Holding

The circular dated 11 May 2011 cannot be applied to the recruitment that began before it; reserved‑category candidates who took age‑relaxation are not eligible for migration to unreserved vacancies, and the State must appoint the displaced general‑category candidates while allowing the migrated reserved candidates to continue in service.

Summary

The Rajasthan Police Subordinate Service Rules, 1989 provided for reservation of SC/ST/BC posts. Advertisements for Constable and Sub‑Inspector were issued in October 2010. While the selection process was underway, the State issued a circular on 11 May 2011 allowing any reserved‑category candidate, even if he/she had taken age‑relaxation, to be counted against unreserved vacancies. An earlier circular dated 24 June 2008 permitted migration only for those who had not availed any concession. General‑category candidates challenged the 2011 circular. The Supreme Court held that the recruitment had begun before the 2011 circular, so the earlier 2008 circular governed; therefore candidates who took age‑relaxation could not be migrated to unreserved posts. The State had illegally migrated such candidates, displacing merit‑based general‑category candidates. The Court allowed the appeals, ordered that the displaced general‑category candidates be appointed, permitted the migrated reserved‑category candidates to retain their posts (having served over five years), and directed the State to adjust equity, including creation of super‑numerary posts if necessary.

Issues considered

Whether a reserved‑category candidate who has availed age‑relaxation can be counted against unreserved vacancies (migration).
Whether the circular dated 11 May 2011 can be applied to a recruitment process that commenced before its issuance.
Whether the State’s migration of such candidates was illegal and what remedial orders are appropriate.

Legislation cited

Constitution of Indias. Article 16(4)
Rajasthan Police Subordinate Service Rules, 1989s. Rule 7(1)

Subjects

reservationmigration of candidatesage relaxationservice recruitmentRajasthan Police Subordinate Service Rulesgeneral categorySC/ST/BCcircularsequityappointmentjudicial review

Judgment

• [2017) 8 S.C.R. 951

GAURAV PRADHAN & ORS. A
v.
STATE OF RAJASTHAN & ORS.
(Civil Appeal No.8351 of2017)
AUGUST 18, 2017 B

[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service law - Recruitment - Migration of reserved category
candidates against general category vacancies - The Rajasthan
Police Subordinate Service Rules, 1989 - r.7 -Advertisements in C
2010 inviting applications for selection on posts of Constables and
Sub-Inspector of Police - During process of selection, the State
Government issued a circular dated 11.05.2011 providing that
candidates of SC/ST/BC irrespective of whether they have availed
of any concession including relaxation in age, shall be migrated
against general category vacancies if they secured more marks than D
the last candidate ofgeneral category - Writ petitions filed by general
category candidates challenging the said circular - Held: Circular
·dated 11.05.2011 was issued by the State during the process of
recruitment - However, the recruitment process in the present case
had begun prior to the issuance of said circular, when circular dated E
24.06.2008 ,was in force which provided that reserved category
candidates who have taken concession like age relaxation were
not entitled to be migrated into the general category - Hence, the
subsequent circular dated 11.05.2011 cannot be applied in the
present recruitment - Thus, candidates belonging to SC/ST/BC who
had taken relaxation of age were not entitled to be migrated to the F
unreserved vacancies - However, the State·of Rajasthan has
migrated such candidates against the unreserved vacancies which
resulted in displacement of a large number of candidates who were
entitled to be selected against the unreserved category vacancies -
Further, such reserved category candidates have been working for G
more than last jive years - In view of the fact, that such candidates
were not at fault in any manner, they are allow.ed to continue in
.respective posts - While, the unreserved candidates who could not
be appointed due to the above illegal migration are also entitled
for appointment as per their merit - Therefore, directions issued for
adjusting the equity between the parties - Equity. H
951
952 SUPREME COURT REPORTS [2017) 8 S.C.R.

A Allowing the appeals, the Court
HELD: 1.1 The State had come up with circular dated
11.05.2011 which was issued during process of recruitment. It
clearly provided that candidates belonging to reserved category
irrespective of having availed any of the special concessions
B secure bench mark prescribed for general/open category
candidates if selected, such a reserved category candidate shall
be counted against unreserved/open category candidates. [Para
30) [968-H; 969-A-BJ
1.2 Further, the State of Rajasthan has issued circular dated
c 26.07.2017 which was the reiteration of earlier position as was
provided by circular dated 24.06.2008 which provided that
candidates belonging to reserved category who have obtained
concession of age are not eligible to be migrated to the
unreserved vacancies • Thus, the position is now well accepted
even by State of Rajasthan that those candidates belonging to
D SC/ST/BC who have obtained concession of age are not eligible
to be migrated to the unreserved vacancies. Circular dated
24.06.2008 being very much in existence holds the field and the
State of Rajasthan was obliged to not migrate those SC/ST/BC
category candidates who are in unreserved category, who have
E. taken concession of age. [Para 39) [976-D[
Deepa E. V. vs. Union of India. 2017 (5) SCALE 424 -
held applicable.
1.3 Rule 7(1) of The Rajasthan Police Subordinate Service
Rules, 1989 expressly provides that "reservation of vacancies
F for the Scheduled Castes and the Scheduled Tribes shall be in
accordance with the orders of the Government for such reservation
in (orce at the time of recruitment i.e. bv direct recruitment and bv
promotion". The circular of the Government which was in force at
the time of recruitment shall be treated to be in force for the
G purpose of reservation. In the present case, when the recruitment
was commenced by the advertisement dated 7.10.2010 and
25.10.2010 at that time only circular dated 24.06.2008 was in force,
hence, subsequent circular dated 11.05.2011 cannot be applied
in the present recruitment. (Para 46) (979-F-GJ

H
.!,

GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 953

1.4 The candidates belonging to SC/ST/BC who had taken A
relaxation of age were not entitled to be migrated to the
unreserved vacancies. However, the State of Rajasthan had
migrated such candidates who have taken concession of age
against the unreserved vacancies which resulted displacement
of a large number of candidates who were entitled. to be selected B
against the unreserved category vacancies. The candidates
·belonging to 1,1nreserved 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. However,
notice is also taken of the fact that the reserved category C
candidates who had taken benefit of age relaxation and were
migrated on the unreserved category candidates have been
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, the SC/ST/BC D
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. [Para 48)
[980-D-G) E
1.5 For adjusting the equity between the parties, the
following directions are issued:
(1) The writ petitioners/appellants who as per their merit
were entitled to be appointed against unreserved vacancies which
vacancies were filled up by migration of SC/ST/BC candidates who F
had taken relaxation of age should be given appointment on the
posts. The State is directed to work out and issue appropriate
orders for appointment of such candidates who were as per their
merit belonging to general category candidates entitled for
appointment which exercise shall be completed within three G
months from the date copy of this order is produced.
(2) The State shall make appointments against the existing
vacancies, if available, and in the event there are no vacancies
available for the above candidates, the supernumerary posts may
be created for adjustment of the appellants which supernumerary H
954 SUPREME COURT REPORTS [2017) 8 S.C.R.

A posts may be terminated as and when vacancies come into
existence. [Para 49) [981-A-D)
Jitendra Kumar Singh v. State of U.P. 2010 (3) SCC
119 : (2010) 1 SCR 325 - distinguished.
Vikas Sankhala and others v. Vikas Kumar Agarwal and
B others (2017) 1SCC350: (2016) 7 SCR 639; Chandra
Bhan Yadav v. State of Rajasthan (2009) 2 WLC (Raj.)
454 - held inapplicable.
K. Manjusree v. State ofAndhra Pradesh, 2008 (3) SCC
512 : [2008) 2 SCR 1025 ; Tej Prakash Pathak and
c others vs. Rajasthan High Court and others 2013 (4)
SCC 540 ; Indra Sawhney and others vs. Union of
India and others 1997 Suppl. SCC 217 : [19991 5
Suppl. SCR 229 ; Post Graduate Institute of Medical
Education & Research, Chandigarh and others v. K.L.
D Narasimhan and another 1997 (6) SCC 283; Mangala
Ram Bishnoi & Others v. State of UP (2010) 3 SCC 119
- referred to.
Case Law Reference
(2008( 2 SCR 1025 referred to Para 7
E
(2013) 4 sec 540 referred to Para7
[1999( 5 Suppl. SCR 229 referred to Para 19
(2009) 2 WLC (Raj.) 454 held inapplicable Para 19
(2010) 3 sec 119 referred to Para 20
F
(1997) 6 sec 283 referred to Para 21
2017 (5) SCALE 424 held applicable Para 36
[2010) 1 SCR 325 distinguished Para 37
[2016) 7 SCR 639 held inapplicable Para 42
G

CIVIL APPELLATE JURISDICTION : Civil Appeal No.8351
of2017.

H
. --··- - --·· -----·~----~- -

GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 955 .

From the final Judgment and Order dated 16.01.2014 passed by A
the High Court of Judicature for Rajasthan at Jaipur Bench in D.B. Civil
SP.ecial
.
Appeal (Writ) No.769/2012
~

WITH
Civil Appeal No.7656 of2017
B
and
Civil Appeal No.5305 of2015.
Sushi! Kumar Jain, Sr. Adv., Rishabh Sancheti, Ms. Padma Priya,
Dhruv Sharma, Ms. Parijata Bhardwaj, Jaiwant Patankar, T. Mahipal,
Puneet Jain, Ms. Christi Jain, Abhinav Gupta, Ms. Priyal Jain, Ms. C
.Pratibha Jain, Advs. for the Appellants.
K.L. Janjani, Pankaj Kumar Singh, Ms. Ruchi Kohli, Umang
Shankar, Ajay Choudhary, Jasmeet Singh, Ruhsheet J. Saluja, Naman
. Joshi, Nitesh Shrivastava, Sahil P., Pranaya Kumar Mohapatra and Milind
Kumar, Advs.for the Respondents. D
The Judgment of the Court was delivered by
ASH OK BHUSHAN, J. I. In these appeals appellants challenge
the common judgment dated 16.01.2014 of the Rajasthan High Court
deciding a batch of Special Appeals which arose out of judgment of
learned Single Judge dated 27.04.2012 delivered in SB Civil Writ Petition E
No.15152 of 2011 and other connected matters and judgment dated
08.11.2013 in SB Civil Writ Petition No.4811 of2013 and other connected
matters. The judgment dated 27.04.2012 pertains to selection to various
posts of constables whereas judgment dated 08.11.2013 pertains to
selection on the post of Sub-Inspector of P-Olice. The judgment dated F
.08.11.2013 was delivered following the earlier judgment dated 27'11 April,
2012. A large number of Special Appeals were filed against the aforesaid
two judgments which were decided by the Division Bench by a common
judgment dated 16.01.2004 which judgment is subject matter of these
appeals.
G
2. Brief facts of the case which are necessary to be noted for
deciding these appeals are:
The Rajasthan Police Subordinate Service Rules, 1989 has been
framed by the State ofRajasthan for recruitment on various posts in the·
H
.956 SUPREME COURT REPORTS (2017] 8 S.C.R.

A Police Establishment. Part lII of the Rules provides for recruitment and
Rule 7 provides reservation of vacancies for the Scheduled Casts and
the Scheduled Tribes. The State Government had from time to time
issued various orders/circulars providing for reservation as well as
methodology for giving effect to the reservation. Circulars dated
B 17.06.1996, 04.03.2002 and 24.06.2008 were issued by the State
Government providing for reservation.
3. The Rajasthan Public Service Commission issued an
advertisement dated 14.l 0.20 lO inviting applications for selection on
various posts of constables. On 25.10.2010 another advertisement was
issued by the Rajasthan Public Service Commission for selection on the
C post of Sub Inspector of Police. The selection process for the posts of
constables as well as post of Sub Inspector of Police comprised of the
different stages. During process of selection, the State Government
issued a circular dated 11.05.2011 providing that candidates of BC/SBC/
SC/ST irrespective of whether they have availed of any concession
D including relaxation in age .shall be migrated against open category
vacancies if they have secured more marks than the last candidate of
open category. Select list of constables was issued on 01.07.2011 whereas
result of Sub Inspector of Police was issued on 25.02.2013. Various writ
petitions were filed by the general category candidates where they have
questioned the circular dated 11.05.2011 and preparation of select list
E accordingly. The case of the general category candidates was that those
reserved category candidates who have taken concession of relaxation
of age in competition for post of constable/SI of Police cannot be migrated
to general category vacancies. Learned Single Judge decided Special
Writ Petitions vide judgment dated 27.12.2012 taking view that circular
F dated 11.05.2011 is not applicable since the recruitment process had
began prior to circular 11.05.201 l. lt was held that migration ofreserved
category candidates to open/general category can be permitted as per
earlier circular dated 24.06.2008. With regard to circular dated 11.05.2011,
it was held that the said circular needs to be given proper interpretation.
Learned Single Judge held that only those who have taken benefit of
G concession of fee and not the relaxation in age during the process of
selection would be allowed to migrate to open/general category if obtained
equal or more marks to the last candidate in open/general category. As
noted above, other group of writ petitions was decided by the Single
Judge vide judgment dated 08.11.2013 following the judgment dated
H 27.04.2012.
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 957
[ASHOK BHUSHAN, J.]

4. The Division Bench disposed of all the Special Appeals by A
modifying the judgment oflearned Single Judge dated 27.04.2012 and
08.11.2013 to the extent that the relaxation in age having been availed
by candidates of reserved category who find place in the select list on
dint of merit of general/open category vacancies, deserve to be migrated
against general/open category vacancies. However, candidates availing B
special relaxation/concessions while participating in competitive test/
process of selection, if find place in select/merit list of general/open
category vacancies, they are not eligible to be migrated against open/
general category vacancies. Aggrieved by the aforesaid judgment all
these appeals have been filed.
5. We have heard learned counsel for the appellants and learned C
counsel appearing for the State ofRajasthan as well as learned counsel
appearing for private respondents.
6. Shri Sushi! Kumar Jain, learned senior counsel for the appellants
in support of the appeals contends that the reserved category candidates
who had participated in the selection after obtaining the benefit of D
relaxation in age cannot be allowed to be treated in the open/general
category and as per the Government circular dated 24.06.2008 such
candidates have to be treated in the reserved category candidates. He
submits that circular dated 11.05.2011 reversing the earlier provision for
migration in the general/open category was not applicable in the present E
case since the advertisements were issued much before the aforesaid
circular and the recruitment process had begun. It is submitted that the
judgment relied on by the Division Bench in coming to the conclusion
that relaxation in age does not prohibit the reserved category candidates
from migrating the open/general category quota are not applicable in the
facts of the present case. Shri Jain submits that the issue raised in these F
appeals is fully covered by the judgment of this Court dated 61h April,
2017 in C.A.No.3609 of 2017, Deepa E.V. vs. Union of India and
·ors. It is submitted that in view of the judgment of this Court in Deepa
E. V., the appeals deserve to be allowed setting aside the judgment of the
Division Bench and restoring that oflearned Single Judge. G
7. Shri Ajay Choudhary, learned counsel for the State ofRajasthan
has supported the judgment of the Division Bench. He contends that
relaxation of age does not debar the reserved category candidates in
migrating to the general/open category quota, in the event, they have
H
958 SUPREME COURT REPORTS [2017] 8 S.C.R.

· A secured more marks to last general category candidate. It is submitted
that circular dated 11.05.2011 is fully applicable in this recruitment. He
further submits that judgment of this Court in K. Manjusree vs. State of
Andhra Pradesh, 2008(3) SCC 512, has been referred to a larger
bench of this Court in Tej Prakash Pathak and others vs. Rajasthan
B High Court and others, 2013(4) SCC 540. Hence, the jugement of
this Court in K. Manjusree need not be relied on.
8. Shri Choudhary further contends that relaxation in age being
permissible in accordance with the Rajasthan Police Subordinate Service
Rules, 1989 to the reserved category candidates, they are entitled to be
counted in the general/open category, in the event, they have secured
C more marks to the last general category candidate. It is submitted that
appointment letters have been issued to the reserved category candidates
in accordance with the merit list as per circular dated 11.05.2011.
9. Learned counsel appearing for respondent Nos.6 to 9 supported
. D the judgment of the Division Bench. He further submitted that all the
private respondents have been appointed on the respective posts and
they are working for the last about four years. He further submits that
even circular dated 24.06.2008 recognises that candidates belonging to
reserved category shall be selected if they have obtained more than
general category even if it leads to selection of more candidates than
E that provided by virtue of reservation. He has relied on latter part of
paragraph 6.2 of circular dated 24.06.2008.
10. Learned counsel for the appellants has also brought on record
circular dated 26.07 .2017 issued by the Government ofRajasthan in the
light of the judgment of this Court in Deepa E. V.(supra). The State
F Government by circular dated 26.07.2017 has reiterated that if a candidate
1
belonging to SC/ST/BC has not availed of any of the special concessions '
such as in age-limit, marks, physical fitness etc. in the recruitment process, \
which are available to the candidates belonging to these categories, except
1
the concession of fees, and secure mure marks than the marks obtained 1

by the last unreserved category candidate who is selected, such a
G candidate belong to the SC/ST/BC shall be counted against the unreserved
category vacancies and not the vacancies reserved for the SC/ST/BC.
11. Learned counsel for the appellants has further submitted that
there are large number of vacancies still lying vacant on which the
appellants can be appointed. They submit that the appellants were denied
H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 959
[ASHOK BHUSHAN, J.]

the appointment illegally whereas they were fully entitled for appointment. A
Hence, this Court may direct the State to appoint the appellants on existing
vacancies. Learned counsel for the State has, however, refuted the
submission of the appellants regarding existence of vacancies.
12. We have considered the submissions of the parties and perused
the records. From the submissions of the learned counsel for the parties B
and materials on record the following issues arise for consideration in
these appeals:
(1) Whether the reserved category candidates who had taken
benefit of age relaxation in the selection in question and have
obtained marks equal or more to last general category candidate c
would be treated in the general/open category candidates or ought
to have been confined in the reserved category candidates.
(2) Whether the circular dated 11.05.2011 issued by the State
Government changing the criteria for migrating reserved category
candidates into general category candidates can be applied in D
respect to the selection which had already began on issuance of
advertisements dated 14.10.2010 and 25.10.2010.
13. The statutory Rules have been framed, namely, the Rajasthan
Police Subordinate Service Rules, 1989. The Rules provide for composition
and strength of the service, methods of recruitment, procedure for direct E
recruitment and other relevant matters. Rule 7 provides for reservation
of vacancies for the Scheduled Castes and the Scheduled Tribes. Rule 7
which is relevant for this case is as follows:
"7. Reservation of vacancies for the Scheduled Cases and
the Scheduled Tribes- (I) Reservation of vacancies for the F
Scheduled Castes and the Scheduled Tribes shall be in
accordance with the orders of the Government for such
reservation in force at the time of recruitment i.e. by direct
recruitment and by promotion.

G

14. As per Rule 7( 1) orders were issued by the State ofRajasthan
from time to time providing for reservations and matters connecting
therewith. In the present case we are only concerned with the question
H
960 SUPREME COURT REPORTS [2017] 8 S.C.R.

A of migration ofreserved category candidate into general/open category
candidate. Hence, it is sufficient to note the relevant orders issued by
the Government in the above context. The 1989 Rules do not contain
any provision regarding migration of reserved category candidates into
general/open category candidates, but the Government orders which
B were referable to Rule 7( I) do provide the criteria and basis for such
migration. The circular dated 24.06.2008 was the last circular on the
subject prior to initiation ofrecruitment process. Para 6.2 of the circular
dated 24.06.2008 which has also been extracted by the Division Bench
of the High Court is to the following effect:
"Circular dated 24.06.2008
c
6.2 Jn the state, members of the SC/STIOBC 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. "

D 15. lt is also relevant to notice that during the process of selection,
the Government issued circular on 11.05.2011 in supersession of earlier
circular dated 04.03.2002. Before we notice circular dated 11.05.2011,
it is relevant to note circular dated 04.03.2002 which is to the following
effect:

E "Circular dated 04.03.2002
(a) If a candidate belonging to OBC!SCIST has not availed
of any of the special concessions which are available to the
candidates belonging to these categories except the
concession offees, and he secures more marks than the marks
obtained by the last general category candidate who is
F
selected, such a candidate belonging to OBC/SCIST shall be
counted against the general category vacancies and not the
vacancies reserved for the OBCISCIST. as the case may be.
(b) If any SC/ST candidate gets selected against the general
category vacancies on the basis of his merit without availing
G
of any of the special concessions which are available to the
candidates belonging to these categories, except the
concession of fees,such a SC/ST candidate, as the case may
be, for all further service matters including further promotions
and all the benefits which are admissible to the other SC/ST
H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 961
[ASHOK BHUSHAN, J.]

persons under the various .service rules/ Government A
instructions shall be admissible to them. "
16. Now we come to circular dated 11.05.2011 by which the
earlier methodology of treating the reserved category candidates into
general category candidates has been fully changed. Circular dated
11.05.2011 provides: B
"Circular dated 11.05.2011
In super-session of this department circular of even
number dated 04.03.2002 dn the above-mentioned subject,
the matter has been examined in consultation with Law
Department, the joltowing clarifications are here by issued C
for the guidance of all Appointing Authorities:-
(a) If a candidate belonging to BC/SBC/SC/ST irrespective
of whether he has availed of or not any of the special
concessions which are available to the candidate belonging
to these categories and he secures more marks than the marks D
obtained by the last unreserved category candidate who is
selected, such a candidate belonging to BC/SBC/SC/ST shall
· be counted against the unreserved category vacancies and
not the vacancies reserved for the BC/SBC/SC/ST. as the case
may be. E

"
17. The Government orders were issued by the State ofRajasthan
as contemplated by Rule 7( 1) of 1989 Rules which were in operation at F
the time of initiation of process ofrecruitment by Government orders
dated 14.10.2010 and 25.10.2010. The Government orders provided that
reserved category candidate who have taken any concession like age
relaxation was not entitled to be migrated into the general/open category
and only those reserved category candidates who have not taken any
concession apart from concession of fee was entitled to be migrated G
into general/open category. The Division Bench of the High Court has
after noticing all the relevant circulars on the subject has itself recorded
·a finding to the above effect. It is relevant to refer to the aforesaid
finding which is to the following effect: ·
H
962 SUPREME COURT REPORTS (2017] 8 S.C.R.

A "Circulars issued by State Government from time to time,
are nothing more than guidelines issued for being followed
by recruiting agencies/competent authority while filling up
the vacancies of direct recruitment/promotion in service of
the Government.
B In later circular of 2008, the State Government further
made it clear that members ofSC/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.)
available to them other than that relating to payment of
examination fee in case of direct recruitment.
c
This consistency was followed by State Government in
its standing order No.512010 dated 07.10.2010 followed for
recruitment to the post of Constable notified vide advertisement
dated 2511112010.

D The State Government through out from June, 1996
consistently in its later circulars issued in March, 2002. June,
2008, October, 2010 (Standing Order No.512010) as per its
policy decision directed that the candidates belonging to SCI
STIOBC can compete against non-reserved vacancies provided
they have not availed special concessions (like age etc.) other
E than examination fees.
However, there was a deviation in its later circular dated
1110512011 issued in the form of clarification laying down
guidelines for the recruiting agency/authorities in supersession
of its earlier circulars/directions and the State Government
F was of the view that candidates belonging to reserved category
(BC/SBC/SC/ST) irrespective of having availed any of the
special concessions (including of age) etc. which are available
to the candidates belonging to the reserved categories, secure
bench mark prescribed for general/open category candidates
G if selected, such a reserved category SC/ST/SBC candidate
shall be counted against unreserved/open category seats. "
18. A perusal ofimpugned judgment of the Rajasthan High Court
indicates that the Division Bench relying on following has formed its
opinion:
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 963
[ASHOK BHUSHAN, J.]

"(a) Earlier judgments of Rajasthan High Court, namely, A
Chandra Bhan Yadav vs. State of Rajasthan, (2009) 2 WLC
(Raj.) 454 and judgment of Single Judge in Mangala Ram
Bishnoi & others vs. State, 2011 (1) WLC 148;
(b) Judgment of this Court in Jitendra Kumar Singh vs.
State of U.P., 2010 (3) SCC 119; and B
(c) Circular dated 11.05.2011 of the State Government."
19. Judgment of learned Single Judge in Chandra Bhan Yadav
(supra) was a judgment where circulars issued by the State Government
which are referable to Rule 7(1) of 1989 Rules relevant in the context
of selection in question, were neither referred to nor considered. The C
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 nine Judge Bench in Indra D
Sawhney and others vs. Union of India and others, 1997 Suppl.
SCC 217. This Court in paragraph 811 laid down the following:
"811. In this connection it is well to remember that the
reservations under Article 16(4) do not operate like a
communal reservation. It may well happen that some members E
belonging to, say, _Scheduled Castes get selected in the open
competition field on the basis qf their own merit; they will not
be counted against the quota reserved for Scheduled Castes;
they will be treated as open competition candidates. "
20. The another judgment oflearned Single Judge relied on in the F
impugned judgment in Mangala Ram Bislmoi (supra) was a judgment
where the learned Single Judge has placed heavy reliance on the judgment
of Jitendra Kumar Singh (supra). The circular of. the State
Government dated 04 .03 .2002 as applicable was considered in paragraph
34. But learned Single Judge, held that in view of the law laid down by
this Court in Jitendra Kumar Singh (supra) circular dated 4.3.2002 G
does not remain operative. We thus need to look into the judgment of
this Court in Jitendra Kumar Singh '.s case (supra). The Division B~:nch
further held that since the judgment of Mangala Ram Bislmoi(.supra)
which was judge made law was holding field, the State Government
H
964 SUPREME COURT REPORTS [2017] 8 S.C.R.

A 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, nine Judge Constitution Bench had laid down
that if the members belonging to the reserved category get selected in
B the open competition field on the basis of their own merit, they will not
be counted against the quota reserved for Scheduled Casts and they
would be treated as open competition candidates. In Post Graduate
J11stitute of Medical Educatio11 & Research, Cha11digarh a11d others
vs. K.L. Narasimha11 a11d a11other, 1997(6) SCC 283, a three Judge
Bench of this Court in paragraph 5 has laid down the following:
c
"5 .... lt 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
D criteria should be treated as reserved candidate. "
22. Article 16 sub-clause (4) of the Constitution of India is an
enabling provision empowering the State for making any provision for
the reservation of appointments or posts in favour of any backward
class of citizens which, in the opinion of the State, is not adequately
E 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 sub-clause (4). lt is well settled by nine Judge Constitution
Bench that reservation in favour of backward classes can be provided
by a State Government by an executive order also.
F 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
G 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

H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 965
[ASHOK BHUSHAN, J.]

16 sub-clause (4) of the Constitution of India. The State is fully A
empowered to lay down the criteria for grant of exemption, concession
and reservation and the manner and methodology to effectuate such
reservation. The migration of reserved candidates into general category
candidates is also part and parcel of larger concept of reservation and
the Government orders issued on 17.06.1996, 04.03.2002 and 24.06.2008 B
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 C
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 D
Singh vs. 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: E

"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 ~ad
taken the benefit of age or fee relaxation, are entitled to be F
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 candidates selection in open competition G
with general category candidate. "
25. This Court had considered the above issue in the context of
U.P. Public Services (Reservation for Scheduled Casts, Scheduled Tribes
and Other Backward Classes) Act, 1994. Section 3 of the Act provided
H
966 SUPREME COURT REPORTS [2017] 8 S.C.R.

A for reservation in favour of ST, SC and other backward classes. Section
3 sub-Section (6) of 1994 Act provided as following :
"Section 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
B 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, -
c (a) in the case of Scheduled Castes twenty-one
per cent;

(b) In the case of Scheduled Tribes two per cent;

D (c) in the case of Other Backward twenty-seven
per cent;
Classes of citizens
Provided that the reservation under clause (c) shall not
apply to the category of Other Backward Classes of citizens
E specified in Schedule II.

F (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(l).
G
26. The State of U.P. issued instructions dated 25.3.1994 which
have been extracted in paragraph 72 of the judgment. Para 72 stated
below:

H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 967
[ASHOK BHUSHAN, J.]

"72. Soon after the enforcement of the 1994 Act the A
Government issued Instructions dated 25-3-1994 on the
subject of reservation for Scheduled Castes, Scheduled Tribes
and other backward groups in the Uttar Pradesh Public
Services. These instructions, inter ali<;i, provide as under:
"4. If any person belonging to reserved categories is B
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 age-limit) available to reserved category. " C
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 D
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- E
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.,,
F
27. The last line of the the Government instructions dated
25.03.1994 as quoted above provided "It shall be immaterial that he
has availed anv (Qcility or relaxation Oike relaxation in age-limit)
·available to reserved category".
28. The provisions of Section 3 sub-Section (6) of 1994 Act read G
with instructions dated 25.3.1994 clearly meant that grant of age relaxation
to 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. This Court in the above case has also
H
968 SUPREME COURT REPORTS (2017] 8 S.C.R.

A made general observation specially 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
B that relaxation in age or the concession in fee would in any
manner be irifringement 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
c 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
D 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
E
in the open competition. "
29. The ratio of the judgment in Jitendra Kumar Singh has to be
read in the context of statutory provisions and the Government orders
dated 25 .3 .1994 and the said observation cannot be applied in a case
where the Government orders are to the converse effect. As noted above
F State ofRajasthan has issued circular dated 24.06.2008 where following
is provided in para 6.2:
"Circular dated 24.06.2008
6.2 Jn the state, members of the SCIST/OBC can compete
G 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. "
30. It is relevant to note that in the case before us circular dated
24.06.2008 was not under challenge. The State has come up with circular
H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 969
[ASHOK BHUSHAN, J.]

dated 11.05.2011 which was issued during process of recruitment. The A
Division Bench has already recorded a finding that recruitment process
had begun prior to circular dated 11.05.2011. The State clearly provided
that candidates belonging to reserved category irrespective of having
.availed any of the special concessions secure bench mark prescribed
for general/open category candidates if selected, such a reserved category B
candidate shall be counted against unreserved/open category candidates.
31. We are of the view that judgment of this Court in Jitendra
Kumar Singh which was based on statutory scheme and circular dated
25 .03 .1994 has to be confined to scheme which was under consideration,
statutory scheme and intention of the State Government as indicated
from the said scheme cannot be extended to a State where the State C
circulars are to the contrary especially when there is no challenge before
us to the converse scheme as delineated by circular dated 24.06.2008.
32. In a recent judgment this Court has occasion to consider the
judgment of this Court in Jitendra Kumar Si11gh case. Learned counsel
for the appellants has placed much reliance on the judgment of this Court D
dated 6th April, 2017 in C.A. No.3609 of2017,Deepa E. V. vs. Union of
India. It is necessary to notice the facts of the case and the issues
decided by this Court in Deepa E. V. The appellants before this Court
·was an OBC category candidate who claimed that she should be treated
as general category candidate. The appellant had availed the age E
relaxation as OBC category candidate. A writ petition was filed by the
appellant claiming that she should be treated as candidate in general
category. The learned Single Judge dismissed the writ petition by judgment
dated 16.01.2015 which judgment was affirmed by the Division Bench
in the writ appeal. In paragraph 2 of the judgment facts were noted to
the following effect: F
''2. The appellant 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. The appellant belongs to Dheevara community which
is one of the "Other Backward Class". Since the appellant G
was aged 26 years, she got age relaxation, as was granted to
OBC category candidates. The appellant was one of the eleven
candidates from OBC who were called for interview. The
appellant secured 82 marks (in the list of candidates from
H
970 SUPREME COURT REPORTS [2017] 8 S.C.R.

A OBC category). One Ms. Serena Joseph (OBC), who secured
93 marks was selected and appointed. "
33. In paragraph 5 of the judgment this Court has noticed Rule 9
of the Export Inspection Agency (Recruitment) Rules, 1980 which
governs the recruitment. The Department of Personnel and Training
B had issued circulars dated 22.05.1989and01.07 .1998 for recruitment to
various posts and in paragraph 6 of the judgment the entire circular has
been extracted. Paragraph 6 of the judgment is extracted below:
"6. Department of Personnel and Training had issued
proceedings 0.M. No. 36012113188-Estt. (SCT), dated
c 22.5.1989 and OM No.3601111(98-Estt. (Res.), dated 1. 7.1998
laying down stipulation to be followed by the various
Ministries/Department for recruitment to various posts under
the Central Government and the reservation for SCISTIOBC
candidates. The proceedings reads as under:-

D "GI, Dept. of Per. & Trg., O.M. No. 36012113188-Estt. (SCT),
dated 22.5.1989 and OM No.3601111198-Estt. (Res.), dated
1.7.1998
"Subject:- Reserved vacancies to be filled up by candidates
lower in merit or even by released standards-candidates
E selected on their own merits not to be adjusted against
reserved quota. "
As part of measure to increase the representation of SC/ST
in the services under the Central Government, the Government
have reviewed the procedure for implementation the policy of
reservation while filling up reserved share of vacancies for
F
Scheduled Castes and Scheduled Tribes by direct recruitment.
The practice presently 3 Page 4 being followed is to adjust
SC/ST candidates selected for direct recruitment without
relaxation of students against the reserved share of vacancies.
The position of such SC and ST candidates in the final select
G list, however, was determined by their relative merit as assigned
to them in the selection process. When sufficient number of
suitable Scheduled Caste and Scheduled Tribe candidates were
not available to fill up all the reserved share of vacancies,
SC/ST candidates were selected by relaxed standards.
H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 971
[ASHOK BHUSHAN, J.]

2. It has now been decided that in cases of direct recruitment A
to vacancies in posts under the Central Government, the SC
and ST candidates who ar~ selected on their own merit,
without relaxed standards along with candidates belonging
to the oth~r communities, will not be adjusted against the
reserved share of vacancies. The reserved vacancies will be B
filled up separately from amongst the eligible SC and ST
candidates which will thus comprise SC and ST candidates
who are lower in merit than the last candidate on the merit
list but otherwise found suitable for appointment even by
relaxed standards, if necessary.
3. All Ministries/Departments will immediately review the C
various Recruitment Rules/Examination Rules to ensure that
if any provision is contrary to the decision contained in
previous paragraph exist in such rules, they are immediately
'suitably modified or deleted.
. 4. These instructions shall take immediate effect in respect of D
direct recruitment made hereafter. These will also apply to
selections where though the recruitment process has started,
the result have not yet been announced unless in the
Examination/Recruitment Rules or in the advertisement notified
earlier there is a specific provision to the contrary and the E
manner in which the SC/ST vacancies could be filled has been
indicated.
Clarification:- The instructions contained in the above
OM apply in all types of direct recruitment whether by written
test alone or written test followed by the interview alone. F
2. The above OM and the 0.M No.3601212196-Estt.(Res.),
dated 2. 7. 1997 provide that in cases of direct recruitment,
the SC/STIOBC candidates who are selected on their own merit
will not be adjusted against reserved vacancies. 3. In this
connection, it is clarified that only such SCISTIOBC G
· candidates who are selected on the same standards as applied
to general candidates shall not be adjusted against reserved
vacancies. In other. words, when a relaxed standard is applied
in selecting an SC/STIOBC candidates, for example in the
age-limit. experience. qualification. permitted number of
H
972 SUPREME COURT REPORTS [2017] 8 S.C.R.

A chances in written examination, extended zone of
consideration larger than what is provided (or general
category candidates, etc., the SC/STIOBC candidates are to
be counted against reserved vacancies. Such candidates
would be deemed as unavailable for consideration against
unreserved vacancies. "
B
(Underlining added)"
34.After reading Rule 9 as well as circular dated 01.07.1998 this
Court held that there is express bar for candidates belonging to SC, ST
and OBC having availed relaxation to be considered as general category
C candidates.
35. In Deepa E. V. reliance was also placed on Jitendra Kumar
Singh. This Court considered the case of Jitendra Kumar Singh and
the circular dated 25.03.1994 issued by the State of U.P. which come
up for consideration in Jitendra Kumar Singh. This Court in Deepa
D E. V. has distinguished Jitendra Kumar Singh in paragFaphs 8, 9 and
10 which is to the following effect:
"8. Learned counsel for the appellant mainly relied upon the
judgment of this Court in Jitendra Kumar Singh and Another
v. State of Uttar Pradesh and Others, reported in (2010) 3
E 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 25.3.1994. 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
F General Category. Jn 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 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 (supra) cannot be applied to the case
G
in hand.
9. Learned senior counsel appearing for the respondents has
also drawn our attention to paragraph Nos.65 and 72 in
Jitendra Kumar Singh (supra) to contend that principle in
H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 973
[ASHOK BHUSHAN, J.]

Jitendra Kumar Singh (supra) are in the context of A
interpretation of U.P. Act 1994 and in the particular factual
situation of the said case. Paragraphs 65 and 72, read as
under:-
"65. In any event the entire issue in the present appeals
need not be decided on the general principles of law laid B
down in various judgments as noticed above. Jn these
matters, we are concerned with the interpretation of the ·
1994 Act, the Instructions dated 25.3.1994 and the G.O.
dated 26.2.1999. 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 c
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 D
Government issued instructions dated 25.3.1994 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:- E
"4. If any person belonging to reserved 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 F
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 relaxati°'n
in age limit is merely to enable the reserved category G
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,
H
974 SUPREME COURT REPORTS [2017) 8 S.C.R.

A 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 ji1rther provides
that Government Orders in force on the commencement of
the Act in respect of the concessions and relaxations
B
including relaxation in upper age limit which are not
inconsistent with the Act continue to be applicable till they
are modified or revoked. "
JO. Having regard to the observations in paragraphs 65
and 72, in our view, the principles laid down in Jitendra
c Kumar Singh (supra) cannot be applied to the case in hand.
As rightly pointed out by the High Court that judgment in
Jitendra Kumar Singh (supra) was based on the statutory
interpretation of the U.P. Act, 1994 and Government order
dated 25.3.1994 which provides for entirely a different
D scheme."
36. The judgment of this Court in Deepa E. V. fully supports the
case of the appellants. In Deepa E. V. case also circular of the Central
Government dated 01.07 .1998/02. 7.1997 provided the relevant provision
which is to the following effect:
E "6.... ln other words, when a relaxed standard is applied in
selecting an SC/STIOBC 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.,
F the SCIST/OBC candidates are to be counted against reserved
vacancies. Such candidates would be deemed as unavailable
for consideration against unreserved vacancies. "
37. The contents of the abO\.: ::cular which speaks age relaxation
and makes reserved category candidates ineligible to be treated into
G general category candidates is same as in para 6.2 of circular dated
24.06.2008 as noted above which is applicable in the present case. Case
of Jitendra Kumar Singh is distinguishable with the present case as
has been distinguished by this Court in Deepa E. V. case.
38. After the judgment of this Court in Deepa E. V. (supra), the
H State of Rajasthan has issued circular dated 26.07.2017 in the light of
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 975
[ASHOK BHUSHAN, J.)

the judgment passed by this Court in Deepa E. V. By circular dated A
26.07.2017 directions have been issued to all the Appointing Authorities.
It is useful to refer to the circular dated 26.07.2017 which is to the
following effect:
"CIRCVLAR
Subject: Treatment to be given to the candidates belonging B
to the SC/ST/BC who are selected against reserved
category vacancies on the basis of their merit.
In supersession of this departments circular even
number dated 04.03.2014 on the above-mentioned subject,
the matter has been examined in consultation with the Law C
Department in the light ofjudgment passed by the Hon 'ble
Supreme Court in Civil Appeal No.3609 of 2012-Deepa
E. V. Vis Union of India and Ors. Dated 06.04.2017,
following instructions are hereby issued for the guidance
of all Appointing Authorities:- D
(a) Of a candidate belonging to SC/ST/BC has not
availed of any of the special concessions such as in
age-limit, marks, physical fitness etc. in the
recruitment process, which are available to the .
candidates belonging to these categories, except the E
concession offees, and he secures more marks than
the marks obtained by the last UR category
candidate who is selected, such a candida(e
belonging to the SC/ST/BC shall be counted against
the UR category vacancies and not the vacancies
reserved for the SC/ST/BC, as the case may be. F
(b) - if any SC/ST candidate gets selected against the UR
category vacancies on the basis of his merit without
availing of any of the special concessions which
are available to the candidates belonging to these
categories, except the concession offees, such a SCI G
ST candidate will be treated as a SC/ST candidate,
as the case may be, for all further services matters,
including further promotions, and all the benefits
which are admissible to the other SC/ST persons
H
976 SUPREME COURT REPORTS [2017] 8 S.C.R.

A under the various service rules/ government
instructions shall be admissible to them.
(c) The SC/ST/BC category candidates who get selected
against UR category vacancies on the basis of their
merit without availing of any of the special
B concessions which are available to the candidates
belonging to those categories, except the concession
offees, will not be counted against the posts
reserved for these categories when it comes to the
question of determining the total number of posts
occupied by the candidates of these categories in
c the particular post/cadre. "
39. Circular dated 26.07.2017 is the reiteration of earlier position
as was provided by circular dated 24.06.2008 quoted above. Thus, the
position is now well accepted even by State of Rajasthan that those
candidates belonging to SC/ST/BC who have obtained concession of
D age are not eligible to be migrated to the unreserved vacancies. Circular
dated 24.06.2008 being very much in existence, law laid down by this
Court in Deepa E. V. holds the field and the State of Rajasthan was
obliged to not migrate those SC/ST/BC category candidates who are in
unreserved category, who have taken concession of age.
E 40. At this stage, one of the submissions raised by the learned
counsel for respondent Nos.6 to 9 needs to be considered. Learned
counsel for respondent Nos.6 to 9 referring to paragraph 6.2 of circular
dated 24.06.2008 has emphasised on following part of circular dated
24.06.2008:
·F "6.2 ..... 0n the other hand, women, persons with disabilities,
sports persons, in-servicemen or non-gazetted employees and
ex-servicemen are counted against their respective category,
even if they are suitable for selection against non-reserved
or open competition vacancy/post. But it may be noted that if
G any remaining candidate of these categories ajier providing
the vacancies/posts reserved for them are more meritorious
than the last person of the open competition category, such
candidate will be selected even if it leads to selection of more
candidates than that provided by virtue of reservation ....... "

H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 977
[ASHOK BHUSHAN, J.]

His submission is that if members of the SC/STIOBC are more A
meritorious than the last person of the open competition category, such
candidate will be selected even if it leads to selection of more candidates
than that provided by virtue of reservation. The above submission of the
learned counsel for respondent Nos.6 to 9 is not based on correct reading
of paragraph 6.2. The opening part of paragraph 6.2 clearly states B
following:
"6.2 In the State, members of the SCISTIOBC .can compete
against non-reserved vacancies and be counted against them,
in case they have not taken any concession (like that of age,
etc.) available to them other than that relating to payment of
examination fee in case of direct recruitment.... " C

41. In the event, the submission oflearned counsel for respondent
Nos.6 to 9 is accepted the above two parts of paragraph 6.2 shall become
clearly contradictory. Since, in the beginning it is clearly stated that
candidates of SCISTIOBC shall be counted against unreserved vacancies
whereas if second part read as contended by the learned counsel for the D
private respondents, the first part of paragraph becomes redundant and
unnecessary. The scheme of circular dated 24.06.2008 is not so as
contended by the learned counsel for the private respondents. The part
on which reliance has been placed by the learned counsel for respondent
Nos.6 to 9 is a part which deals with the case of women, persons with E
disabilities, sports persons, in-servicemen or non-gazetted employees and
ex-servicemen, for those categories it is provided that if they have obtained
marks more than the last person of the open competition category, they
will be adjusted against unreserved candidates. Thus, the above
·submission of learned counsel for the private respondents cannot be
accepted. F

42. One more judgment of this Court which needs to be referred
to is Vikas Sankhala and others vs. Vikas Kumar Agarwal and others,
(2017) I SCC 350. Somewhat similar issues were raised in above case
with regard to migration of reserved category candidates into general
category which was objected by the candidates belonging to general G
category on the ground that they have been selected after obtaining
relaxation of marks permissible to reserved category candidates. They
are not entitled to be included into general category. The issue is
mentioned in paragraph 24 which is to the following effect:
H
978 SUPREME COURT REPORTS [2017] 8 S.C.R.

A "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
B
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
c 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. "
D
43. Under the orders of the State Government dated 23.3.2011
relaxation in marks of the TET ranging from 10% to 20% was allowed
to different reserved categories. After availing such relaxation the
reserved category candidates were selected as having obtained more
marks than the last general category candidate and were included in the
E general category candidates. Different circulars issued by the State of
Rajasthanincludingcircularsdated 17.06.1996, 04.03.2002and11.05.2011
were noticed by this Court. The general category candidates contended
that since relaxation was obtained prior to issuance of circular dated
11.05.2011, circular dated 11.05.2011 is not applicable and as per earlier
F circulars reserved category candidates having obtained relaxation in marks
were not eligible to be included into general category candidates. This
Court after noticing the above arguments, ultimately held that the
relaxation given in the marks in TET examination is not part ofrecruitment
process. In paragraph 80 ofthe judgment this Court reached on following
conclusion:
G
"80 ..... Thus, in recruitment process no weightage or
concession is given and a/location 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. "
H
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 979
[ASHOK BHUSHAN, J.]

44. This Court having come to the conclusion that relaxation given A
in TET was not part of recruitment process, the Circulars issued by the
State ofRajasthan as noted above were held not to be applicable. Thus,
in the above case although somewhat similar issues were raised but this
Court has held that relaxation in TET marks was not part of recruitment
process. The said judgment does not help either of the parties.
B
45. The Division Bench as well as learned counsel appearing for
the State of Rajasthan has relied on circular dated 11.05.2011. The
Division Bench has observed that circular dated 11.05.2011 did not change
the rules of game. Following observation has been made with regard to
circular dated 11. 05.2011:
c
"In the instant case, State Government in supersession of its
earlier policy decision regarding treatment to be given to the
candidates belonging to reserved category who are selected
against unreserved category vacancies, issued directives for
guidance to the appointing authorities vide Circular dated
111512011 that neither changed the eligibility criteria seeking D
employment nor manner & method of selection of suitable
candidates and in our considered view, circular dated 111051
2011 did not change Rules of the game after the game is
played or process of selection is initiated as observed by the
learned Single Judge but such policy decisions are always E
within realm of judicial review and this what the Court
considered & examined policy decision of the_ Government
impugned."
46. As noticed above Rule 7(1) of 1989 Rules expressly provides
that "reservation of vacancies for the Scheduled Castes and the F
Scheduled Tribes shall be in accordance with the orders of the
Government (or such reservation in force at the time of recruitment
i.e. by direct recruitment and by promotion".(underlined by us). The
circular of the Government shall be treated to be in force for the purpose
of reservation which is in force at the time of recruitment. Recruitment
commenced by the advertisement dated 7.10.2010 and 25.10.2010 at G
that time only circular dated 24.06.2008 was in force, hence, subsequent
circular dated 11.05.2011 cannot be applied in the present recruitment.
There cannot be any dispute that the policy of reservation can always
be changed by the State Government and the State Government can
H
980 SUPREME COURT REPORTS [2017] 8 S.C.R.

A change the manner and methodology of implementing the reservation
and criteria of reservation of the reserved category candidates and
general category candidates. It is also relevant to note that both learned
Single Judge and Division Bench have not approved circular dated
11.05.2011 in toto. Both the Courts have held that apart from age
relaxation, ifthe candidate has taken any other relaxation circular dated
B
11.05.2011 cannot help him in migrating into general category candidate.
47. We are thus of the opinion that Division Bench erred in
modifying the judgment of the learned Single Judge and holding that
candidates availing relaxation of age belonging to reserved category
candidates who find place in merit list of the general/open category has
C to be treated to be included in the general/open category. The above
conclusion of the Division Bench is unsustainable for the reason as
indicated above.
48. ln view of the foregoing discussion, we are of the considered
opinion that the candidates belonging to SC/ST/BC who had taken
D relaxation of age were not entitled to be migrated to the unreserved
vacancies, the State of Rajasthan has migrated such candidates who
have taken concession of age against the unreserved vacancies which
resulted displacement of a large number of candidates who were entitled
to be selected against the unreserved category vacancies. The candidates
E 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
F and are working for more than last five years. The reserved category
candidates who were appointed on migration against unreserved
vacancies are not at fault in any manner. Hence, we are of the opinion
that SC/ST/BC candidates who have been so migrated in reserved
vacancies and appointed should not be displaced and allowed to continue
G in respective posts. On the other hand, the unreserved candidates who
could not be appointed due to the above illegal migration are also entitled
for appointment as per their merit. The equities have to be adjusted by
this Court.
49. On the question of existence of vacancies, although learned
H counsel for the appellant submitted that vacancies are still lying there,
GAURAV PRADHAN & ORS. v. STATE OF RAJASTHAN 981
[ASHOK BHUSHAN, J.]

·which submission however has been refuted by the learned counsel for A
the State ofRajasthan. However, neither appellants had produced any
details ofnumber of vacancies nor the State has been able to inform the
Court about the correct position of the vacancies. We thus for adjusting
the equity between the parties issue following directions:
(1) The writ petitioners/appellants who as per their merit were · B
entitled to be appointed against unreserved vacancies which vacancies
were filled up by migration of SC/ST/BC candidates who had taken
relaxation of age should be given appointment on the posts. The State is
directed to work out and issue appropriate orders for appointment of
such candidates who were as per their merit belonging to general category
candidates entitled for appointment which exercise shall be completed C
within three months from the date copy of this order is produced.
(2) The State shall make appointments against the existing
vacancies, if available, and in the event there are no vacancies available
.for the above ·candidates, the supernumerary posts may be created for
adjustment of the appellants which supernumerary posts may be D
terminated as and when vacancies come into existence.
50. All the appeals are allowed accordingly.

Divya Pandey Appeals allowed.