DEEPA E.V. Vs. UNION OF INDIA AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 3609 of 2017, Judgment Date: Apr 06, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3609 OF 2017
DEEPA E.V. APPELLANT(S)
VERSUS
UNION OF INDIA AND ORS. RESPONDENT(S)
J U D G M E N T
R. BANUMATHI, J.
1. This appeal arises out of the judgment of the Kerala High Court in
Writ Appeal No.827 of 2015 dated 20.07.2015 whereby the Division Bench
affirmed the order passed by the learned Single Judge.
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 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.
3. Insofar as the general category is concerned, no candidate has
secured the minimum cut off marks i.e. 70 marks. Stating that the
appellant has to be accommodated in the general category, she filed a Writ
Petition before the High Court, which the learned Single Judge dismissed by
judgment dated 16.1.2015. Being aggrieved, the appellant challenged the
same in Writ Appeal No.827 of 2015, which came to be dismissed, which is
impugned in this appeal.
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. Rule 9 reads as under:-
“9. Saving:
Nothing in these rules affect reservations, relaxation of age limit
and other concessions required to be provided for the Scheduled Caste,
Scheduled Tribes and other special categories of persons in accordance with
the orders issued by the Central Government from time to time in this
regard.”
6. Department of Personnel and Training had issued proceedings O.M.
No.36012/13/88-Estt. (SCT), dated 22.5.1989 and OM No.36011/1/98-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 SC/ST/OBC candidates. The
proceedings reads as under:-
“G.I. Dept. of Per. & Trg., O.M. No. 36012/13/88-Estt. (SCT), dated
22.5.1989 and OM No.36011/1/98-Estt. (Res.), dated 1.7.1998
“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.
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 Scheduled Castes and Scheduled Tribes by
direct recruitment. The practice presently 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 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.
2. It has now been decided that in cases of direct recruitment to
vacancies in posts under the Central Government, the SC and ST candidates
who are selected on their own merit, without relaxed standards along with
candidates belonging to the other communities, will not be adjusted against
the reserved share of vacancies. The reserved vacancies will be 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 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 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 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.
2. The above OM and the O.M. No.36012/2/96-Estt.(Res.), dated 2.7.1997
provide that in cases of direct recruitment, the SC/ST/OBC 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
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
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., the SC/ST/OBC candidates are to be counted against reserved
vacancies. Such candidates would be deemed as unavailable for
consideration against unreserved vacancies.”
(Underlining added)
7. On a combined reading of Rule 9 of the Export Inspection Agency
(Recruitment) Rules, 1980 and also the proceedings dated 1.7.1998, we find
that there is an express bar for the candidates belonging to SC/ST/OBC who
have availed relaxation for being considered for General Category
candidates.
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 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 General Category. In 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 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 Jitendra Kumar Singh (supra) are in the context
of 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 down in various judgments as
noticed above. In 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 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 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 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, 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
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.”
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.
11. Be it noted, in the instant case, the appellant has not challenged
the constitutional validity of the proceedings dated 1.7.1998 read with
Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980. On a
perusal of the prayer made in the writ petition we find that the appellant
has only sought for a declaration that Exhibit P5 (proceedings dated
1.7.1998) is not binding on the appellant. 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.
12. We do not find any merit in this appeal, which is, accordingly,
dismissed.
13. Pending applications, if any, shall stand disposed of.
14. There shall be no orders as to costs.
.......................J.
[R. BANUMATHI]
.......................J.
[A.M. KHANWILKAR]
NEW DELHI;
APRIL 06, 2017.
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