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2010 DIGILAW 1136 (RAJ)

Mangla Ram Bishnoi v. State of Rajasthan

2010-06-30

SANGEET LODHA

body2010
Hon'ble LODHA, J.—These writ petitions involving common questions of law and facts were heard together for final disposal at the admission stage, with the consent of the learned counsel appearing for the parties and are being decided by this common judgment. 2. The petitioners belonging to Other Backward Classes (OBC) are aggrieved by the action of the respondents in denying appointment to the OBC candidates on the post of Sub Inspector under the provisions of Rajasthan Police Subordinate Service Rules, 1989 (in short "the Rules of 1989") in the general/open category though they have secured more marks than the last candidate selected in general category, solely on the ground that they have availed the benefit of relaxation in upper age limit extended to the candidates belonging to OBC category under Rule 11 of the Rules of 1989 and therefore, they are not entitled to compete with the general category candidates against the unreserved seats. 3. The factual matrix of the case lies in narrow compass. The Rajasthan Public Service Commission (RPSC) issued an advertisement dated 9.4.07 for conducting the combined competitive examination, 2007 for selection to the post of Sub Inspector Police (AP); Platoon Commander (Sub Inspector RAC) and Sub Inspector Police (MBC). The particulars of the 244 posts advertised and category wise allocation thereof are as under:- S. No. Name of Post Total Num-berof posts Reserved Post General Scheduled Caste Scheduled Tribe O.B.C. Gen-eral Wo-man Gen-eral Wo-man Gen-eral Wo-man Gen-eral Wo-man 1. Sub-Inspector Police (A.P.) 151 55 23 17 7 13 5 22 9 2. Platoon Comm-ander (Sub-Inspec-tor (R.A.C.) 87 33 13 10 3 3 3 13 5 3. Sub-Inspector Police (M.B.C.) 6 4 1 - - - - 1 - 4. The petitioners possessing requisite qualification applied for selection to the posts advertised in the OBC category, while availing the benefit of relaxation in age provided for OBC Male candidates under Rule 11 of the Rules of 1989. 5. The examination for selection to the posts were conducted in three phases. In the first phase, the candidates were required to appear in the written examinations. The persons declared successful in the written examinations were subjected to physical efficiency test and finally the persons qualifying the physical efficiency test were invited for personality and viva voce examinations. 6. 5. The examination for selection to the posts were conducted in three phases. In the first phase, the candidates were required to appear in the written examinations. The persons declared successful in the written examinations were subjected to physical efficiency test and finally the persons qualifying the physical efficiency test were invited for personality and viva voce examinations. 6. The petitioners qualified the written examinations and also passed the physical efficiency test and therefore, they were called for personality and viva voce examinations. After completion of the process of selection, the result was declared by the RPSC on 26.3.09. According to the placement of the petitioners in the merit list declared, they were entitled to be appointed on the post, however, they were not called for medical examination. On enquiry being made, the petitioners came to know that OBC Male candidates who were at Sr. Nos. 1, 3, 4 to 9, 12 to 17, 21, 23, 27, 32, 33, 37, 38, 40, 42,44, 45, 51 to 54, 57 to 59, 61, 65, 67 and 69 in the common merit list and much higher in the merit than the other candidates in general category have been placed in the OBC category and thus, 36 seats of OBC candidates were filled from among those candidates who were entitled to be appointed in the general category according to their placement in the merit list. It was further revealed that the respondent RPSC had taken a decision not to include candidates belonging to OBC category in the general category though they have secured higher merits in the general/open category list, for the reason that they had availed the benefit of age relaxation meant for OBC Male candidates under the Rule 11 of the Rules of 1989. Hence, these writ petitions. 7. A reply to the show cause notice has been filed on behalf of the respondent Nos. Hence, these writ petitions. 7. A reply to the show cause notice has been filed on behalf of the respondent Nos. 1 to 4 (RPSC and the State) in Mangla Ram's case (S.B.C. Writ Petition No. 8023/09) stating that the candidates belonging to OBC category who have not taken the advantage of age relaxation and are within the age limit i.e. 25 years prescribed for general category candidates and upto 28 years after three years age relaxation available to government servants, are entitled to be appointed according to their own merit against the unreserved posts and therefore, they have been selected and recommended for appointment to the posts belonging to the general category. It is stated that the persons who have availed the age relaxation available to the OBC category under the Rules of 1989 have been put in the list of OBC category though, they stand higher in the merit list of general/open category. Thus, precisely the stand of the respondents is that the persons who have availed the benefit of relaxation of age and applied for appointment to the post in the OBC category are entitled to be appointed against the posts reserved for their own category and cannot be permitted to compete with the candidates belonging to the general/open category for which they were ineligible to compete on account of the age bar. In other words, according to the respondents the candidates belonging to the reserved category who have not entered into the competitive examinations with the same eligibility as prescribed for general/open category are not entitled to be included in the merit list of the candidates belonging to general/open category. 8. However, it is not disputed that if the successful candidates belonging to OBC category who have not been included in the general/open merit list despite their securing higher merits, on account of availing the benefit of age relaxation are included in the general/open merit list then, all the petitioners herein shall be entitled to be appointed on the post of Sub Inspector against the posts belonging to OBC category, on account of seats being vacated in OBC category. 9. 9. An application (M.A. No. 39172/09) was preferred in Mangla Ram's case (writ petition No. 8023/09) on behalf of Shri Sunil Sharma & 19 other candidates selected for appointment on the posts in general category for impleading them as party respondents in the writ petition which was allowed by this Court, vide order dated 10.11.09 and the applicants were impleaded as party respondents No. 5 to 24 in the matter. 10. A reply to the writ petition has also been filed on behalf of the respondent No. 5 to 24 stating that the petitioners were not eligible to appear for selection for general category inasmuch as, they were over age in that category and therefore, having applied for recruitment on the posts in the OBC category after availing the special concession of age relaxation, they cannot claim consideration of their cases for appointment in general category. It is submitted that the OBC candidates who have not availed the benefit of age relaxation have been counted against general category vacancies and thus, the select list prepared by the RPSC is in conformity with circular dated 4.3.02 issued by the State Government. 11. Learned counsel for the petitions Mr. S.P.Sharma contended that the merit of an individual cannot be denied on account of his being in the reserved category. Relying upon the decision of the Hon'ble Supreme Court in the case of "R.K. Sabarwal vs. State of Punjab", (1995) 2 SCC, 745, learned counsel contended that a candidate who secures a place in the merit list on the basis of his own merit has to be given the benefits of his merit. It is submitted that Rule 11 which prescribes different age limit for the candidates belonging to the general category and reserved categories cannot be termed as "relaxation in age" in the strict sense inasmuch as, the power of the State Government to grant relaxation inter alia in respect of the age is dealt with by Rule 46 of the Rules of 1989 and exercising the power thereunder, the State Government can grant benefit of age relaxation to the candidates belonging to any category. Learned counsel submitted that by Rajasthan Various Service (Fourth Amendment) Rules, 2008, a proviso has been added to the relevant rule in the various Service Rules in terms that if a candidate would have been entitled in respect of his/her age for direct recruitment in any year in which no such recruitment was held, he/she shall be deemed to be eligible in next following recruitment, if he/she is not overage by more than 3 years. Accordingly, it is submitted by the learned counsel that the age relaxation granted to the different categories for different reasons does not affect the merit of the individual appearing in the selection. Learned counsel submitted that the alleged relaxation of age granted to the reserved category candidates is only a relaxation granted in respect of the eligibility criteria and it has nothing to do with the competitive assessment of the merits of the candidates belonging to the different categories. It is submitted that at the time when concessions are availed, the competition did not commence. It is submitted that competition for selection shall commence only when different categories of the candidates fulfilling the eligibility conditions appear for the written examination. It is submitted that while granting the age relaxation, the reserved category candidates are merely brought within the zone of consideration so as to enable them to participate in open competition on merit. Relying upon the decision of the Hon'ble Supreme Court in the matter of "Jitendra Kumar Singh & Anr. vs. State of Uttar Pradesh & Ors." (2010) 3 SCC 119 and decisions of this Court in the matter of "Chandrabhan Yadav vs. State of Rajasthan" (2009) 2 WLC (Raj.), 454 and in "Sheikh Mohammed Afzal & Anr. vs. State of Rajasthan", (2008) 1 WLC (Raj.) 186, learned counsel urged that the question arising for consideration of this Court in the present writ petitions is no more res integra. It is submitted that in Jitendra Kumar's case (supra),the Hon'ble Supreme Court has categorically held that the relaxation in age availed by a reserved category candidates has no relevance to the determination of inter se merit on the basis of the final written test and interview. It is submitted that in Jitendra Kumar's case (supra),the Hon'ble Supreme Court has categorically held that the relaxation in age availed by a reserved category candidates has no relevance to the determination of inter se merit on the basis of the final written test and interview. It is submitted that the relaxation of age does not give any advantage to the reserved category candidates in the selection process and therefore, they cannot be deprived of an opportunity to compete against the general category candidates on that count. 12. Learned counsel Mr. Anoop Dhand appearing for the petitioners while adopting the arguments advanced by learned counsel Mr. S.P. Sharma further submitted that the age relaxation in no manner can be treated to be the relaxation in merit and does not affect the efficiency of service and therefore, all the candidates who have appeared in the examination without any relaxation in the standard of merit have to be treated at par and therefore, the petitioners and their likes cannot be deprived of their claim to compete with the general category candidates merely because they have been extended benefit of age relaxation in terms of Rule 11 of the Rules of 1989. In support of his contentions, apart from the decisions cited by the learned counsel Mr. S.P. Sharma, Mr. Anoop Dhand, learned counsel has relied upon yet another decision of this Court in the matter of "Dalchand Sain vs.State", 2009 WLC (Raj.) UC, 582. 13. Per contra, Mr. S.N. Kumawat, learned Additional Advocate General reiterating the stand taken by the State and RPSC in the reply to the show cause notice referred above, submitted that the relaxation in the eligibility/criteria in respect of the age is not independent of reservation of posts. Learned Additional Advocate General submitted that if the candidates belonging to reserved category have applied after availing the relaxation in age for the posts belonging to the reserved category then, they cannot be permitted subsequently to contend that they have right to compete with the general category candidates on the basis of their merit. In support of his contention, learned Additional Advocate General has relied upon decisions of the Hon'ble Supreme Court in the matters of "Union of India vs.Satya Prakash & Ors.", (2006) 4 SCC, 550, "Union of India vs. Ramesh Ram & Ors.", (2009) 6 SCC 619 and "Union of India & Ors. In support of his contention, learned Additional Advocate General has relied upon decisions of the Hon'ble Supreme Court in the matters of "Union of India vs.Satya Prakash & Ors.", (2006) 4 SCC, 550, "Union of India vs. Ramesh Ram & Ors.", (2009) 6 SCC 619 and "Union of India & Ors. vs. Dalbir Singh & Anr.", (2009) 7 SCC 251 and a Larger Bench decision of this Court in Sheikh Mohammed Afzal's case (supra). It is submitted that but for the age relaxation the candidates who have been accorded appointment in the OBC category notwithstanding that they have secured higher marks than the last person appointed in the general category, would not have been eligible to participate in the selection process and therefore, the claim of such candidates for appointment on the post shall stand restricted to the posts reserved for that category only. Replying to the arguments of the learned counsels for the petitioners that the controversy involved in these writ petitions is covered by the decision of the Hon'ble Supreme Court in Jitendra Kumar Singh's case (supra), learned Additional Advocate General submitted that the law laid down therein is per incurium inasmuch as, while deciding the controversy the earlier decisions of the Hon'ble Supreme Court on the identical issue in Satya Prakash's case (supra), Ramesh Ram's case (supra) and Dalbir Singh's case (supra), have not been taken note of. It is submitted by learned Additional Advocate General that the select list prepared is in conformity with the circular dated 4.3.02 issued by the State Government regarding the treatment to be given to the candidates belonging to OBC/Scheduled Caste/Scheduled Tribes who are selected against general category vacancies on the basis of their merit. Lastly, it is submitted by the learned Additional Advocate General that in pursuance of the impugned selection, the selected candidates have already been accorded appointment and therefore, the relief prayed for by the petitioners cannot be granted in absence of the persons selected and appointed inasmuch as, their rights are bound to be adversely affected if the relief prayed for is granted in favour of the petitioners. 14. Mr. 14. Mr. Prahlad Singh, learned counsel appearing for the private respondents while reiterating the stand taken in the reply to the writ petition filed on their behalf and adopting the arguments advanced by learned Additional Advocate General submitted that the persons who have been accorded appointment in the OBC category despite securing higher place in the general merit have appeared in the examination only on account of age relaxation granted and therefore, they cannot claim consideration of their case for appointment against the unreserved seat for which they were not even eligible to compete. Learned counsel submitted that out of 89 general Male candidates selected, 49 candidates belong to OBC category who have not availed the benefit of relaxation of age. It is further submitted that the candidates belonging to OBC category who have been left out from being included in the general merit list though, they have secured higher marks than the last candidate selected in the general category are those candidates who did not fulfill the eligibility criteria laid down for general category candidates to participate in the selection process, which is in conformity with the circular dated 4.3.02 issued by the State Government. It is submitted that but for the benefit of age relaxation availed, the petitioners and their likes were not entitled to appear for selection to the post and therefore, they can claim right to consideration for appointment only against the post reserved for OBC category. Accordingly, it is submitted that the decision of the RPSC not to include the names of the candidates belonging to OBC category standing higher in merits in the select list of general category cannot be faulted with. 15. I have considered the rival submissions, perused the material on record and carefully gone through the various precedents cited at the bar. 16. It is a common ground between the parties that the reserved category candidates selected in the open competition field on the basis of their own merit without availing any relaxation available for the reserved category shall be considered to be selected in the general/open category and their number shall not be against the quota reserved for respective reserved category. 17. It is a common ground between the parties that the reserved category candidates selected in the open competition field on the basis of their own merit without availing any relaxation available for the reserved category shall be considered to be selected in the general/open category and their number shall not be against the quota reserved for respective reserved category. 17. Indisputably, in the instant selection, the candidates belonging to OBC category who have not availed the benefit of age relaxation entitled to be appointed according to their own merit against the unreserved seats, have been selected and recommended for appointment to the posts belonging to general/open category, however, 36 candidates belonging to the OBC category who have secured higher marks than the last candidate appointed in general/open category have not been treated to be selected for unreserved posts meant for general/open category and have been treated to be selected against the OBC category inasmuch as, they have availed the benefit of age relaxation available to the OBC category. 18. In view of the admitted legal and factual position noticed above, the only question arises for consideration before this court is that: "whether a candidate belonging to the reserved category who has availed the relaxation of age meant for reserved category candidates but in all other respect has competed with the general category candidates and stand higher in the merit than the last general category candidate selected can be deprived of the selection and appointment on the post against an unreserved seat meant for general category?" 19. It is well settled that Article 16(4) is enabling provision and confers discretionary power on the State to make reservation of the posts or appointments in the service of the State. It is equally well settled that the whole basis of reservation under Article 16(4) of the Constitution of India is to be provide additional protection to the members of backward classes and the concept of reservation therein is wide enough to include incidental and ancillary provisions which are necessary for upliftment of backward classes, in consistent with Article 335 of the Constitution of India. While dealing with the scope of reservation in terms of Article 16(4) of the Constitution of India, the Hon'ble Apex Court in the matter of Indra Sawhney vs. Union of India, 1992 Supp. (3) SCC, 217, observed: "743. While dealing with the scope of reservation in terms of Article 16(4) of the Constitution of India, the Hon'ble Apex Court in the matter of Indra Sawhney vs. Union of India, 1992 Supp. (3) SCC, 217, observed: "743. The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression `reservation'. Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are `any provision for the reservation of appointments or posts.' The question is whether the said words contemplates only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exception are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservation takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration- the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e. to ensure that the members of the served class fully avail of the provision for reservation in their favour...In our opinion, therefore, where the State finds it necessary for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under clause (4) itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under clause (4) itself. In this sense, clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of "the backward class of citizens." Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of clause (4) of Article 16." 20. In Ram Bhagwat Singh vs. State of Haryana, (1997) 11 SCC, 417, the Hon'ble Supreme Court while dealing with the question regarding lower standard of eligibility for SC/ST or Backward classes, observed: "4. We are of the opinion that equality of opportunity should be striven for and ensured in public employment. Steps should be taken to see where unequals are competing, so that unequals compete in terms of equality with others in respect of jobs and employments of the State. Our Constitution so enjoins it. Article 38 of the Constitution read with Articles 14, 15 and 16 so mandates it. In order, therefore, to give those who are unequals, and it is accepted that Scheduled Castes and Scheduled Tribes for reasons historical or otherwise, are unequal with the general members of the community in respect of ability and qualification for public employment. Hence, in order to make the unequals compete on conditions of equality certain relaxations and other factors ensuring equality and imperative. Those groups or segments of terms of society which are by reasons of history or otherwise unable to compete in terms of absolute equality with the members of other communities or groups in the society, should be ensured and assured changes of competing in terms of equality. They must be helped to compete equally but it is important to emphasise that equality of opportunity is sought to be achieved for the public services or employment. The efficacy and efficiency of that service is of prime consideration. Equality must be there for all to compete for the public services. They must be helped to compete equally but it is important to emphasise that equality of opportunity is sought to be achieved for the public services or employment. The efficacy and efficiency of that service is of prime consideration. Equality must be there for all to compete for the public services. Public services and public employment do not exist for providing jobs in terms of equality or otherwise to all. Public services and public employment must serve only public purpose and anything that hampers or impairs the efficiency or efficacy of public services cannot and should not be permitted in ensuring conditions of constitutional equality. These should be done objectively, rationally and reasonably. As is often said, it may be that need to ensure equality for Scheduled Castes and Scheduled Tribes should not be surrendered on the facile and value-based perception of efficiency. Yet efficiency must be ensured. Real equality must be accorded." 21. In Jitendra Kumar Singh's case (supra), the Hon'ble Supreme Court observed that "Reservation are mode to achieve the equality of opportunity granted under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to reserved category candidates to enable them to compete and seek benefit of reservation is only an aid to reservation." 22. Thus, undoubtedly, clause (4) of Article 16 empowers the State to provide for such exemptions/concessions/relaxations for backward classes which are ancillary/incidental to reservation. Further, such exemptions/ concessions relaxations may be provided for by the State irrespective of the fact as to whether there exists the reservation of posts for such socially and educationally backwards classes or not. If the concession/relaxation provided for to the reserved category only bring the candidates belonging to that category at par with the other candidates facing the selections without affecting the efficiency or efficacy of the public services and the concession/ relaxation provided in no manner can be categorised as relaxed standard of merits then, they cannot be deprived of opportunity to compete with the open/general candidates against the unreserved seats only on the ground that they have availed the benefit of concession/relaxation. But in case the candidates belonging to the reserved category apply for the recruitment against the posts against that category by resorting to relaxed standard of merits then the question may arise as to whether they can at all be permitted to compete with the general/open category candidates. 23. But in case the candidates belonging to the reserved category apply for the recruitment against the posts against that category by resorting to relaxed standard of merits then the question may arise as to whether they can at all be permitted to compete with the general/open category candidates. 23. In this view of the matter, the question which survives for consideration of this court is as to whether the relaxation of age provided for by the State to the reserved category falls within the definition of "relaxed standard of merit" affecting the efficiency or efficacy of public service? 24. Indisputably, the procedure for selection to the posts of Sub Inspector Police (AP); Platoon Commander (Sub Inspector RAC) and Sub Inspector Police (MBC) is governed by the Rules of 1989. Rule 11(1) of the Rules of 1989 deals with the eligibility of age for the different categories of candidates. The minimum age for recruitment has been provided as 21 years and maximum 33 years as on cut off date i.e. first day of January next following the last date fixed for receipt of the applications for the selection. Proviso (i) to (xiv) to Rule 11(1) provides for relaxation in age for various categories of candidates including OBC. To be specific, it provides 5 years relaxation in the case of male candidates belonging to Scheduled Castes, Scheduled Tribes, OBCs and woman candidates belonging to general category and 10 years relaxation in case of woman candidates belonging to SC, ST and OBC. It further provides that the upper age limit for Ex-defence personnel and Reservists i.e. the defence personnels who are transferred to the reserved shall be 40 years. The person serving in connection with the affairs of the State in substantive capacity and the dependents of police officers/officials filled in discharge of their duties have been extended relaxation of age upto 3 years. Suffice it to say that under the Rules of 1989, besides the SC/ST/OBC category, the benefit of relaxation in upper age limit has been provided for other categories as well. 25. Suffice it to say that under the Rules of 1989, besides the SC/ST/OBC category, the benefit of relaxation in upper age limit has been provided for other categories as well. 25. It is not disputed before this Court by the learned counsel appearing for the respondents that the persons belonging to the different categories availing the relaxation of age other than those belong to SC/ST/OBC category, are permitted to compete with the general category candidates notwithstanding the fact that no reservation of post is provided for those categories except in case of woman where horizontal reservation is provided for. Obviously, the respondents cannot contend that the relaxation in the age in the case of SC/ST/OBC amounts to "relaxed standard of merit" and for others it does not affect the "standard of merit" at all. It is pertinent to note that the State Government has relaxed the maximum age by 3 years for all those candidates who were eligible in respect of his/her age for direct recruitment in any year in which no such recruitment was held and accordingly, subject to the maximum relaxation of 3 years, they have been deemed to be eligible to appear in the next following recruitment. Suffice it to say that even under the scheme of the Rules as framed which governs the selection to the post in question, the age relaxation only makes a candidate eligible to appear in the selection who is otherwise not eligible in respect of the age and it cannot be construed to be "relaxed standard of merit." Thus, the contention of the learned counsel appearing for the respondents that the relaxation in eligibility of criteria in respect of the age is not independent of the reservation of posts and the candidates who have applied for the posts after availing the relaxation in age for the posts belonging to the reserved category then they a have no right to compete with the general category candidates, is devoid of any merit. 26. 26. As a matter of fact, in considered opinion of this Court; the controversy raised in the present writ petitions stand squarely covered by the decision of the Hon'ble Supreme Court in Jitendra Kumar's case (supra) wherein a decision of the Division Bench of Hon'ble Allahabad High Court inter alia holding that a candidates of reserved category though has availed relaxation meant for reserved category candidates, namely, of fee and age but in all other respect, in the selection test, has competed with general category candidates cannot be deprived of his right to be considered against the unreserved seat was under challenge. The Hon'ble Supreme Court after anaylizing its earlier decisions and considering the relaxation in age provided for on the anvil of Article 16(1) and 16(4) of the Constitution of India held: "48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list. 49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantage of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates. ..... xxx... The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates. ..... xxx... xxx 74. It is not disputed before us that relaxation in age, is not only given to members of the Scheduled Castes, Scheduled Tribes, and OBCs, but also the dependents of freedom fighters. Such age relaxation is also given to ex-servicemen to the extent of service rendered in the army, plus three years. In fact, the educational qualifications in the case of ex-servicemen is only intermediate or equivalent whereas for the general category candidates it is graduation. It is also accepted before us that ex-servicemen compete not only in their own category, but also with the general category candidates. No grievance has been made by any of the appellant-petitioners with regard to the age relaxation granted to the ex-servicemen. Similarly, the dependents of freedom fighters are also free to compete in the general category. Therefore, we do not find much substance in age "queers the pitch" in favour of the reserved category at the expense of the general category. 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 competitive 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 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 participated in the open competition." 27. 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 participated in the open competition." 27. A similar controversy arose before this Court in Chandra Bhan's case (supra) in respect of the recruitment on the post of Teacher Gr. II (Mathematics). The Court after due consideration of the various decisions of the Hon'ble Supreme Court including the decisions in Indra Sawhney's case and R.K. Sabarwal's case (supra) observed: "10. Fallacy of this argument would get exposed on deeper analysis. Significant question which in the facts and circumstances of the present case has arisen is whether the candidate who secured the age relaxation and thereby acquired the eligibility to appear in the competitive examination, can be, in the face of the settled proposition of law referred to in the preceding paras, treated to have been selected in reserved category and not in the open/general category in spite of the fact that he has secured more marks than the last candidate selected in the open/general category. The respondent-RPSC has proceeded on the assumption that since these candidates availed f the benefit of age relaxation and it is only because of such age relaxation that such that they have become eligible to appear in the competitive examinations, they cannot be treated to have been selected in open/general category. In other words, what contend is that if such 13 candidates were not granted age relaxation, they could not appear in the competitive examination and there was no question of their being selected in the open/general category. All the aforesaid judgments, starting from Indra Sawhney onwards, refer to the merit position of such candidates and therefore what is to be seen is whether relaxation in age can be treated as enabling such candidates to qualify the competitive examination of relaxed standards of merit. But then, age and for that matter, the relaxation in the upper age limit, does not have anything to do with the merit of a candidate. While a younger candidate may acquire a much higher position in the merit, an elder candidate need not necessarily figure so high in the merit. But then, age and for that matter, the relaxation in the upper age limit, does not have anything to do with the merit of a candidate. While a younger candidate may acquire a much higher position in the merit, an elder candidate need not necessarily figure so high in the merit. It is the younger ones who after steal a march over the elders when it comes to achieving merit position in a competitive examination. Age has thus got no co-relation with the merit of a given candidate. While age is essential component of eligibility of the candidate of the candidate enabling him to appear for the competitive examination as per the rules, merit is the standard by which the efficiency level of such candidate is judged vis-a-vis other candidates appearing in the same competitive examination. Age therefore cannot be confused with the merit of a candidate." 28. Thus, it stands well settled that the relaxation in age to the reserved category in no manner can be treated to be "relaxed standard of merits". It being relaxation pertaining to eligibility of a candidate to appear in the competitive examination and since the competition does not commence at the time when the concessions are availed, by such relaxation reserved candidates are merely brought within the zone of consideration so as to enable them to participate in open competition on merits. In any case, the benefit of relaxation in upper age limit extended to the candidates belonging to socially or educationally backward classes has nothing to do with the reservation of the posts provided for them as such. 29. It is not in dispute that the candidates belonging to the reserved category who have availed the benefit of age relaxation have competed with the open/general candidates at all the three stages of the competition i.e. written examinations, physical efficiency test and viva voce examination without availing any further relaxation in the standard of merit. Thus, keeping in view the authoritative pronouncement of the Hon'ble Supreme Court in Jitendra Kumar Singh's case (supra), there remains no doubt that the persons belonging to the reserved category are entitled to compete with the open/general candidates on the basis of their own merit notwithstanding the fact that they have availed the benefit of age relaxation meant for reserved category. 30. 30. At this stage, it would be appropriate to consider the argument advanced by the learned Additional Advocate General that the decision of the Hon'ble Supreme Court in Jitendra Kumar's case runs contrary to the decision of the Hon'ble Supreme Court in Satya Prakash's case, Ramesh Ram's case and Dalbir Singh's case (supra) and therefore, the law laid down is per inqurium and cannot operate as binding precedent. 31. In Satya Prakash's case (supra), the question which came for consideration of the Hon'ble Apex Court was as to whether those OBC candidates who were selected on merits and were placed in the list of open category candidates could still for the purpose of placement be considered to be OBC candidates thereby exhausting the quota reserved for relaxed OBC candidates from allocation of service. After due consideration, the Apex Court opined: "19. In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to the relaxed standard. 20. If a candidate of the Scheduled Caste, the Scheduled Tribe and Other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she can opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preference." 32. Thus, in the said decision, the Hon'ble Supreme Court has recognized the right of the OBC category candidates recommended for appointment without resorting to the relaxed standard to exercise the option of preference for services from the reserved category. Thus, in the said decision, the Hon'ble Supreme Court has recognized the right of the OBC category candidates recommended for appointment without resorting to the relaxed standard to exercise the option of preference for services from the reserved category. The said decision in no manner can be said to be a precedent on the issue involved in the present writ petitions in as much, as, it is not a case of the right to exercise option for preference of the services amongst the candidates of the reserved category recommended for appointment without resorting to the relaxed standard and the candidates belonging to the reserved category recommended after availing the benefit of relaxed standard. Moreover, the relaxation of age is not considered to be the relaxation in standard of merits therefore, for this reason also the ratio decidendi of Satya Prakash's case (supra) has no bearing on the issue involved in the present writ petitions. 33. In Ramesh Ram's case (supra), again the question for consideration of the Hon'ble Supreme Court was as to whether reserved category candidates i.e. OBC/SC/ST who are selected on merit and placed in the list of general/unreserved category candidates could be considered as reserved category candidates at the time of "service allocation". After considering its various decisions including the decision in Satya Prakash's case (supra) keeping in view the amended rule 16 of Civil Services Examination Rules, opined that an authoritative pronouncement is needed in light of various decisions and accordingly, referred the matter to a constitution Bench. 34. Coming to the decision of the Hon'ble Supreme Court in Dalbir Singh's case (supra), the question came for consideration before the Hon'ble Supreme Court was as to whether a candidate who had not applied for general category can be selected and appointed under that category. The Hon'ble Supreme Court opined: "13. From the pleadings it appears to us that the appellants had prepared two sets of lists. The first one being the list of those candidates who had staked their claim in the general merit and the second list contains those candidates who had opted for consideration of their case under OBC category. The respondent at no point of time had taken exception to the procedure adopted by the appellants in preparing the select list. The first one being the list of those candidates who had staked their claim in the general merit and the second list contains those candidates who had opted for consideration of their case under OBC category. The respondent at no point of time had taken exception to the procedure adopted by the appellants in preparing the select list. In our opinion, having opted to consider his case only under OBC category, he cannot thereafter claim but his case requires to be considered in the general merit, only because he has scored better percentage of marks than the last selected candidate in the general merit." 35. It is settled law that a decision is an authority for the question of law determined having regard to fact situation obtaining therein. It cannot be said to be a precedent for a point which was never canvassed and considered therein. Any observation made by the court on the point which was never raised before the court or perceived and determined by the court consciously cannot form part of the ratio decidendi of the case and precedent sub silentio cannot be termed as binding precedent. The point in issue in the instant case has not even been referred much less considered by the Hon'ble Supreme Court in the earlier decisions relied upon by the learned Additional Advocate General. To the contrary, the decision of the Hon'ble Supreme Court in Jitendra Kumar's case (supra) and decision of this Court in Chandra Bhan Yadav's (supra) and decision of this Court in Chandra Bhan Yadav's case (supra) relied upon by the learned counsel for the petitioners squarely cover the controversy involved in the instant cases. 36. There is yet another aspect of the matter. It is to be noticed that it is not the case of the respondents that the applications were invited category wise and the persons who have applied in the reserved category are considered for selection and appointment against the posts belonging to that category only. To the contrary even according to the respondents the persons belonging to the OBC category who did not avail the benefit of the relaxation of age, according to their own merits have been selected in open/general category against the unreserved seats. To the contrary even according to the respondents the persons belonging to the OBC category who did not avail the benefit of the relaxation of age, according to their own merits have been selected in open/general category against the unreserved seats. Therefore, the question of restricting the consideration of the candidature of the candidates belonging to the reserved category against the posts reserved for the respective reserved category on the ground that they have mentioned in the form submitted that they belong to reserved category so that they may avail the benefit of reservation simply does not arise. Even otherwise, in considered opinion of this court, any other view taken shall run contrary to the decisions of the Hon'ble Supreme Court in Indra Sawhney's case (supra), R.K. Sabarwal's case (supra) and Jitendra Kumar's case (supra). 37. Coming to the circular dated 4.3.02 issued by the State Government which provides that if a candidates belonging to OBC/SC/ST has not availed any special concessions which are available to the candidates belonging to these category except the concession of fees and he secures more marks than the marks obtained by the last general category candidate who is selected, such a candidates belonging to OBC/SC/ST shall be counted against the general category vacancies and not the vacancies reserved for the OBC/SC/ST, as the case may be. To say the least, aforesaid circular issued by the State Government to the extent it provides that only those OBC/SC candidates who have obtained more marks than the last general candidate and not availed any of the special concession which are available to candidates belonging to these categories except the concession of fees only shall be counted selected against general category vacancies runs contrary to the law laid down by this court and the Hon'ble Supreme Court as discussed above and therefore, does not remain operative to the extent that it excludes the consideration of the OBC category candidates who have secured higher marks than the last general category candidates only on the ground that they have availed the benefit of age relaxation under the relevant service rules. In considered opinion of this court, alike the concession of fee, relaxation of age shall also stand excluded within the meaning of "special concession" envisaged under clause (a) of the said circular. 38. In considered opinion of this court, alike the concession of fee, relaxation of age shall also stand excluded within the meaning of "special concession" envisaged under clause (a) of the said circular. 38. The objection raised by the learned Additional Advocate General that in absence of the persons selected and appointed, the relief prayed for by the petitioners cannot be granted, is also devoid of any merit. It is to be noticed that in the first instance, in Mangla Ram's case (Writ Petition No. 8023/09) while issuing show cause notice to the respondents by way of interim order dated 13.7.09, the respondents were restrained from making appointments on the post of Sub Inspector (Police) in pursuance of selection in question. Thereafter, as noticed above on an application being preferred on behalf of some of the persons selected for appointment on the post in general category, vide order dated 10.11.09, they were impleaded as party respondents in the matter. Further, on application being preferred on behalf of the respondents, the interim order granted as aforesaid in Mangla Ram's case was modified by this Court vide order dated 11.12.09 and it was ordered that three posts of Sub Inspector (Police) shall be kept vacant for the petitioners therein till the disposal of the writ petition. Similar orders were passed by this court in all the writ petitions except in writ petition No. 14714/09. Moreover, all appointments made during the pendency of the writ petitions are even otherwise subject to the decision of these writ petitions and therefore, the question of denying the relief to the petitioners as prayed for on the ground that all the candidates selected and appointed in general category are likely to be affected by the decision of these writ petitions have not been impleaded as party respondents in the matter, does not arise. 39. 39. In view of the discussion above, this court is firmly of the opinion that the candidates belonging to the reserved category who have availed the benefit of relaxation of age meant for reserved category candidates but in all other respect, have competed with the general category candidates and stand higher in the merit than the last candidate selected in general category cannot be deprived of selection and appointment on the post against unreserved seats meant for general/open category and therefore, after reshuffling of the merits by shifting such reserved category candidates who are entitled to be appointed against the unreserved posts, if the petitioners stand in merit in OBC category then, they cannot be deprived f the appointment. 40. In the result, the writ petitions succeed, the same are hereby allowed. The action of the respondents in denying 36 candidates belonging to OBC category, the selection and appointment on the posts against unreserved seats in general/open category on the ground that they have availed the benefit of relaxation of age meant for OBC category is declared illegal and unconstitutional. The respondents are directed to consider the candidature of the petitioners afresh and if after reshuffling the merits by inclusion of names of those 36 candidates selected in OBC category in the list of open/general category, the petitioners are found entitled to be appointed as per their merit in the OBC category then, they shall be provided appointment on the posts of Sub Inspector Police (AP); Platoon Commander (Sub Inspector RAC) or Sub Inspector Police (MBC), as the case may be with effect from the date the last candidate in the OBC category or in absence thereof in general category was appointed. The petitioners shall be entitled to notional benefits for intervening period including the benefits of seniority, increment etc. The entire exercise for providing appointments to the petitioners, if they are found entitled to be appointed shall be completed expeditiously in any case, within a period of three months from the date f this order. No order as to costs.