Candidate availing relaxations under 'Reserve Category' cannot be appointed under General Category

(A) Dated: APRIL 06, 2017: The Supreme Court of India:

A candidate for an employment post, who applied under OBC category by availing of age relaxation and also attended the interview under OBC category, cannot claim right to be appointed under general category.

Thus such Candidates under reserve category:

• Will get employment under reservation quota only.

• If seats under reservation quota are not available such candidates from reservation category will not be appointed under General Category quota.

• Will not get employment under General Category even if he/she has secured higher marks than candidates qualifying under General Category.

(B) Dated: 08th January, 2010: 

Earlier the Apex Court had decided the question in the context of applying the reservation and observed as under and this precedent was followed in many judgments, that:

"At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participated 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."

Supreme Court of India
Jitendra Kumar Singh & Anr vs State Of U.P.& Ors on 8 January, 2010
Bench: Tarun Chatterjee, Surinder Singh Nijjar

(C)  Dated: 13th January, 2011: 

"1. By means of the impugned order the petitioner, who belongs to OBC, and was selected for class IV post in Adarsh Krishi Inter College, Saraul, District Aligarh, has been declined approval on the ground that the vacancy was unreserved and was also advertised as unreserved vacancy, yet the petitioner, who belongs to OBC, has been selected, which is not permissible in law. 

7. In view of above exposition of law and the fact that the petitioner merely for the reason that he belongs to OBC candidate could not have been held to be disqualified for applying to selection of class IV post available for general category candidate, the order in question, in my view, cannot sustain.” 

HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 26, Case :- WRIT - A No. - 50204 of 2008 

Petitioner:- Satendra Singh Respondent :- State Of U.P. & Others
Hon'ble Sudhir Agarwal,J.
Order Date:- 13.1.2011 

(D) Dated: 03rd June, 2011: 

"Having regard to the statutory provisions and ratio of various judgments noticed herein above, following principles emerge:-

(i) Reserved category candidates who secured higher merit in the process of selection for appointment are to be considered for appointment against general category vacancies notwithstanding the fact that they have applied under the reserved categories and the resultant slot under the reserved category will be occupied by the reserved category candidates next in the order of merit.

(ii) Above principle is, however, applicable at the time of making appointment on completion of the selection process.

(iii) Principle at point (i) will have not application at the stage of qualifying examination, short listing or screening test.”

Punjab-Haryana High Court
Cwp No. 1023 Of 2011 Date Of ... vs Punjab Public Service Commission ... on 3 June, 2011

(E) By a single judge's order it was decided that: 

Meritorious reserve category candidates (MRC) should be put in general category in the merit list that was prepared by Gujarat Public Service Commission (GPSC) that had finalized a merit list without taking those MRCs who had obtained age relaxation in general category.

Dated: 23th September, 2013: Gujarat High Court: 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11996 of 2012
With CIVIL APPLICATION NO. 9047 of 2013
In SPECIAL CIVIL APPLICATION NO. 11996 of 2012

Dated: 11th November, 2015: Gujarat High Court:  

A division bench headed by Justice M R Shah quashed the single judge's order and held that those meritorious reserve category candidates (MRCs), who have scored more than cut off marks for general category, cannot be put in general category list, if they have obtained age relaxation in the upper age limit.

The state government and GPSC had challenged the single judge decision on several counts including that once the reserve category candidate obtains benefit of age relaxation offered only those who fall in reserved quota, he/she cannot take benefit of shifting to general category even if he/she is MRC.

The authorities also contended that other candidates who were to get affected due to court order had not been heard by the HC before deciding the case. This was against the principle of natural justice and therefore also the earlier order should be quashed.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1480 of 2013

In SPECIAL CIVIL APPLICATION NO. 11996 of 2012
With LETTERS PATENT APPEAL NO. 1298 of 2013
In SPECIAL CIVIL APPLICATION NO. 11996 of 2012
Sd/(M.R.SHAH, J.)
Sd/(G.R.UDHWANI, J.)

(F) The candidate DEEPA E.V. AGED 31 YEARS: had applied for the post of laboratory assistant grade-II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India. She secured 82 marks in the list of candidates from OBC category, but one Ms. Serena Joseph (OBC), who secured 93 marks, was selected and appointed.
But no candidate from the general category secured the minimum cut-off marks i.e. 70 marks. 
Her demand to be appointed under General Category quota was declined by the Ministry.

Dated: 20th JULY 2015: 
Her pleas claiming accommodation in the general category were dismissed by the Kerala High Court.

"In view of the foregoing discussions, we are of the view that no error has been committed by the learned Single Judge in dismissing the Writ Petition filed by the appellant. The appellant was clearly not entitled to be considered against the general vacancy, she having appeared in selection after taking relaxation in upper age limit. We do not find any substance in the submissions made by learned counsel for the appellant. The Writ Appeal is dismissed.” 

IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 827 of 2015 () IN WP(C).14500/2012
AGAINST THE ORDER/JUDGMENT IN WP(C) 14500/2012 of HIGH COURT OF
KERALA DATED 16-01-2015

(G) These orders were assailed before the apex court....

Dated: 18th November, 2016

ORDER

The learned counsel for the petitioner has placed reliance on the judgment of this Court in Jitendra Kumar Singh & Anr. Vs. State of U.p. & Ors., reported in (2010) 3 SCC 119, so as to contend that the petitioner could not have been debarred from consideration against a general category, on the basis of paragraph 2(i) of O.M. dated 1st July, 1998.
Delay condoned.

SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)No........../2016 (CC No.19461/2016)
(Arising out of impugned final judgment and order dated 20/07/2015 in WA No.827/2015 passed by the High Court Of Kerala At Ernakulam)

DEEPA E.V. VERSUS UNION OF INDIA AND ORS.

CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MRS. JUSTICE R. BANUMATHI

• Dated: 06th April,2017: Supreme Court of India:

The Apex Court bench comprising Justice R Banumathi and Justice AM Khanwilkar held that there is an express bar for the candidates belonging to SC/ST/OBC category, who have availed of relaxation for being considered for general category candidates.

The court also noted that the appellant had not challenged the constitutional validity of the proceedings dated 1.7.1998, read with Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980, and NO argument was canvassed challenging the constitutional validity of the proceedings before the learned Single Judge or before the Division Bench of the High Court.

The court also said, in Jitendra Kumar Singh and Another vs State of Uttar Pradesh, facts were different in as much as there is no express bar in the said UP Act for the candidates of SC/ST/OBC category being considered for the posts under general category.

2. The appellant belongs to Dheevara community which is one of the "Other Backward Class”. Since the appellant 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 OBC category). One Ms. Serena Joseph (OBC), who secured 93 marks was selected and appointed.

4. The appellant, who has applied under OBC Category by availing age relaxation and also attending the interview under the 'OBC Category' cannot claim right to be appointed under the General Category.

5. The recruitment by the Export Inspection Council of India which is functioning under the Ministry of Commerce, Government of India is governed by the Export Inspection Agency (Recruitment) Rules, 1980. As per Rule 9, the Rules regarding relaxation of age limits and other concessions are to be governed by the Rules and also the orders issued by the Central Government from time to time in this regard.

10. Having regard to the observations in paragraphs 65 and 72, in our view, the principles laid down in Jitendra 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 scheme.

12. We do not find any merit in this appeal, which is, accordingly, dismissed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION: CIVIL APPEAL NO.3609 OF 2017
DEEPA E.V. VERSUS UNION OF INDIA AND ORS.

.......................J.
[R. BANUMATHI]

.......................J.
[A.M. KHANWILKAR]

NEW DELHI;
APRIL 06, 2017.