ORDER : Arun Bhansali, J. 1. These writ petitions have been filed by the petitioners questioning the legality and validity of the cut-off dated 01.06.2018 pertaining to the recruitment to the post of Teacher Gr. III (Level-I) for TSP area and seeking a direction to the respondents to prepare a revised cum fresh merit list while applying the proper reservation procedure according to the Notification dated 04.07.2016 as well as point No. 11 of the advertisement. 2. It is, inter-alia, indicated in the writ petitions that the respondents issued an advertisement No. 2/2018 dated 12.04.2018 for recruitment to the post of 5431 teachers Grade-III (Level-I) - General Education and 72 teachers Grade-III (Level-I) -Special Education for TSP area. The minimum qualification indicated was Senior Secondary with BSTC and having passed Rajasthan Eligibility Examination for Teachers ('REET')/RTET. 3. It is claimed that the petitioners having requisite qualification submitted their on-line application forms. A district and category-wise vacancy was also issued by the respondents, which has been placed on record as Annexure-2. It is submitted that after completing the process, the respondents issued the cut-off list on 01.06.2018 (Annex. 3), according to which, all the candidates, who had applied as TSP (General), TSP (SC) and TSP (ST) (widow and divorcee), got selected and the cut-off for male and female TSP (ST) was indicated as 51.33% marks. 4. It is, inter-alia, submitted by learned counsel for the petitioners that the manner and procedure adopted by the respondents for determining the merit of TSP (ST) category in issuing the cut-off date 01.06.2018 is highly arbitrary and against the settled procedure. 5. Submissions have been made that in all 5431 posts in the entire TSP area was advertised and the respondents have issued the list of selected candidates for only 4264 posts, resulting in 1167 posts still remaining vacant, regarding which the merit has not been prepared by the respondents. 6. Submissions have been made that the respondents have wrongly not considered the candidature of those candidates, who secured less than 60% marks in RTET/REET examination against the TSP(General) category, which is contrary to the stipulation indicated in the advertisement itself, whereby for candidates of Scheduled Tribe category of the scheduled area, the minimum requirement is 36% marks only and therefore, those candidates who got even less than 60% marks, upto 36% marks were entitled to be considered against the position of TSP (General) category. However, the respondents have wrongly confined the same to 60%, resulting in large number of posts remaining vacant in the category of TSP (General), inasmuch as, the respondents have not migrated the ST candidates, who have got less than 60% marks in RTET/REET from ST to General, which is wholly contrary to the entire scheme and various notifications issued in this regard and therefore, the respondents be directed to redraw the list by treating the candidates, who have got marks 36% and above as eligible to be considered against the category of TSP (General) as per their merit and the petitioners, who are low in merit qua the candidates selected under the TSP (ST) category be accorded appointment as per their merit either in TSP (General)/TSP(ST). 7. On notices being issued/the respondents having appeared on caveat, a reply to the writ petition has been filed by the respondents, inter-alia, indicating that the total of 5431 posts were advertised for TSP area, out of which 50% seats were kept for General category 50% seats for reserved category; whereafter, the merit list was prepared as per Clause 13 of the advertisement, which required the candidates, who possessed 60% marks in RTET/REET, however, the incumbents belonging to ST of scheduled area having 36% marks in RTET/REET were also eligible and therefore, the merit list/cut-off was prepared accordingly. 8. Submissions have been made that those belonging to TSP (ST) category, who have secured less than 60% marks in REET/RTET were considered against the vacancies reserved for ST category and the action of the respondents cannot be said to be in violation of the provisions in this regard. 9. Under the directions of the Court, the respondents have filed an additional affidavit, wherein, inter-alia, the following has been indicated:- "2. That in the present case, it is pertinent to mention there that the total of 1095 applications were received against the post of TSP General Category and as such, all of them are selected because the applications received were less than the total posts advertised for the TSP General Category and the cut off of the TSP General Category was 60% i.e. the minimum qualifications prescribed for the TSP General Candidates. Further, as much as, 589 candidates belonging to TSP ST Category, who are having more than 60% in REET/RTET are also selected against the posts of TSP General Category and other candidates of the TSP ST Category who are not having the cut off of the TSP General Category are not selected against the posts of TSP General Category. 3. That it is most respectfully submitted that the petitioners are the candidates who have submitted their applications form in TSP ST Category and are not having the cut off marks of general category i.e. 60% in the REET/RTET and as such their candidatures have not been considered for appointment on the post of Teacher Gr. III Level I vacancies of the TSP General Category. 4. That it is most respectfully submitted that the law in respect of the migration of reserved category candidates on unreserved posts is very well settled i.e. in case a reserved category candidate acquires more marks than the last cut off of the unreserved category than only he was allowed to migrate to the General Category and as such candidate shall be given appointment against the unreserved seat. Whereas, in the present case, the petitioners who have applied under TSP ST and admittedly they are not having the requisite 60% marks in REET/RTET fixed for the General Category candidates, their candidature could not be considered against the posts of unreserved posts. That the present petitioners who have applied from the TSP ST Category and were not selected in the at category because they does not fall within the cut off marks i.e. 51.33% and claimed appointment against the vacant posts of General Category and in the above said situation when the petitioners does not even fall within the cut off their own category they could not be allowed to migrate to the General Category, wherein the cut off is 60% and as such the present writ petition is baseless and frivolous." 10. Learned counsel for the petitioners made submissions in consonance with the averments made in the petitions. 11. Learned counsel for the respondents also made submissions emphasizing that as none of the candidates in TSP (ST) category have higher marks than the last selected candidate in TSP (General), there is no question of any migration in this regard and therefore, the plea raised by the petitioners in this regard cannot be countenanced. 12. 11. Learned counsel for the respondents also made submissions emphasizing that as none of the candidates in TSP (ST) category have higher marks than the last selected candidate in TSP (General), there is no question of any migration in this regard and therefore, the plea raised by the petitioners in this regard cannot be countenanced. 12. Reliance has been placed on Gaurav Pradhan & Ors. v. State of Rajasthan & Ors. : (2018) 11 SCC 352 , Deepa E.V. v. Union of India (2017) 12 SCC 680 , and Vikas Sankhala & Ors. v. Vikas Kumar Agarwal & Ors. : (2017) 1 SCC 350 . 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. The respondents vide advertisement dated 12.04.2018 advertised 5431 posts for Teacher Gr. III (Level-I) TSP area for General Education. The advertisement provided following general information:- ^^1- ÁkFkfed ,oa mPp ÁkFkfed fo|ky; v/;kid lh/kh HkrhZ&2018 ysoy&ÁFke dh ojh;rk lwph (Merit List) esa 'kkfey gksus ds fy, vH;FkhZ dks jktLFkku v/;kid ik=rk ijh{kk (RTET/REET) ds ysoy ÁFke esa U;wure 60 Áfr’kr mÙkh.kkZad (Minimum Passing Marks) vftZr djuk vfuok;Z gksxk] ijUrq jkT; ljdkj ds vf/klwpuk Øekad F.7(i)EE/Plan/2011 fnukad 29-08-2012 ds vuqlkj vf/klwfpr {ks=k sa (Scheduled Area’s) ds vuqlwfpr tutkfr ds vH;fFkZ;ksa ds fy;s U;wure 36 izfr’kr mÙkh.kkZad (Minimum Passing Marks) vfuok;Z gksxk] ijUrq vf/klwpuk tkjh gksus ls iwoZ vk;ksftr vkjVsV 2011 ds lEca/k esa mUgsa ;g NwV ns; ugha gksxhA** 15. In the above general information, it was specifically provided that in terms of Notification dated 29.08.2012, the candidates belonging to ST of scheduled area, the requirement of minimum passing marks in RTET/REET would be 36%, whereas the same would be 60% for other candidates. 16. The notification dated 29.08.2012, reads as under:- "In exercise of powers conferred under sub-paragraph (1) of Paragraph 5 of Fifth Schedule to the Constitution of India. I, Smt. Margret Alva, Governor of Rajasthan, hereby direct that sub-section (1) of section 23 of the Right of Children to Free and Compulsory Education Act, 2009 [Central Act No. 35 of 2009] shall apply to the Scheduled Areas with the modification that any person belonging to Scheduled Tribe of that Area shall be eligible for appointment as a teacher, same has obtained minimum 36% marks in the qualifying examination laid down under that sub-section. Marget Alva Governor of Rajasthan" 17. Marget Alva Governor of Rajasthan" 17. A perusal of the above notification would reveal that the same pertains to a direction issued by the Governor exercising powers under sub-paragraph (1) of Paragraph 5 of Fifth Schedule to the Constitution of India and provided for modification that any person belonging to ST of the scheduled area shall be eligible for appointment as a Teacher if he has obtained minimum 36% marks in the qualifying examination. 18. Sub-paragraph (1) of Paragraph 5 of the Fifth Schedule, reads as under:- "5. Law applicable to Scheduled Areas.- (1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect." 19. A perusal of the provisions of sub-paragraph (1) of Paragraph 5, Notification dated August 29, 2012 and the stipulation in the advertisement dated 12.04.2018 clearly indicates that the minimum requirement of marks under REET/RTET for ST candidates of Scheduled Areas has been modified from 60% to the extent of 36%. In fact, the same cannot even be termed as a relaxation having been accorded to the said ST candidates of Scheduled Areas. This aspect is further fortified from the fact that the requirement of having 60% marks in RTET has not been relaxed for any other category/candidate. 20. A perusal of the category-wise vacancies (Annex. 2) indicates that total posts meant for General category were 2721, 269 were reserved for SC category and 2441 were reserved for ST category. Out of the total 2721 posts meant for General category, the respondents have accorded appointment to only those candidates, who have 60% marks in REET/RTET and only those belonging to ST of scheduled area have also been permitted to migrate to the General category, who have more than 60% marks in REET/RTET, which number is indicated at 589 candidates. 21. It is not in dispute that after according the appointments under various categories, 1167 posts remain vacant, essentially, on account of the fact that the posts in TSP (General) have remained vacant. 22. 21. It is not in dispute that after according the appointments under various categories, 1167 posts remain vacant, essentially, on account of the fact that the posts in TSP (General) have remained vacant. 22. The case of the petitioners that the candidates, who have been selected against TSP (ST) have to migrate to the vacant positions in TSP (General), inasmuch as, merely because they have less than 60% marks in REET/RTET, they cannot be counted against the vacancies of TSP(ST) candidates and deprive the petitioners, who are lower in merit than the candidates, who have been granted appointment under the TSP (ST) category, but have minimum 36% marks in REET/RTET, as once the candidates, who are higher in merit migrate to TSP (General), the petitioners would be entitled to fill up those vacancies, has substance. 23. The plea which has been raised by the respondent-State, as noticed herein-before by way of additional affidavit, is that only those candidates can migrate to General category, who have higher marks than the last cut-off of the General category. The said submission made by the respondents is fallacious. In normal circumstances, wherein all the posts of General category are filled up, it is only those candidates, who are having higher marks in reserved category and who have not taken any benefit of relaxation can only migrate to the General category, however, present is a typical case, wherein large number of vacancies in TSP (General) are lying vacant and therefore, the principle sought to be applied that the candidate of reserved category must have higher marks than the cut-off of General category, cannot be applied in the present case. 24. As the qualification for ST of the scheduled areas stands amended on account of notification dated 29.08.2012, it cannot be said that those who have less than 60% marks in REET/RTET cannot migrate to TSP (General), as it cannot be said that the said candidates have obtained any relaxation in this regard, which position has to be distinguished based on the language of the notification, which clearly indicates that the requirement laid down under the relevant provision would get modified. 25. So far as, reliance placed by learned counsel for the respondents on various judgments is concerned, in the case of Vikas Sankhala & Ors. (supra), the principle laid down reads as under:- 84. 25. So far as, reliance placed by learned counsel for the respondents on various judgments is concerned, in the case of Vikas Sankhala & Ors. (supra), the principle laid down reads as under:- 84. These appeals are accordingly allowed in the manner indicated in this judgment, effect whereof would be as under: 84.1. Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the Government in its Communication dated 23-3-2011 to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the State Government. 84.2. Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category." 26. As already noticed herein-before, the principle that the reserved category candidates, who secure more marks obtained by the last unreserved category candidates can migrate, laid down in Clause (84.2) (supra), would have no application in the present case, where large number of vacancies are available in the TSP (General) category. The said principle only applies in a case where all the positions of General category are filled up. 27. Similarly, the principle laid down in the case of Deepa E.V. (supra) regarding bar of candidates belonging to SC/ST/OBC category, who have availed relaxation for being considered for General category candidates for the reason indicated hereinbefore, would have no application to the facts of the present case. 28. Similarly, the judgment in the case of Gaurav Pradhan & Ors. (supra) also would have no application to the facts of the present case. 29. In view of the above discussion, the action of the respondents in not migrating ST of the Scheduled Areas from TSP (ST) to TSP (General), despite there being large number of vacancies on account of the candidates having obtained less than 60% marks in REET/RTET and on the ground that they did not obtain higher marks than the last cut-off of the general candidates, cannot be sustained. 30. Consequently, the writ petitions filed by the petitioners are allowed. 30. Consequently, the writ petitions filed by the petitioners are allowed. The respondents are directed to redraw the merit list pursuant to the advertisement dated 12.04.2018 for Teacher Gr. III (Level-I) for TSP area based on the principles laid down hereinbefore. 31. It is made clear that except for the marks obtained by the ST candidates of Scheduled Areas in the REET/RTET, the restrictions on migration as applicable, would apply. On redrawing the merit list and on migrating the eligible candidates presently selected against the TSP (ST) category to TSP (General) category, the vacancies which occur in TSP(ST) category be filled up by the eligible candidates. Those candidates, who are now selected pursuant to the above exercise, would be entitled to all notional benefits based on the appointment accorded to the candidates, whose names appeared in the select list dated 01.06.2018. However, the candidates would be entitled to monitory benefits from the date they are accorded appointment by the respondents. 32. The entire exercise be undertaken and concluded by the respondents within a period of two months from the date of this order.