In CWP No. 25174 of 2014 (O&M)-PUNJ HC-In absence of provisions & government circulars/orders to contrary,  reserved category candidates having availed relaxation of age are not disqualified to be adjusted against open category seats: P&H HC applies ratio of Top Court’s judgment in writ challenging appointment of overaged candidates pertaining to SI recruitment of 2013 
Justice Jaishree Thakur [14-11-2022]

 

Read Order: Harpreet Kaur and Others v. State of Punjab and Others 

Monika Rahar

Chandigarh, November 15, 2022: While affirming that in the absence of any instructions stating that the persons of reserved category availing relaxation in age limit, experience, qualification, number of chances to appear in the examination and having higher marks than the last person in the unreserved category, will continue to be treated as unreserved candidates, the Punjab and Haryana High Court has dismissed a petition challenging appointment of overaged candidates who availed the benefit of age relaxation by applying in the reserve category, but were selected against the post meant for general category. 

The bench of Justice Jaishree Thakur held, 

“The State while offering the appointment to the candidates of the reserved category having higher merit than a candidate of an unreserved category and migrating them to the general category, was guided by the principles as laid down in Jitendra Kumar Singh's case (Supra) and its Instructions dated 9.11.2009… Since the judgment in Jitendra Kumar Singh's case (Supra) was prevalent at that time, the State in its wisdom followed the ratio as settled.”

The facts in brief are that the official respondents issued an advertisement for recruitment of 110 posts of Sub-Inspector (Female) in November, 2013. In the said advertisement, it was clearly mentioned that against a particular category, there were a particular number of posts and the eligibility criteria was also different. Not only in the physical efficiency test, but even in the written test, there was difference in eligibility conditions. 

The petitioners applied for the post of Sub-Inspector under the general category and cleared the physical efficiency as well as written test and were called for interview. A final list of selected candidates was published and the petitioners, who were hopeful of getting appointment under general category, were surprised to see that the reserved category candidates, who scored higher marks than them, were selected against the post kept for general category candidates, as a result of which the petitioners who had scored 59, 57 and 54 marks respectively were not on the merit list. 

It was averred that, as per the final merit list, there were 17 candidates who applied under various reserved categories (impleaded as respondents No. 3 to 19) and were selected against the posts kept for general category. It was further averred that some of the respondents who were over age, applied for the post of Sub-Inspector under the reserved category and availed the benefit of age relaxation and were selected against the post meant for general category. Since, their selection was against the very spirit of the terms and conditions of the eligibility criteria as laid down in the advertisement the same was liable to be set aside, the petitioners averred. 

The Counsel for the petitioners contended that a candidate belonging to a reserved category, who availed age relaxation in the selection process, could not thereafter seek to be accommodated against general category seat. It was added that they had to satisfy all conditions as general category candidates in case they wanted to be selected against the seats meant for general category.

Per contra, the State Counsel contended that private respondents who belonged to reserved category of SC and BC were selected in general category on their own merit as per State Government Instructions issued in 2009. It was clearly mentioned in these instructions that candidates belonging to SC and BC category who gain seniority cum merit in general category cannot be counted in reserved category. Therefore, it was argued that there was no fault in the selection process or appointment of the private respondents and, therefore, no interference was called for in the instant writ petition. 

The sole question that arose for the consideration in the writ petition was whether a candidate who applied under the reserved category, after seeking relaxation in age or otherwise, can be accommodated or migrated to general category seat?

The Court in this respect made reference to the Supreme Court case wherein it was held that candidates belonging to any of the vertical reservation categories are entitled to be selected in "open or general" category and it was further observed that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories that they belong to. It was also held that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. 

Further, on the question of allowing a reserved category candidate, who had availed age relaxation to be migrated and selected as a general category candidate, the Court made reference to the case of Jitendra Kumar Singh and another v. State of UP and others, 2010 (1) S.L.R. 526 wherein it was held that plea that relaxation in fee or age would deprive the candidates belonging to reserved category of an opportunity to compete against General category candidates is without any foundation and that reserved category candidates having availed relaxation of age, are not disqualified to be adjusted against open category seats. 

However, in the case Gaurav Pradhan and others v. State of Rajasthan and others, (2018) 11 SCC 352, the Supreme Court observed that the ratio of judgment in Jitendra Kumar Singh's case has to be read in context of the statutory provision and the government orders/circulars involved therein as it was confined to the scheme under consideration in that case. 

Highlighting this point of taking in consideration statutes/ circulars etc., the recent Supreme Court case of Niravkumar Dilipbhai Makwana Versus Gujarat Public Service Commission and others, 2019 (3) S.C.T. 359 was cited wherein the Top Court held that a reserved category candidate who availed age relaxation in the selection process cannot be migrated or accommodated in the general category seat. In this case, the Apex Court, while going into the issue, took note of the State Government Circular of 2000 which 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. 

Admittedly, in this case, the Court observed that neither the counsel for the petitioners nor the counsel for the respondents-State were in a position to show any such circular/instructions wherein it was specified that a person of reserved category who has availed relaxation, viz age limit, experience, qualification, number of chances to appear in the examination, would be treated as reserved candidate only, as was the situation in the judgments cited above. 

The Court also observed that the instructions as relied upon by the respondents-State were not relevant to the present case, as it did not pertain to any age relaxation availed of by a reserved category candidate. The instruction of the year 2010 was based on the general principle of vertical reservation, the Bench added. 

Further, the Court observed that reliance could not be placed on Circular issued in the year 2017 as the recruitment process in the instant case was initiated in the year 2013. 

“This Circular as issued in 2017 has not been made applicable retrospective. The State while offering the appointment to the candidates of the reserved category having higher merit than a candidate of an unreserved category and migrating them to the general category, was guided by the principles as laid down in Jitendra Kumar Singh's case (Supra) and its Instructions dated 9.11.2009”, the Court observed. 

Further, it was also noted that tn the case in hand, there were no instructions whereby the persons of reserved category who have availed relaxation, namely age limit, experience, qualification, number of chances to appear in the examination and have higher marks than the last person in the unreserved category, will continue to be treated as unreserved candidates. 

“Since the judgment in Jitendra Kumar Singh's case (Supra) was prevalent at that time, the State in its wisdom followed the ratio as settled”, the Court held. 

In light of the above, the Court held that the petitioners though may have some merit in their case to the effect, that a candidate of the reserved category who has availed benefit of relaxation in age limit, experience, qualification etc. has to be treated as reserved category candidate based on the instructions issued in the year 2017, but the Court opined that these instructions could not be made applicable retrospectively. 

“The private respondents who were appointed from the reserved category by migrating them into the general category cannot be faulted as the migration was not of their own accord nor any misrepresentation made by them. The action of the respondents- State in migrating the private respondents to the general category was based upon the law as applicable at the relevant time”, the Court held. 

The petitions were dismissed.