NIRAVKUMAR DILIPBHAI MAKWANA versus GUJARAT PUBLIC SERVICE COMMISSION & ORS.

NIRAVKUMAR DILIPBHAI MAKWANA

GUJARAT PUBLIC SERVICE COMMISSION & ORS.

(Civil Appeal No. 5185 of 2019)

JULY 04, 2019

[S. ABDUL NAZEER AND INDIRA BANERJEE, JJ.]

Service Law:

Selection – Of candidate who availed age relaxation as areserved category candidate – Whether has to be under reservedcategory or can be accommodated in or migrated to generalcategory seat – Held: Art. 16(4) of the Constitution empowers theState to provide reservation in appointments – It is discretion of theState to formulate policy as to manner and extent to whichreservation is provided – Such policy has to be spelled out from theorders issued by the Government – In the present case such policyhas been framed by the State by Circulars dated 21.01.2000 and23.07.2004 – In view of these Circulars, if relaxed standard isapplied in selecting candidate for SC/ST, SEBC category, thencandidate of such category selected in such manner shall have tobe considered only against the reserved post and would be deemedunavailable for consideration against unreserved post – Constitutionof India – Art. 16 (4) – Gujarat Civil Services Classification andRecruitment (General) Rules, 1967 – r. 8.

Dismissing the appeal, the Court

HELD: 1. The State Government, in exercise of its powersconferred under Article 309 of the Constitution of India madeGujarat Civil Services Classification and Recruitment (General)Rules, 1967 vide notification dated 10.10.1967. As per sub-rule(2) of Rule 8, the appointing authority has been given powers torelax age limit in favour of the candidates belonging to SC/STand SEBC and in favour of women candidates to the extentindicated therein. The Ministry of Personnel, Public Grievancesand Pensions vide Office Memorandum dated 22.05.1989formulated policy in tune with Article 16(4) of the Constitutionof India, which enables the State Government to provide for

[2019] 9 S.C.R.

Areservation for the category of persons belonging to backwardclasses. Thereafter, the Ministry of Personnel, Public Grievancesand Pensions vide Office Memorandum dated 01.07.1998 clarifiedthe earlier O.M dated 22.05.1989. In the meantime, the StateGovernment in its General Administration Department videGovernment Resolution dated 11.12.1986 formulated policyBwhereby such appointments on merit of the members belongingto such castes and tribes shall in no way affect claims of themembers of such castes and tribes for appointment in the servicesor on the post reserved for them under the Government ordersissued from time to time. The State Government vide CircularCNo.PVS-1099-MVN-13-G-4 dated 29.01.2000 clarified that areserved category candidate, if has not availed of any relaxationviz. age limit, experience, qualification, number of chances toappear in the examination, the said candidate will be adjusted inthe open category and in case the candidate has availed any ofthe aforesaid relaxation, he/she will have to be adjusted againstDthe reserved seats. The State Government came out with afurther clarification vide Circular No.PVS-102003-900-G-4 dated23.07.2004. [Paras 15, 16 and 17] [54-C-H; 55-A-B, E]

2. Thus, the appointments in the category of SC/ST andother backward classes to the post of class I and class III in theEState Services are being governed by the aforesaid policies andthe State Government and/or any Authorities effecting directappointments are required to give effect to the aforesaid policydecision at the time of recruitment process viz. preparing theselect list etc. It is evident from the above two circulars that aFcandidate who has availed of age relaxation in the selectionprocess as result of belonging to reserved category cannot,thereafter, seek to be accommodated in or migrated to the generalcategory seats. [Paras 18 and 19] [56-A-B]

3. In the advertisement published by the Gujarat Public

GService Commission (GPSC) GPSC inviting applications from theeligible candidates for the post of ACF (Class II) and RFO (ClassII) dated 01.03.2010, upper age limit relaxation was granted tothe candidates belonging to SC/ST and SEBC category. It wasalso specifically stated in the advertisement that if any candidate

belonging to reserved category who applies in the open category,such candidate would not get the benefit of age relaxation. Suchage relaxation was granted in pursuance to Rule 8 of Rules of1967. [Para 23] [56-G-H]

4. Article 16(4) of the Constitution is an enabling provisionempowering the State to make any provision or reservation ofappointments or posts in favour of any backward class of citizenswhich in the opinion of the State is not adequately represented inthe service under the State. It is purely matter of discretion ofthe State Government to formulate policy for concession,exemption, preference or relaxation either conditionally orunconditionally in favour of the backward classes of citizens. Thereservation being the enabling provision, the manner and theextent to which reservation is provided has to be spelled outfrom the orders issued by the Government from time to time.[Para 24] [57-E-F]

5. In the instant case, State Government has framed policyfor grant of reservation in favour of SC/ST and OBC by theCirculars dated 21.01.2000 and 23.07.2004. The StateGovernment has clarified that when relaxed standard is appliedin selecting candidate for SC/ST, SEBC category in the agelimit, experience, qualification, permitting number of chances inthe written examination etc., then candidate of such categoryselected in the said manner, shall have to be considered onlyagainst his/her reserved post. Such candidate would be deemedas unavailable for consideration against unreserved post.[Para 25] [57-G-H]

6. It is also not correct that relaxation in age at the initialqualifying stage would not fall foul of the circulars dated 29.01.2000and 23.07.2004. The distinction sought to be drawn between thepreliminary and final examination is totally misconceived. It isevident from the advertisement that person who avails of anage relaxation at the initial stage will necessarily avail of the samerelaxation even at the final stage. The age relaxation granted tothe candidates belonging to SC/ST and SEBC category in theinstant case is an incident of reservation under Article 16(4) ofthe Constitution of India. [Para 36] [60-E-F]

ADeepa E.V. v. Union of India and Ors. (2017) 12 SCC680; Gaurav Pradhan and Ors. etc. etc. v. State ofRajasthan and Ors. etc. etc. (2018) 11 SCC 352 :[2017] 8 SCR 951 – relied on.

Jitendra Kumar Singh and Anr. v. State of Uttar PradeshBand Ors. (2010) 3 SCC 119 : [2010] 1 SCR 325 ;Ajithkumar P. and Ors. v. Remin K.R. and Ors. (2015)16 SCC 778;Vikas Sankhala and Ors. v. Vikas KumarAgarwal and Ors. (2017) 1 SCC 350 : [2016] 7 SCR639 – distinguished.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5185of 2019

From the Judgment and Order dated 15.03.2017 of the High Courtof Gujarat at Ahmedabad in Letters Patent Appeal No. 1103 of 2015 inSpecial Civil Application No. 1100 of 2015

V. K. Garg, Sr. Adv., O. P. Bhadani, S. S. Pandey, Ms. NupoorDubey, Ms. Rashmi Atrey, Advs. for the Appellant.

Preetesh Kapur, Sr. Adv., Ms.Hemantika Wahi, Ms. Jesal, Advs.for the Respondents.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J.

G1. Leave granted.

2. The question for consideration in this appeal is whether acandidate who has availed of an age relaxation in selection process asa result of belonging to reserved category, can thereafter seek to beaccommodated in/or migrated to the general category seat?

3. Brief facts of the case which are necessary for deciding thisappeal are:-

4. Gujarat Public Service Commission (for short ‘GPSC’) hadissued an advertisement dated 01.03.2010 and corrigendum thereafterfor 47 posts of Assistant Conservator of Forests (for short ‘ACF’) (Class-II) and 120 posts of Range Forest Officer (for short ‘RFO’) (Class-II).As per the said advertisement and corrigendum, total 84 posts were tobe filled in from unreserved (general category) candidates. Out of thesaid 84 posts, 26 posts were reserved for women candidates, 48 postswere to be filled in from socially and economically backward classes(for short ‘SEBC’) category candidates. Out of 48 posts for SEBCcategory candidates, 18 posts were reserved for women candidates, 9posts were to be filled in from Scheduled Caste (for short ‘SC’) categorycandidates, out of which 2 posts were reserved for women candidates.Similarly, 26 posts were to be filled in from Scheduled Tribe (for short‘ST’) category candidates, out of which 8 posts were reserved for womencandidates. It was also stipulated in the advertisement that 25% of thevacancies shall, as far as practicable, be filled up by appointing candidateswho possess BSc degree with Forestry as the principal subject. GPSChad stipulated in the advertisement that the candidates should submittheir on-line applications from 01.03.2010 to 06.04.2010. The detailsabout the educational qualifications, age, mode of examination as wellas the steps to submit the application have been narrated in theadvertisement.

5. GPSC conducted preliminary test on 30.05.2010 and mainwritten examination was held from 27.05.2013 to 02.06.2013. The resultof the main written examination was declared on 21.05.2014. 505candidates who cleared the main written examination were called forphysical measurement test. Personal interviews were conducted from16.06.2014 to 31.07.2014.

6. The appellant submitted an application in the category of SEBC.He successfully passed the examination conducted by GPSC. In the listof selected candidates published on 25.09.2014, he was shown at serialno.138.

7. It is the case of the appellant that while preparing the merit list,GPSC has ignored the judgment of this Court in Jitendra Kumar Singhand Anr. v. State of Uttar Pradesh and Ors.,2010 (3) SCC 119.

ATherefore, the appellant filed Special Civil Application No. 1100 of 1015before the learned Single Judge of the High Court of Gujarat challengingcorrectness of the aforesaid select list.

8. The learned Single Judge by his order dated 11.06.2015 allowedthe application in the following terms:

“The action of considering the meritorious reserved categorycandidates (who secured their position in general/open categoryon account of their performance) in their respective reservedcategory only because they availed benefit of “concession” whichcannot be considered as “relaxation in merits” also set aside sinceCit is found to be contrary to the decision of Hon’ble Apex Court inthe case of Jitendra Kumar Singh (supra).”

9. Being aggrieved and dissatisfied with the order of the learnedSingle Judge, GPSC filed Letters Patent Appeal praying for setting asideof the order passed by the learned Single Judge. The Division Bench ofDthe High Court by order dated 15.03.2017 has allowed the appeal andset aside the order of the learned Single Judge as under:

“Keeping in view the decisions rendered by the Hon’ble SupremeCourt as well as this Court discussed hereinabove and in view ofthe discussion made by us in the aforesaid paragraphs, we are ofthe opinion that the State of Gujarat has framed the reservationpolicy by Government Resolution dated 11.2.1986 and circularsdated 29.1.2000 and 23.7.2004 as well as in view of the statutoryprovisions i.e. Recruitment Rules of 1967, Rules of 2007, 2008and 2009, we hold that all those candidates belonging to reservedcategory, if they avail the benefit of age relaxation, the same is tobe considered as relaxation in the standard and therefore suchcandidates who got the benefit of age relaxation are not entitledto be considered in general category and their cases are requiredto be considered for reserved category cases only. Thus, thedecision rendered by the Hon’ble Supreme Court in the case ofJitendra Kumar Singh (supra) would not be applicable to the factsof the present case and the relaxation of age in view of the policyof the State Government can be said to be relaxation in standardand the same cannot be considered to be concession. We answerthe question posed for consideration accordingly.”

10. In this appeal, the appellant has challenged the legality andcorrectness of the aforesaid order of the Division Bench of the HighCourt.

11. We have heard Mr. V.K. Garg, learned senior counsel for theappellant and Mr. Preetesh Kapur, learned senior counsel for therespondents.

12. Mr. Garg submits that the relaxation/concession in age grantedto the candidates at the initial stage only to enable candidate belongingto the reserved category without granting him/her any preferentialadvantage in the matter of selection cannot be treated as an incident ofreservation under Article 16(4) of the Constitution of India. The Circularsdated 29.01.2000 and 23.07.2004 issued by the Government of Gujaratclearly show concession in age in the matter of selection to postwhich cannot be treated as an incident of reservation. Therefore,relaxation in age at the initial qualifying stage would not fall foul of thesecirculars. Rule 4 of the ACF/RFO Competitive Examination Rules, 2008read with the schedule, clearly stipulates that preliminary test is merelyto declare candidate qualified for appearing in the written examination.Examination and interview performance alone would be the criteria forhis/her selection for the appointment to the post. Therefore, relaxationat the stage of preliminary test would not amount to grant of benefit ofreservation for selection. It is argued that Section 8 of the U.P. PublicServices (Reservation for Scheduled Castes and Scheduled Tribes) Act,1994 is identically worded as circulars dated 29.01.2000 and 23.07.2004in the State of Gujarat. Therefore, the ratio in Jitendra Kumar Singh(supra) shall be squarely applicable to the facts of the present case too.He has also relied on the judgments of this Court in Ajithkumar P. andOrs. v. Remin K.R. and Ors.,2015 (16) SCC 778 and Vikas Sankhalaand Ors. v. Vikas Kumar Agarwal and Ors.,2017 (1) SCC 350,insupport of his submission.

13. On the other hand, Mr. Preetesh Kapur, learned senior counselsubmits that candidate who has availed of an age relaxation in theselection process as result of belonging to reserved category cannot,thereafter, seek to be accommodated in general category seats. In thisconnection he has drawn our attention to the Circulars dated 29.01.2000and 23.07.2004. It is further submitted that judgment of this Court inJitendra Kumar Singh (supra) has no application to the facts of this

Acase. The decision was rendered in the context of policy adopted by theState of U.P. In support of his submissions, he has relied on the judgmentsof this Court in Deepa E.V. v. Union of India and Ors., 2017 (12)SCC 680,and Gaurav Pradhan and Ors. etc. etc. v. State of Rajasthanand Ors. etc. etc.,2018 (11) SCC 352. It is argued that the relaxationin age granted at the initial stage in the instant case, is necessarily anBincident of reservation under Article 16(4) of the Constitution of India.

14. We have carefully considered the submissions of the learnedsenior counsel made at the Bar and perused the materials placed onrecord. For deciding the issue involved in this appeal, certain importantaspects are required to be considered.C

15. The State Government, in exercise of its powers conferredunder Article 309 of the Constitution of India made Gujarat Civil ServicesClassification and Recruitment (General) Rules, 1967 (Rules of 1967)vide notification dated 10.10.1967. As per sub-rule (2) of Rule 8, theappointing authority has been given powers to relax age limit in favourDof the candidates belonging to SC/ST and SEBC and in favour of womencandidates to the extent indicated therein. The Ministry of Personnel,Public Grievances and Pensions vide Office Memorandum dated22.05.1989 formulated policy in tune with Article 16(4) of the Constitutionof India, which enables the State Government to provide for reservationEfor the category of persons belonging to backward classes. Thereafter,the Ministry of Personnel, Public Grievances and Pensions vide OfficeMemorandum dated 01.07.1998 clarified the earlier O.M dated22.05.1989.

16. In the meantime, the State Government in its GeneralFAdministration Department vide Government Resolution dated 11.12.1986formulated policy to the effect that the members belonging to the SCand ST categories who are selected for appointment by direct selectionto any service or post included in the State Services or in the SubordinateServices on the basis of their merits, shall be considered for appointmenton unreserved posts, which are filled in on merit along with other generalGcategory members. As per the said Government Resolution dated11.12.1986, such appointments on merit of the members belonging tosuch castes and tribes shall in no way affect claims of the members ofsuch castes and tribes for appointment in the services or on the postreserved for them under the Government orders issued from time totime. The State Government vide Circular No.PVS-1099-MVN-13-G-4H

dated 29.01.2000 clarified that reserved category candidate, if has notavailed of any relaxation viz. age limit, experience, qualification, numberof chances to appear in the examination, the said candidate will beadjusted in the open category and in case the candidate has availed anyof the aforesaid relaxation, he/she will have to be adjusted against thereserved seats. This circular reads as under:

“….After careful and mature consideration in this regard, it isclarified that only those Scheduled Castes, Scheduled Tribes andSocially and Educationally Backward Classes candidates who areselected on the same standards as applied to the general categorycandidates, shall be counted/adjusted against unreserved postsand not against the reserved posts. When relaxed standard havebeen applied in selection of candidates belonging to ScheduledCastes, Scheduled Tribes and Socially and educationally BackwardClasses in terms of the age limit, experience, qualification,permitted number of chances in written examination, extendedzone of consideration larger than what is provided for generalcategory, etc., then the Scheduled Castes, Scheduled Tribes andSocially and Educationally Backward Classes candidates selectedunder such arrangement shall be counted against the reservedposts. Such candidates would be deemed as unavailable forconsideration against unreserved posts.”

17. The State Government came out with further clarificationvide Circular No.PVS-102003-900-G-4 dated 23.07.2004. In this circular,it was clarified as under:

“….After careful consideration of Government in this regard, it isclarified that candidates belonging to Scheduled Caste/ ScheduledTribe/ Socially and Educationally backward classes, who gotselected on merit through competitive examination without availingany relaxation in prescribed standards for eligibility shall not beadjusted against the reserved posts but candidate belonging to theScheduled Case/ Scheduled Tribe/ Socially and Educationallybackward classes who got selected by availing relaxation inqualifying marks in competitive written examination and personalinterview shall be counted against the reserved posts. However,reserved class candidates who have been granted exemption frompaying examination fee shall not be barred from competing for anunreserved vacant post.”

A18. Thus, the appointments in the category of SC/ST and otherbackward classes to the post of class I and class III in the State Servicesare being governed by the aforesaid policies and the State Governmentand/or any Authorities effecting direct appointments are required to giveeffect to the aforesaid policy decision at the time of recruitment processviz. preparing the select list etc.B

19. It is evident from the above two circulars that candidatewho has availed of age relaxation in the selection process as result ofbelonging to reserved category cannot, thereafter, seek to beaccommodated in or migrated to the general category seats.

C20. The State of Gujarat framed the rules for regulating therecruitment to the post of ACF in Gujarat Forest Services Class IIrecruitment Rules 2007.

“(i) The Assistant Conservator of Forests in the Gujarat ForestService, Class-II Recruitment Rules, 2007

D(ii) The Assistant Conservator of Forests in the Gujarat ForestService Class-II Recruitment (Amendment) Rules, 2008.

(iii) The Assistant Conservator of Forests in the Gujarat ForestService, Class-II Recruitment (Amendment) Rules, 2009.”

21. Similarly, the State of Gujarat has made the following rules forEregulating recruitment to the post of RFO Class II:

“(i) The Range Forest Officer, Class-II Recruitment Rules, 2008.(ii) The Range Forest Officer, Class-II Recruitment (Amendment)Rules, 2008.

(iii) The Range Forest Officer, Class-II Recruitment (Amendment)FRules, 2009.”

22. The State Government vide Notification dated 18.09.2008framed the Examination Rules of 2008.

23. In the advertisement published by the GPSC invitingapplications from the eligible candidates for the post of ACF (Class II)Gand RFO (Class II) dated 01.03.2010, upper age limit relaxation wasgranted to the candidates belonging to SC/ST and SEBC category. Itwas also specifically stated in the advertisement that if any candidatebelonging to reserved category who applies in the open category, suchcandidate would not get the benefit of age relaxation. Such age relaxationHwas granted in pursuance to Rule 8 of Rules of 1967.

“8. Condition as to prescribed qualifications:

1) xxxx

2) Where the prescribed qualification include qualification as toage limit the appointing authority may relax the age limit in favourof candidates belonging to the Scheduled Castes, Scheduled Tribesand Socially and Educationally Backward Class and in favour ofcandidate who are women to the following extent, that is to say:

(a) in the case of service or post in subordinate service or ofa State Service in respect of which the prescribed age limit doesnot exceed forty years, the age limit may be relaxed to the extentof five years.

(b) in the case of service or post in the State Service in respect ofwhich prescribed age limit exceeds forty years, the age limit maybe relaxed to the extent of maximum five years, so as to providethat upper age limit for entry in the service does not exceed fortyfive years.”

24. Article 16(4) of the Constitution is an enabling provisionempowering the State to make any provision or reservation ofappointments or posts in favour of any backward class of citizens whichin the opinion of the State is not adequately represented in the serviceunder the State. It is purely matter of discretion of the State Governmentto formulate policy for concession, exemption, preference or relaxationeither conditionally or unconditionally in favour of the backward classesof citizens. The reservation being the enabling provision, the mannerand the extent to which reservation is provided has to be spelled outfrom the orders issued by the Government from time to time.

25. In the instant case, State Government has framed policy forthe grant of reservation in favour of SC/ST and OBC by the Circularsdated 21.01.2000 and 23.07.2004. The State Government has clarifiedthat when relaxed standard is applied in selecting candidate for SC/ST, SEBC category in the age limit, experience, qualification, permittingnumber of chances in the written examination etc., then candidate ofsuch category selected in the said manner, shall have to be consideredonly against his/her reserved post. Such candidate would be deemedas unavailable for consideration against unreserved post.

A26. Now, let us consider the judgment in Jitendra Kumar Singh(supra). In this case, this Court was considering the interpretation ofSub-section (6) of Section 3 of U.P. Public Services (Reservation forScheduled Castes, Scheduled Tribes and Other Backward Classes) Act,1994 (for short “1994 Act”) and the Government Instructions dated25.03.1994. Sub-section (6) of Section 3 of this Act provided forBreservation in favour of Scheduled Castes, Scheduled Tribes and otherBackward Classes which is as under:

“(6) If person belonging to any categories mentioned in sub-section (1) gets selected on the basis of merit in an open competitionwith general candidates, he shall not be adjusted against theCvacancies reserved for such category under sub-section (1).”

27. The State of U.P. issued Instructions dated 25.03.1994 on thesubject of reservation for Scheduled Castes, Scheduled Tribes and OtherBackward Groups in the Uttar Pradesh Public Services. Last line ofthese instructions is as under:-D

“It shall be immaterial that he has availed any facility or relaxation(like relaxation in age-limit) available to reserved category.”

28. On consideration of sub-section (3) of Section 6 of the 1994Act and the Instructions dated 25.03.1994, this Court held that grant ofEage relaxation to reserved category candidate does not militate againsthim as general category candidate if he has obtained more marks thanany general category candidates. This judgment was based on thestatutory interpretation of 1994 Act and the Instructions dated 25.03.1994which is entirely different from the statutory scheme under considerationin the instant appeal. Hence, the principle laid down in Jitendra KumarFSingh (supra) has no application to the facts of the present case.

29. In Deepa (supra), the appellant had applied for the post ofLaboratory Assistant Grade II in Export Inspection Council of Indiafunctioning under the Ministry of Commerce and Industry, Governmentof India under OBC category by availing age relaxation. The DepartmentGof Personnel and Training had issued proceedings O.M. dated 22.05.1989laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the CentralGovernment and the reservation for Scheduled Castes, Scheduled Tribesand Other Backward Classes candidates. Paragraph 3 of the said O.M.is as under:H

“3. In this connection, it is clarified that only such SC/ST/OBCcandidates who are selected on the same standards as applied togeneral candidates shall not be adjusted against reservedvacancies.”

30. The judgment in Jitendra KumarSingh (supra), was pressedinto service in support of the contention that when relaxed standard isapplied in selecting Scheduled Castes, Scheduled Tribes and OtherBackward Classes candidates, the same cannot be treated as bar onsuch candidates for being considered for general category vacancies.This Court did not agree with the said proposition. It was held that JitendraKumarSingh (supra) was based on the statutory interpretation of theU.P. Act, 1994, and the GO dated 25.03.1994 which provides for anentirely different scheme. Therefore, the principles laid down in JitendraKumarSingh (supra) cannot be applied to the said case.

31. Similar question arose in Gaurav Pradhan (supra). In thiscase the Government had issued Circular dated 24.06.2008 which is asunder:

“Circular dated 24-6-2008

6.2. In the State, members of the SC/ST/OBC can compete againstnon-reserved vacancies and be counted against them, in case theyhave not taken any concession (like that of age, etc.) payment ofexamination fee in case of direct recruitment.”

32. Taking into consideration the above circular, this Court heldthat the ratio of the judgment in Jitendra KumarSingh (supra) has tobe read in the context of statutory provisions and the GO dated 25.03.1994and the said observation cannot be applied in case where theGovernment Orders are to the converse effect. It was held as under:

“32. We are of the view that the judgment of this Court in JitendraKumar Singh which was based on statutory scheme and theCircular dated 25-3-1994 has to be confined to scheme whichwas under consideration, statutory scheme and intention of theState Government as indicated from the said scheme cannot beextended to State where the State circulars are to the contraryespecially when there is no challenge before us to the conversescheme as delineated by the Circular dated 24-6-2008.”

A33. The judgments in Deepa (supra) and Gaurav Pradhan(supra) fully support the case of the respondents.

34. The judgment in Ajithkumar (supra) relied on by the learnedsenior counsel for the appellant has no application to the facts of theinstant appeal. In that case, this Court was not examining the effect ofBa statutory provision/circular granting age relaxation to the candidatesbelonging to the reserved category.

35. Similarly, in Vikas Sankhala (supra), relaxation of marks ofTET was allowed to different categories (under the orders of the StateGovernment dated 23.03.2011). After such relaxation, the reservedCcategory candidates were selected as having obtained more marks thanthe last general candidate and were included as general categorycandidates. The general category candidates contended that sincerelaxation was obtained prior to the circular dated 11.05.2011, reservedcategory candidates were not eligible to be included as general categorycandidates. This Court, after noticing the circulars issued from time toDtime, held that relaxation given in the marks in the TET examination wasnot part of the recruitment process. This judgment also does not assistthe appellant in any manner.

36. There is also no merit in the submission of the learned counselfor the appellant that relaxation in age at the initial qualifying stage wouldEnot fall foul of the circulars dated 29.01.2000 and 23.07.2004. Thedistinction sought to be drawn between the preliminary and finalexamination is totally misconceived. It is evident from the advertisementthat person who avails of an age relaxation at the initial stage willnecessarily avail of the same relaxation even at the final stage. We areFof the view that the age relaxation granted to the candidates belongingto SC/ST and SEBC category in the instant case is an incident ofreservation under Article 16(4) of the Constitution of India.

37. There is no merit in this appeal. It is accordingly dismissed.However, the parties are directed to bear their own costs.

Kalpana K. Tripathy

Appeal dismissed.