts of the instant appeal.   In that case, this Court was

not examining the effect of a statutory provision/circular

granting age relaxation to the candidates belonging to the

reserved category.

35. Similarly, in Vikas Sankhala (supra), relaxation of marks

of TET was allowed to different categories (under the orders of

the State Government dated 23.03.2011). After such

relaxation, the reserved category candidates were selected as

having obtained more marks than the last general candidate

and were included as general category candidates. The general

category candidates contended that since relaxation was

obtained prior to the circular dated 11.05.2011, reserved

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category candidates were not eligible to be included as general

category candidates.   This Court, after noticing the circulars

issued  from time  to time,  held that relaxation given  in the

marks in the TET examination was not part of the recruitment

process. This judgment also does not assist the appellant in

any manner.

36. There is also no merit in the submission of the learned

counsel for the appellant that relaxation in age at the initial

qualifying stage  would not fall foul of the circulars dated

29.01.2000 and 23.07.2004. The distinction sought to be

drawn between the preliminary and final examination is totally

misconceived. It is evident from the advertisement that a

person who avails of an age relaxation at the initial stage will

necessarily avail of the same relaxation even at the final stage.

We are of the view that the age relaxation granted to the

candidates belonging to SC/ST and SEBC category in the

instant case is an incident of reservation under Article 16(4) of

the Constitution of India.  

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37. There is no merit in this appeal.   It is accordingly

dismissed.  However, the parties are directed to bear their own

costs.

…………………………………………J. (S. ABDUL NAZEER)

                                     …………………………………………J. (INDIRA BANERJEE)

New Delhi; July 4, 2019.