$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:

12. h March, 2019 Decided on:

29. h March, 2019 PREM CHAND KUMAR AND ORS. WP (C) No.1350/2017 ..... Appellant Through: Mr. Pradeep Gupta, Mr. Parinav and Ms. Mansi Gupta, Gupta Advocates. RAILWAY PROTECTION FORCE & ORS. versus .....

... RESPONDENTS

Through: Mr. Rakesh Mittal, Advocate for CORAM: JUSTICE S. MURALIDHAR JUSTICE SANJEEV NARULA RPFC. Dr. S. Muralidhar, J.:

JUDGMENT

1 55

... Petitioner

s who applied pursuant to an Employment Notice issued by the Railway Board for the post of Constable (Water Carrier) etc. in the Railway Protection Force („RPF‟) including the Railway Protection Special Force („RPSF‟) in seven different categories including Water Carrier, Safaiwala, Washerman, Barber, Mali, Tailor and Cobbler have filed the present petition for directions to the

... RESPONDENTS

to appoint them to the vacancies in the above posts.

2. The background facts are that Employment Notice No.1/2013 dated 6th December, 2013 was issued by the Railway Board inviting applications for the aforementioned post of Constables. The number of vacancies to be filled WP (C) 1350/2017 Page 1 of 24 up was 659. There were 406 vacancies in the post of Constable (Water Carrier), 117 for Constable (Safaiwala), 53 for Constable (Washerman), 61 for Constable (Barber), 7 for Constable (Mali), 9 for Constable (Tailor) and 6 for Constable (Cobbler). Subsequently, the above 659 vacancies were revised to 763 vacancies across the board for all categories.

3. The notes in the notice read as under: “Note (1) Reservation for Ex-servicemen will be 10% of the vacancies in all trades in respective category. Note (2) 10% of the vacancies shall be filled up by Female candidates. Note (3) (a) The number of vacancies shown under various categories are provisional and may increase or decrease or even become nil depending upon the requirement of the Railway Administration. (b) The Railway Administration reserves the right to cancel the recruitment as well as the notified vacancies at its discretion at any time and such decision shall be binding on all concerned. (c) In the event of cancellation of notified vacancies, the examination fee will not be refunded. (d) These posts have not been identified as suitable for persons with disabilities and hence they have been exempted from the purview of Section 33 and 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995 by the Ministry of Social Justice & Empowerment. (e) After recruitment, finally selected candidates are liable to serve anywhere in India in Railway Protection Special including Railway Protection Special Force.” WP (C) 1350/2017 Page 2 of 24 4. Para 4 of the notice specified the eligibility conditions. The minimum educational qualification was from a or equivalent “Matriculation recognized Board/University. Educational certificate other than State Board/Central Board should be accompanied with Govt. of India notification declaring that such qualification is equivalent to Matriculation/10th Class pass for service under Central Govt. or ITI.” 5. As far as age limit is concerned, it had to be not less than 18 years and not more than 25 years as on 1st January, 2014. There was relaxation in the upper age limit up to five years for SC/ST candidates; for up to three years for OBC candidates; for Ex-service men up to the extent of service rendered in defence plus three years provided they had put in more than six months service after attestation and five years to candidates who have ordinarily domiciled in the State of J & K from 1st January, 1980 to 31st December, 1989. There was no age relaxation for SC/ST/OBC candidates applying against unreserved vacancies. As far as physical measurements were concerned, the criteria was as under: Category Height for Chest Chest Height male unexpanded expanded for (in cm.) (in cm.) (in cm)* UR/OBC SC/ST Hillman** 165 160 163 80 76.2 80 85 81.2 85 female (in cm.) 157 152 155 * A minimum expansion of 5 cm in chest is essential. ** (Garhwalis, Gorkhas, Kumaonese, Dogras, Marathas, person hailing from Himachal Pradesh, Sikkim, Ladakh, Kashmir Valley and North Eastern States subject to production of domicile certificate from DM,SDM/Tehsildar and other categories specified by the Central Government from time to time.” WP (C) 1350/2017 Page 3 of 24 6. There was to be a written examination followed by a Physical Efficiency Test (PET), Physical Measurement Test (PMT) and Trade Test. This was followed by bonus marks, if any and document verification. As far as the written exam was concerned, the stipulation was a candidate should obtain at least 35% marks (30% marks in the case of SC/ST candidates) in the written exam for being considered for other test(s). There were separate standards prescribed for the PET, for the trade test (50 marks) and bonus marks (5) if certain other conditions were met.

7. Of the applications received from across the country 1,70,802 were found valid and were issued call letters. A total of 44087 candidates appeared in the written exam held on 15th February, 2015 and supplementary exam held on 30th August, 2015. Of these, 16,396 candidates were short listed. 16181 were male candidates and Ex-servicemen whereas 215 were female candidates.

8. The PMT and PET were held at four venues across the country. A total of 714 candidates (both male and female) qualified for the trade test and documents verification. This result was published on 17th February, 2016.

9. Certain candidates in the State of Assam filed WP (C) No.2120/2016 in the High Court at Guwahati (Japhed Dhan and others vs. Union of India) claiming that they had been wrongly disqualified in the PMT and PET. While directing notice to issue in the petition the High Court at Guwahati by interim order dated 1st April, 2016 restrained the

... RESPONDENTS

from making any appointment pursuant to the Employment Notice No.1/2013. WP (C) 1350/2017 Page 4 of 24 10. Consequent upon the order of the Guwahati High Court, after excluding 74 the vacancies of the North Frontier Railway, the vacancies that could be filled up was 689. Of these, 400 candidates were empanelled and found fit for medical examination. It is stated that three of the

... Petitioner

s could not qualify the trade test. 55

... Petitioner

s qualified in a particular trade but were lower in the merit list and could not be accommodated in a particular trade “for want of vacancies as per merit-cum-preference basis”. The cut off various trades is indicated in a tabular form by the

... RESPONDENTS

in their UR5200 OBC4212 SC5702 42.60 68.94 55.18 reply as under: Trades (Water Constable Carrier) Constable (Safaiwala) Constable (Washer man) Constable (Barber) Constable (Mali) Tailor Gr.-III Cobbler Gr.-III4329 42.34 65.36 45.74 * ST5333 46.44 47.05 43.50 67.00 * * 68.26 39.98 42.60 No vacancy * * 44.06 72.37 No vacancy No vacancy 11. It is stated by the

... RESPONDENTS

that “Since the candidates were not qualified in these Trade tests against the category, the posts have remained vacant for want of eligible candidates, resulting which less number of candidates were empanelled against the vacancies notified.” 12. It is contended by the

... RESPONDENTS

that Directive 34 dated 7th January, 2015 has no relevance as it was issued after Notification No.1/2013 dated WP (C) 1350/2017 Page 5 of 24 6th December, 2013. It is further contended therefore that Directive 34 has no retrospective effect.

13. In the rejoinder filed on 25th July 2017, the

... Petitioner

s point out inter- alia that the

... RESPONDENTS

had selected 400 candidates as against 689 vacancies. Therefore, as of the date of filing of the rejoinder i.e. 25th July, 2017, 289 vacancies were still available. It is submitted that each

... Petitioner

had procured more than the qualifying marks i.e. 35% in the general category and 30% in the SC and ST category and therefore they were likely to be considered for the 289 vacancies. It is pointed out that the marks in the trade test is not to be added to the marks in the written examination.

14. On 15th February, 2017 while directing notice to issue in the present petition, the Division Bench of this Court ordered that “all actions taken by the

... RESPONDENTS

will abide by the result of the writ petition.” Thereafter on 27th July, 2017 the following order was passed: “Counsel for the respondents has submitted that candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, who were given relaxation with regard to upper age limit, physical standards etc. were considered only against the seats reserved for the said category and not as general candidates. However, the qualified candidates belonging to the reserved category who had not taken benefit of any relaxation have been allocated general category seats. The respondents would file an affidavit clearly affirming the aforesaid position within a period of four weeks. The petitioner is given liberty to file response to the said affidavit within four weeks thereafter. WP (C) 1350/2017 Page 6 of 24 Relist on 16th October, 2017.” 15. Consequent thereto, the

... RESPONDENTS

filed an additional affidavit on 28th August, 2017. In this affidavit it was stated that as against 689 vacancies, 400 candidates had been empanelled and found fit for medical examination. Since most of the

... Petitioner

s belonged to reserved categories and marks of some of the candidates was higher than the cut off for the unreserved (UR) category they could not be selected as they had got age relaxation.

16. On their part, the

... Petitioner

s filed a response to the aforementioned additional affidavit on 16th January, 2018. It was pointed out that a one-time relaxation could be granted considering that some of

... Petitioner

s would be overage if they were not given a chance. It was further pointed out that out of the 400 vacancies for which the panel was prepared only 362 candidates were selected for training. Therefore, there were sufficient number of vacancies to accommodate all the

... Petitioner

s. It was further pointed out that one of the

... Petitioner

s i.e.

... Petitioner

No.12 had received a reply pursuant to an application made by him under the Right to Information Act, 2005 (RTI Act). He had qualified in the trade test for Constable (Mali) securing 56.04 marks in the written exam. The cut off for the said post in the unreserved (UR) category was 65.36%. It is prayed that he should be given one more chance.

17. At the hearing on 21st February, 2018 counsel for the

... Petitioner

stated that the

... RESPONDENTS

had themselves recently permitted a change of category for certain employees in the select list. Copies of documents WP (C) 1350/2017 Page 7 of 24 uploaded on the website of the

... RESPONDENTS

on 8th February, 2018 were handed over in the Court. It was furnished to the counsel for the

... RESPONDENTS

who sought time for instructions. On the next date i.e. 18th April, 2018 he opted to file an affidavit.

18. Pursuant thereto, a further additional affidavit was filed on 4th July, 2018 by the

... RESPONDENTS

. It was stated in paras 5 to 9 therein as under: “5. That subsequently, 400 qualified candidates were directed for Medical examination, out of which 360 candidates were declared fit in Medical examination (19 absent, 19 declared unfit and 2 under medical examination, Total-40).

6. That out of 360 candidates, only 337 have joined training at various Training Centres of their respective trade. (16 unwilling, 5 of NFR candidates withheld due to order of Hon'ble Guwahati High Court, 2 Adverse Police Verification. Total -23).

7. Thereafter, supplementary list was issued and 29 fresh candidates (copy enclosed) were selected against the vacancies for various vacant trades as per vacancy/category position and their preference. It is pertinent to mention here that some candidates had fulfilled criteria of selection but could not be considered due to non availability of vacancy in trade of their choice, such candidates were substituted in supplementary list. But at this juncture, no candidate is available who is fulfilling the selection criteria.

8. That 06 candidates who are in the list of petitioners in present Writ Petition also got selected for the post of ancillary staff as per vacancy/category position and choice filled by them.

9. That the trade of the candidates selected subsequently, has been changed in accordance with their preferences due to WP (C) 1350/2017 Page 8 of 24 availability of the vacancies in that particular trade. The change of category has also been done in some cases due to availability of in accordance with the policy of Government of India.” the vacancies which was fulfilled 19. It is pointed out that supplementary list of 29 new candidates were included in the select list as per vacancies. 21 of these had been allotted the trade Water Carrier, 7 as Safaiwala and one as Cobbler. It was further stated “2. 09 selected candidates who had been empanelled as water carrier in OBC category in the main panel have now been allotted trade Water carrier in UR category as per merit of candidate who were selected without getting relaxation of OBC category as the vacancies occurred due to shortfall in main panel against Water Carrier UR category (Annexure-B) 3. 10 selected candidates who had been empanelled (safaiwala 07 and washer man 03) in the main panel, have all been now allotted water carrier in their existing category (WC-SC:03 and WC-UR:

07. as per their preference which results up gradation in category. (Annexure-C)” 20. On 11th February, 2019 the following order was passed: “1. Learned counsel for the

... RESPONDENTS

relies on the decisions in E.V.Deepa v. Union of India AIR2017SC1945and Gaurav Pradhan v. State of Rajasthan (2018) 11 SCC352 He also refers to Clause 14 (f) of the Standing Order No.85 dated 5th March, 2009, which states that those candidates who do not avail any relaxation in age, physical measurements and qualifying marks in the written test and get selected purely on merits 'shall not be counted against the vacancy reserved for such categories'.

2. He further states, on instructions, that there are several persons in the merit list above the present

... Petitioner

s and, therefore, even if the plea of the

... Petitioner

s, based as it is on the decisions in Jitendra Kumar Singh v. State of U.P. (2010) WP (C) 1350/2017 Page 9 of 24 3 SCC119and Vikas Sankhala v. Vikas Kumar Agarwal (2017) 1 SCC350is accepted, they will still not be able to secure appointments as sought by them.

3. As far as the last submission is concerned, learned counsel for the

... RESPONDENTS

states, on instructions, that within two weeks he will file an affidavit placing on record the factual position, with an advance copy to learned counsel for the

... Petitioner

s who is permitted to file response thereto before the next date.

4. List on 12th March, 2019.

5. The matter be treated as part-heard.” 21. Pursuant thereto, the

... Petitioner

s have filed an additional affidavit on 6th March, 2019. It is pointed out that there is a Standing Order No.78 dated 21st February, 2008 the relevant to the case on hand i.e. Recruitment of Staff in RPF/RPSF. The procedure for selection as set out in para 14 (b) of the above Standing Order talked of preparation of broad sheet and merit list. It was further stated in the same Standing Order No.78/2008 “that in case of ancillary staff like Water Carrier, Safaiwala, Barbar, Mali etc. candidates from SC, ST and OBC categories who come into the general merit list by securing higher marks shall be selected against unreserved vacancies.'

22. It is stated that in Standing Order No.85 dated 5th March, 2009 there was no reference to the post of ancillary staff as in the present case. A collective reading of the advertisement notice plus the above Standing Order No.78 showed that there was no bar for selecting/placing the SC/ST/OBC candidates having secured more marks than the general category candidates as against unreserved (UR) vacancies, if available. WP (C) 1350/2017 Page 10 of 24 23. Mr. Pradeep Gupta, learned counsel for the

... Petitioner

s, distinguished the decisions in Gaurav Pradhan v. State of Rajasthan (supra) and Deepa E.V. v. Union of India (2017) (supra). Reliance instead was placed on Jitendra Kumar Singh v. State of Uttar Pradesh (supra) and Vikas Sankhala v. Vikas Kumar Agarwal (supra).

24. The issue that arises is whether the

... Petitioner

s who secured more than the UR candidates in the written test and trade test can be considered against the UR vacancies?.

25. Before discussing the respective submissions of counsel for the parties certain provisions of the Railway Protection Force Act, 1957 (RPF Act) relevant to the issues on hand may be examined. The relevant portions of Sections 45 to 49 of the RPF Act read as under: “45. Recruitment:

45. 1 Direct recruitment to the Force shall be made at the level of Constables, Sub-Inspectors and Assistant Commandants and all other posts shall be filled in by promotion or through a limited departmental competition from amongst the eligible enrolled- members of the Force or by taking personnel on deputation in accordance with these rules. 45.2 The Chief Security Commissioner concerned shall work out each year the number of vacancies in each rank and shall take steps to fill them up in accordance with these rules. 45.3 The procedure for filling up these posts and other matters not specially provided for in these rules shall be such as may be specified in the Directives. WP (C) 1350/2017 Page 11 of 24 46. Ineligibility: No person— (a) who is not a citizen of India, or (b) who has entered into or contracted a marriage with a person having a spouse living, or (c) who having a spouse living, has entered into or contracted a marriage with any person, shall be eligible for appointment as member of the Force.

47. Enlistment standards: Physical standard: The minimum physical standard for enlistment as an enrolled member of the Force (including ancillary staff specified in Schedule I shall be as under: (a) Height—165 cms. (b) Chest: Unexpanded—80 cms. Expanded—85 cms. Provided that for persons who have not attained the age of 20 years, a relaxation of 2.5.cms. in height and 5 cms. in chest measurements maybe allowed, if the Divisional Medical Officer certifies that the person concerned is likely to attain the minimum prescribed standard on attaining the maximum age applicable in the case: Provided further that the Director-General may prescribe separate physical standard for female candidates for direct recruitment.

48. Age and educational qualifications: ..... 48.2 A candidate for the post of Constable, by direct recruitment, (i) must be above the age of 18 years but below the age of 25 years on the date of notification of recruitment, and, (ii) must have passed High School Examination or its equivalent WP (C) 1350/2017 Page 12 of 24 from a recognised Board or University: Provided that the upper age limit for posts to be filled by direct recruitment may be relaxed for candidates belonging to the Scheduled Castes or Scheduled Tribes and other special categories of persons in accordance with orders issued by the Central Government from time to time in this regard: Provided further that proficiency in games, sports and athletics, music, membership of National Cadet Corps and other organisations or institutions as may be approved by the Director- General shall be given due weightage as additional qualifications: Provided further that preference may be given to the children of the members of the Force who, while facing criminals or in action during the civil strife, violent demonstration or during any other active or operational duty, are killed or became disabled or invalidated out of service in case such children are otherwise eligible and suitable for the post.

49. Procedure of recruitment: ..... 49.2 Selection for direct recruitment to the posts of Constables shall be made by a departmental committee of four persons holding the post of Commandant or Senior Commandant nominated by the Inspector General/Deputy Inspector General of the Zonal Railway or Railway Protection Special Force and where such selection includes the selection for reserved posts for the Scheduled Castes/Scheduled Tribes or the Backward Classes, one officer holding any of the said posts and belonging to the Scheduled Castes/Scheduled Tribes or the Backward Classes, as the case may be, shall also be nominated by the Inspector General/Deputy Inspector General to be a member in such committee. WP (C) 1350/2017 Page 13 of 24 ..... 49.4 Procedure of selection shall be so evolved as to— (a) reduce the chances of impersonation; (b) eliminate at the initial stage all such candidates who are unfit for consideration; and Final selection shall be based on uniform standards of tests for which guidelines shall be prescribed by the Director-General.

26. It is thus seen that while Section 47 lays down the physical standards, Section 48 the age and educational qualifications, Section 49.5 states that the final selection would be based on “uniform standards of test and viva-voce.” for which directives were issued by the Railway Board.

27. Under Directive No.34 dated 7th January, 2015 the

... RESPONDENTS

issued statutory rules under Rule 20 of the Railway Protection Force Rules, 1987 (RPF Rules). In terms of the RPF Rules 40% marks were required to qualify the trade test, 35% for SC/ST candidates. In the Employment Notice No.1/2013 it is specifically mentioned that the marks obtained in the trade test will not be added to the written exam mark in the compilation of final list.

28. It is pointed out that there is no condition of 50% marks in the trade test either in the RPF Act or in the RPF Rules. While the

... Petitioner

s have referred to Standing Order No.78 dated 21st February, 2008 on the subject of recruitment of ancillary staff, the

... RESPONDENTS

have relied on Standing Order No.85 dated 5th March, 2009. WP (C) 1350/2017 Page 14 of 24 29. A perusal of Standing Order No.85 dated 5th March, 2009 reveals that it applies to recruitment to the post of „Constables‟. On the other hand, Standing Order No.78 dated 21st February 2008, a copy of which has been enclosed with the

... Petitioner

s‟ additional affidavit filed on 6th March, 2019 is on the specific subject “recruitment of ancillary staff in RPF/RPSF”. What is significant here is para 14(b) which reads as under:

'14- Preparation of Broad Sheet and Merit List: (a) Xxx (b) Candidates from SC. ST and OBC categories who come into the general merit list by securing higher marks shall be selected against unreserved vacancies. If more than one candidate has obtained the same mark, they should be arranged in the order of their dates of birth. Those seniors in age will be placed above those junior in age. In case the dates of birth also happened to be the same they may be placed alphabetically'

30. Thus, there is a specific direction regarding SC/ST/OBC candidates securing higher marks in the general list being selected against unreserved vacancies. The

... Petitioner

s are right in the contention that Standing Order No.85 dated 5th March, 2009 is not specific to the recruitment of ancillary staff. In fact, this is an answer to the query posed by this Court in its order dated 26th July, 2018 regarding eligibility condition stipulated in Para 4 (e) of the Employment Notice No.1/2013 for filling up post of „ancillary staff in different trades”.

31. Clearly there are a separate set of criteria prescribed for such ancillary trades which factor does not seem to have been accounted for by the

... RESPONDENTS

themselves and preparing the broad sheet and merit list. It WP (C) 1350/2017 Page 15 of 24 appears that the various steps in the recruitment process i.e. receipts of application, sorting of the application checking of physical measurements the PET and preparation of the broad sheet and merit list are the same for both categories i.e. UR and reserved.

32. A careful perusal of the enclosure to the additional affidavit filed on behalf of the

... RESPONDENTS

on 28th August, 2017. The caveat set out in para 8 of this affidavit is significant and reads as under: “Some petitioners belonging to SC/SC category who were selected by getting relaxation of reserve category have secured higher marks in written test then cut off of UR category, but they could not be treated in UR category in which the candidates qualified in trade test, due to relaxation, they had to remain in their respective reserve category only.” 33. What is clear from the above statement is that the

... Petitioner

s have got higher marks in written test than the cut off for the UR category. It is only on account of relaxation that they remained in the respective category. A close perusal of the enclosure (R-10) shows that they got relaxation in height or chest measurements which anyway they were entitled to as SC/ST candidates in terms of the advertisement. The said list is clearly therefore been prepared without accounting for Standing Order No.78 which, as already noticed, permits them to be accommodated against the UR vacancies.

34. The Court next proposes to discuss the case law relied upon by both sides. On behalf of the

... RESPONDENTS

Mr. Mittal, learned counsel placed considerable reliance on two judgments, viz., Deepa E.V. v. Union of India WP (C) 1350/2017 Page 16 of 24 (supra) and Gaurav Pradhan v. State of Rajasthan (supra). 35.1 The facts in Deepa E.V. (supra) were that the Appellant applied for the post of Laboratory Assistant, Grade-II in the Export Inspection Council of India functioning in the Ministry of Commerce and Industry, Government of India. The Appellant was in the OBC category and was among the 11 candidates from that category called for the interview. She secured 82 marks. One other OBC candidate who had secured 93 marks was selected. In the general category none of the candidates secured the minimum cut off of 70 marks. 35.2 The Appellant accordingly contended that she should be accommodated in the general category. Her writ petition was dismissed by the Single Judge and her appeal against that judgment was also dismissed by the Division Bench. 35.3 The Supreme Court referred to condition three in the proceedings dated 1st July, 1998 issued by the Department of Personnel and Training, Government of India on the subject “Reserved vacancies to be filled up by candidates lower in merit or even by released standards-candidates selected on their own merits not to be adjusted against reserved quota.” Condition three read as under: this connection, “3. In 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. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC WP (C) 1350/2017 Page 17 of 24 for example in for general category candidates, etc. candidates, the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.” (emphasis in original) 35.4 It was on the account of the fact that specific bar as above had not been challenged by the Appellant in that case that the Supreme Court was unable to grant her the relief prayed for. 36.1 In Gaurav Pradhan v. State of Rajasthan the recruitment was for the post of Constables under the Rajasthan Police Subordinate Service Rules, 1989. Various circulars had been issued by the State Government from time to time. 36.2 The Division Bench of the Rajasthan High Court allowed the plea of the reserved category candidates to the extent that after despite getting relaxation of age if they were higher in the merit than the general open category vacancies they could migrate to the general open category vacancies. However, if they had availed relaxation/concessions while participating in the competitive test/ process of selection they would not be eligible for said migration. 36.3 The Supreme Court referred to circulars issued by the Rajasthan Government from time to time and noticed that in 6.2 of a circular dated 24th WP (C) 1350/2017 Page 18 of 24 June, 2008 there is an express bar as under: “6.2 In the state, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.” 36.4 Following the decision in Deepa E.V. the Supreme Court held that there could be no migration in the above circumstances permitted for those SC candidates to the unreserved vacancies. 37.1 Turning now to the decisions relied upon by the

... Petitioner

s in Jitendra Kumar Singh v. State of U.P competitive examination was held for filling up the post of Sub-Inspectors of Civil Police and Platoon Commanders in PAC by direct recruitment. For SC, ST & OBC candidates there was waiver of examination fee and relaxation in the upper age limit which was in terms of Section 8(1) of the UP Public Services (Reservation for Scheduled Caste, Scheduled Tribes and other Backward Classes) Act, 1994. 37.2 Section 3(6) of the above Act provided that if a reserved candidate got selected on the basis of a merit in an open competition with general candidates he would not be adjusted against vacancies reserved for the reserved category. 37.3 Government instructions dated 25th March, 1994 provided that if a reserved category candidate were selected on the basis of merit in the open competition along with general category candidates he would not be adjusted towards reserved category i.e. he would be deemed to have been WP (C) 1350/2017 Page 19 of 24 adjusted against the unreserved vacancies. This was irrespective of whether he had availed of any facility or relaxation (like relaxation age limit). 37.4 The Appellants who were general candidates contended that reserved category candidates should not be adjusted against the unreserved (UR) vacancies but only against the reserved vacancies. This was not accepted by the High Court. The decision of the High Court was affirmed by the Supreme Court. It was clarified as under: “71. We are of the considered opinion that the concessions falling within Section 8 of the Act of 1994 cannot be said to be relaxations in the standard prescribed for qualifying in the written examination. Section 8 clearly provides that the State Government may provide for concessions in respect of fees in the competitive examination or interview and relaxation in upper age limit.

72. Soon after the enforcement of the 1994 Act the 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:

'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 vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age-limit) available to reserved category.” From the above, it becomes quite apparent that the relaxation in age-limit is merely to enable the reserved category candidate to compete with the general category candidate, all other all other things being equal. The State has not treated the relaxation in WP (C) 1350/2017 Page 20 of 24 age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. main written test followed by interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that government orders in force on the commencement of the Act in respect of the concession 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.” 37.5 It was further held: eligibility “75. In our opinion, the relaxation in age does not in any manner upset the 'level playing field'. It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16 (1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfil the age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open competition.” conditions, namely, qualifications, 38. In the present case also merely because the

... Petitioner

s have availed of relaxation as far as chest measurement and height measurement are WP (C) 1350/2017 Page 21 of 24 concerned, or even age it would not deprived them of being considered for appointment against unreserved vacancies if they have secured higher marks in the written exam than the cut off for unreserved vacancies. 39.1 In Vikas Sankhala v. Vikas Kumar Agarwal the issue arose in the context of appointment of teaching staff through the Teachers Eligibility Test conducted by the State of Rajasthan. There was relaxation of 10% in the minimum pass marks in the TET to the extent of 10% to persons belonging to SC, ST and OBC belonged by the age category. 39.2 One of the issues considered by the Supreme Court was “38.3 (iii) Whether reserved category candidates, who secured better in recruitment examination, can be denied migration to general seats on the basis that they had availed relaxation in TET.?.” than general category candidates 39.3 In answering the said question in negative the Supreme Court referred to the circulars issued by the Government State Government from time to time and the decision in Jitendra Kumar Singh v. State of U.P (supra). It was noted that the mere fact that some relaxation was given in the pass marks in the TET did not give any advantage to the reserve category candidate as it only enabled them to compete with others by allowing them to participate in the selection process. Therefore, in terms of the circular dated 11th May, 2011 issued by the Government in that case “the reserve category candidates, who secured more marks than the marks obtained by the last candidate selected in general category would be entitled to be considered against unreserved category vacancies.” It was subject to the WP (C) 1350/2017 Page 22 of 24 condition that “these candidates have not availed any other concession in terms of number of attendance etc. except fee and age”.

40. It is therefore seen that each case turned on the peculiar facts and the conditions as specified in the recruitment notices, the prevailing statute and the circulars issued from time to time. It is seen that both in Deepa E.V. and Gaurav Pradhan there were specific instructions which barred the consideration of the reserved category candidates against UR vacancies whereas in Jitendra Kumar Singh and Vikas Sankhala they permitted accommodating the reserved category candidates against UR vacancies if they bettered the UR cut off marks.

41. In the present case, by virtue of Standing Order No.78 dated 1st February, 2008 and in particular para 14(b) thereof candidates from the SC, ST and OBC candidates who secure higher marks than the last candidate in the general list can be selected against the UR vacancies. Therefore, in the present case, the ground on which the

... Petitioner

s were kept out of the merit list by the

... RESPONDENTS

is contrary to the legal position explained in the above decisions in Jitendra Kumar Singh and Vikas Sankhala and in particular it is contrary to para 14(b) of Standing Order No.78. As rightly pointed out by the

... Petitioner

s Standing Order No.85 dated 5th March, 2009 relied upon by the

... RESPONDENTS

does not apply in the instant case and therefore will not come in the way of the

... Petitioner

s, who have been recruited as ancillary staff in particularly trades in the RPF from securing the appointments. WP (C) 1350/2017 Page 23 of 24 42. It would be recalled that by the order dated 15th February, 2017 while issuing notice in the petition the Court made it clear that “all actions taken by the Respondent will abide by the result of the writ petition.” The

... RESPONDENTS

have through their various affidavits confirmed that vacancies are available to be filled up. The vacancies are sufficient in number to accommodate the 50

... Petitioner

s who still remain to be appointed after excluding

... Petitioner

s No.10, 21, 39, 53 and 55 who have already been selected as noted in the order dated 26th July, 2018.

43. The remaining

... Petitioner

s will accordingly now be issued letters of appointment within a period of four weeks from today in terms of the present judgement. While they were not entitled to any arrears of pay, their seniority will count along with their batchmates. For the purposes of further promotions, fixation of pay etc. such notional date of fixation of seniority will apply.

44. The petition is accordingly allowed. S. MURALIDHAR, J.

SANJEEV NARULA, J.

MARCH29 2019 mw WP (C) 1350/2017 Page 24 of 24