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2024 DIGILAW 1668 (RAJ)

Jasveer S/o Jagdish v. State of Rajasthan

2024-12-06

MUNNURI LAXMAN

body2024
ORDER : 1. The petitioner applied for the post of ‘Safai Karmchari’ in pursuance of the notification/advertisement dated 13.04.2018 under the general category. His grievance is that the candidates belonging to the reserved category were recruited under the general category therefore, the petitioner had been deprived from the consideration under the general category. 2. Learned counsel representing the petitioner submits that similar kind of writ appeals were filed before the Division Bench of this Court and the Court in D.B. Spl. Appeal Writ No. 1733/2018 (Virendra Kumar & Ors. Vs. State of Rajasthan & Anr.) and batch of appeals pronounced the judgment on 09.08.2019 while disposing the appeals. The relevant portion of the said judgment reads as follows: “24. The next important question is whether names of candidates of any reserved category, who availed a chance in the draw of lots for that category, can nevertheless be included in the draw of lots or lottery held for general category candidates. The appellants had sought to urge that granting such opportunity would be an additional one, because those (applicants) who do not belong to any reserved category are given only one chance. 25. It was argued on behalf of some of the unsuccessful candidates that permitting “migration” to reserved category candidates and including the names of those, who had availed age relaxation, is contrary to law and Article 14. Here, it was submitted that such candidates got the benefit of a concession, which enabled them to participate in the draw of lots vacancies earmarked for such reserved categories. Having availed of that chance, they could not- on the strength of such age relaxation- be permitted to participate in the draw of lots held for general category candidates. This Court finds merit in the submission. This issue had arisen earlier as well. In Gaurav Pradhan and Ors. vs. State of Rajasthan & Ors. (2018) 11 SCC 352 the Supreme Court held as follows: “46. As noticed above Rule 7(1) of 1989 Rules expressly provides that “reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion.” The circular of the Government shall be treated to be in force for the purpose of reservation which is in force at the time of recruitment. Recruitment commenced by the advertisement dated 7.10.2010 and 25.10.2010 at that time only circular dated 24.06.2008 was in force, hence, subsequent circular dated 11.05.2011 cannot be applied in the present recruitment. There cannot be any dispute that the policy of reservation can always be changed by the State Government and the State Government can change the manner and methodology of implementing the reservation and criteria of reservation of the reserved category candidates and general category candidates. It is also relevant to note that both learned Single Judge and Division Bench have not approved circular dated 11.05.2011 in toto. Both the Courts have held that apart from age relaxation, if the candidate has taken any other relaxation circular dated 11.05.2011 cannot help him in migrating into general category candidate. 47. We are thus of the opinion that Division Bench erred in modifying the judgment of the learned Single Judge and holding that candidates availing relaxation of age belonging to reserved category-candidates who find place in merit list of the general/open category has to be treated to be included in the general/open category. The above conclusion of the Division Bench is unsustainable for the reason as indicated above. 48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court. 49. On the question of existence of vacancies, although learned Counsel for the Appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned Counsel for the State of Rajasthan. However, neither Appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies. We thus for adjusting the equity between the parties issue following directions: (1) The writ Petitioners/Appellants who as per their merit were entitled to be appointed against unreserved vacancies which vacancies were filled up by migration of SC/ST/BC candidates who had taken relaxation of age should be given appointment on the posts. The State is directed to work out and issue appropriate orders for appointment of such candidates who were as per their merit belonging to general category candidates entitled for appointment which exercise shall be completed within three months from the date copy of this order is produced. (2) The State shall make appointments against the existing vacancies, if available, and in the event there are no vacancies available for the above candidates, the supernumerary posts may be created for adjustment of the Appellants which supernumerary posts may be terminated as and when vacancies come into existence.” 26. Recently, in Nirav Kumar Dilipbhai Makwana vs. Gujarat Public Service Commission & Ors. (decided on 4th July 2017) the Supreme Court again re-iterated the position as follows: “16. Recently, in Nirav Kumar Dilipbhai Makwana vs. Gujarat Public Service Commission & Ors. (decided on 4th July 2017) the Supreme Court again re-iterated the position as follows: “16. In the meantime, the State Government in its General Administration Department vide Government Resolution dated 11.12.1986 formulated a policy to the effect that the members belonging to the SC and ST categories who are selected for appointment by direct selection to any service or post included in the State Services or in the Subordinate Services on the basis of their merits, shall be considered for appointment on unreserved posts, which are filled in on merit along with other general category members. As per the said Government Resolution dated 11.12.1986, such appointments on merit of the members belonging to such castes and tribes shall in no way affect claims of the members of such castes and tribes for appointment in the services or on the post reserved for them under the Government orders issued from time to time. The State Government vide Circular No. PVS-1099-MVN-13-G-4 dated 29.01.2000 clarified that a reserved category candidate, if has not availed of any relaxation viz. age limit, experience, qualification, number of chances to appear in the examination, the said candidate will be adjusted in the open category and in case the candidate has availed any of the aforesaid relaxation, he/she will have to be adjusted against the reserved seats. This circular reads as under: ...After careful and mature consideration in this regard, it is clarified that only those Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes candidates who are selected on the same standards as applied to the general category candidates, shall be counted/adjusted against unreserved posts and not against the reserved posts. When relaxed standard have been applied in selection of candidates belonging to Scheduled Castes, Scheduled Tribes and Socially and educationally Backward Classes in terms of the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category, etc. then the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes candidates selected under such arrangement shall be counted against the reserved posts. Such candidates would be deemed as unavailable for consideration against unreserved posts. 17. The State Government came out with a further clarification vide Circular No. PVS-102003-900-G-4 dated 23.07.2004. then the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes candidates selected under such arrangement shall be counted against the reserved posts. Such candidates would be deemed as unavailable for consideration against unreserved posts. 17. The State Government came out with a further clarification vide 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 is clarified that candidates belonging to Scheduled Caste/Scheduled Tribe/Socially and Educationally backward classes, who got selected on merit through competitive examination without availing any relaxation in prescribed standards for eligibility shall not be adjusted against the reserved posts but candidate belonging to the Scheduled Case/Scheduled Tribe/Socially and Educationally backward classes who got selected by availing relaxation in qualifying marks in competitive written examination and personal interview shall be counted against the reserved posts. However, reserved class candidates who have been granted exemption from paying examination fee shall not be barred from competing for an unreserved vacant post. 18. Thus, the appointments in the category of SC/ST and other backward classes to the post of class I and class III in the State Services are being governed by the aforesaid policies and the State Government and/or any Authorities effecting direct appointments are required to give effect to the aforesaid policy decision at the time of recruitment process viz. preparing the select list etc. 19. It is evident from the above two circulars that a candidate who has availed of age relaxation in the selection process as a result of belonging to a reserved category cannot, thereafter, seek to be accommodated in or migrated to the general category seats. 20. The State of Gujarat framed the Rules for regulating the recruitment to the post of ACF in Gujarat Forest Services Class II recruitment Rules 2007. (i) The Assistant Conservator of Forests in the Gujarat Forest Service, Class-II Recruitment Rules, 2007 (ii) The Assistant Conservator of Forests in the Gujarat Forest Service Class-II Recruitment (Amendment) Rules, 2008. (iii) The Assistant Conservator of Forests in the Gujarat Forest Service, Class-II Recruitment (Amendment) Rules, 2009. 21. Similarly, the State of Gujarat has made the following Rules for regulating 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) Rules, 2009. 22. 21. Similarly, the State of Gujarat has made the following Rules for regulating 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) Rules, 2009. 22. The State Government vide Notification dated 18.09.2008 framed the Examination Rules of 2008. 23. In the advertisement published by the GPSC inviting applications from the eligible candidates for the post of ACF (Class II) and RFO (Class II) dated 01.03.2010, upper age limit relaxation was granted to the candidates belonging to SC/ST and SEBC category. It was also 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. Such age relaxation was granted in pursuance to Rule 8 of Rules of 1967. 8. Condition as to prescribed qualifications: (1) xxx xxx xxx (2) Where the prescribed qualification include a qualification as to age limit the appointing authority may relax the age limit in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class and in favour of candidate who are women to the following extent, that is to say: (a) in the case of a service or post in a subordinate service or of a State Service in respect of which the prescribed age limit does not exceed forty years, the age limit may be relaxed to the extent of five years. (b) in the case of service or post in the State Service in respect of which prescribed age limit exceeds forty years, the age limit may be relaxed to the extent of maximum five years, so as to provide that upper age limit for entry in the service does not exceed forty five years. 24. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time. 25. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc. then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post. 26. Now, let us consider the judgment in Jitendra Kumar Singh (supra). In this case, this Court was considering the interpretation of Sub-Section (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short “1994 Act”) and the Government Instructions dated 25.03.1994. Sub-Section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under: (6) If a person belonging to any categories mentioned in Sub-Section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under Sub-Section (1). 27. The State of U.P. issued Instructions dated 25.03.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Groups in the Uttar Pradesh Public Services. Last line of these instructions is as under: 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 the1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. 28. On consideration of Sub-Section (3) of Section 6 of the1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated 25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case. 29. In Deepa (supra), the Appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is asunder: 3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies. 30. The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case. 31. Similar question arose in Gaurav Pradhan (supra). In this case the Government had issued Circular dated 24.06.2008 which is as under: Circular dated 24-6-2008 6.2. In the State, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment. 32. In this case the Government had issued Circular dated 24.06.2008 which is as under: Circular dated 24-6-2008 6.2. In the State, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment. 32. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh(supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under: 32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25-3-1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24-6-2008. 33. The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the Respondents. 34. The judgment in Ajith kumar (supra) relied on by the learned senior Counsel for the Appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category. 35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the Appellant in any manner. 36. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the Appellant in any manner. 36. There is also no merit in the submission of the learned Counsel for the Appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation Under Article 16(4) of the Constitution of India.” 27. This issue had been earlier dealt with by another decision of the Supreme Court in Vikas Sankhala & Ors. vs. Vikas Kumar Agarwal and Ors. 2017 (1) SCC 750. The court had then observed as follows: “59. The learned Counsel for the general category candidates, on the other hand, maintained that TET was apart of recruitment process and relaxation in passing marks in that examination amounted to giving concession to reserved category candidates and after availing such concession they were not entitled to migrate to general category. It was also submitted that insofar as decision of the State contained in letter dated May 11, 2011 is concerned, it was rightly held by the High Court that norms could not be changed after the selection process has started. 60. Having regard to the respective submissions noted above, first aspect that needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be soon the premise that Para 9(a) dealing with such relaxation in TET marks forms part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in guidelines/notification dated February 11, 2011. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in guidelines/notification dated February 11, 2011. These guidelines pertain to conducting of TET. Basic features whereof have already been pointed out above. Even Para 9 which provides for concessions that can be given to certain reserved categories deals with ‘qualifying marks’ that is to be obtained in TET examination. Thus, a person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is marks in TET. So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally get less marks under this head. We like to demonstrate it with an example. Suppose a reserved category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14marks in recruitment process. Thus, on the basis of TET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, “level playing field” is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks. Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied a cross the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET. 61. Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied a cross the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET. 61. Once this vital differentiation is understood, it would lead to the conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of circular dated May 11, 2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc. except on fee and age. 62. In Jitendra Kumar Singh and Anr. v. State of Uttar Pradesh and Ors. MANU/SC/0032/2010 : (2010) 3 SCC 119 , this Court has very categorically held that relaxations given in educational qualifications etc. making a person eligible to participate in selection process would not be treated as availing benefits in the recruitment/employment and the benefits envisaged have to be those which have direct relation to recruitment/employment and are relatable to the jovial relationship of employer and employee. It is also clarified that such benefits must occur from and should be post ‘level playing field’. We would like to reproduce the following discussion from the said judgment touching upon the aforesaid aspects: 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. 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 disadvantages 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 candidates 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 xxx xxx 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 competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate 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 participate in the open competition. 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 participate in the open competition. It is stated at the cost of repetition that provision of giving 20% marks of TET score was applied to all candidates irrespective of the category to which he/she belongs and, therefore, no concession or relaxation or advantage or benefit was given in this behalf which could disturb the level playing field and tilt advantage in respect of reserved category candidate. On the contrary, the reserved category candidates who had secured less marks in TET examination are given lesser marks in the recruitment process on the application of the formula of allocating 20% marks of TET score. Question No. 3 is answered accordingly. 63. These appeals are accordingly allowed in the manner indicated in this judgment, effect whereof would be as under: (a) 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 March 23, 2011 to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the State Government. (b) 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.” 28. Thus, Gaurav Pradhan, Vikas Sankhala (supra) and Dilipbhai (supra) have all dealt with the issue of whether reserved category candidates who avail some concession (for belonging to such reserved categories) should be granted the benefit of “migration” to the general category vacancies. It could be argued that each depended on the circulars issued by the concerned governments, (i.e. States of Gujarat and Rajasthan) and the court went by the interpretation of the instructions andcontents of those circulars. It could be argued that each depended on the circulars issued by the concerned governments, (i.e. States of Gujarat and Rajasthan) and the court went by the interpretation of the instructions andcontents of those circulars. Yet, in both Gaurav Pradhan and Vikas Sankhla, (both of which dealt with recruitments relatable to the State of Rajasthan), the view expressed was that if a reserved (ST/SC or OBC) category candidate availed of age relaxation, she or he could not be “migrated” to the general category, in the event of better performance on merit. This was underlined in Gaurav Pradhan: “we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.” 29. The learned Single Judge was of the opinion that since there was no skill involved on the part of the candidates, in the present case, as the recruitment was lottery based, the above rule (i.e. against migration) cannot apply. This court is of the opinion that the view is erroneous. In the first place a reserved category candidate’s name is included - in the schedule and method of recruitment, early. This court is of the opinion that the view is erroneous. In the first place a reserved category candidate’s name is included - in the schedule and method of recruitment, early. It is after exhausting chances as a reserved category candidate (and further sub reservations included therein for persons with disabilities, for women, etc) that the draw of lots for residual vacancies is held. Such being the case, in the absence of a procedure involving testing an individual’s skill, or proficiency, where the draw of lots solely determines the recruitment, granting of multiple chances to one who would be otherwise ineligible to participate in the process as against the open category vacancies, would be in violation of Article 14. It is therefore, held that selection of the reserved category candidates who availed of age relaxation concessions based on the draw of lots as against open category vacancies is contrary to law. 30. Some of the appellants had argued that since the entire recruitment is based on draw of lots and does not involve any element of skill, reserved category candidates’ names should not have been included in the draw of lots held for open category candidates, as they could not be considered against such open quota. This court is of the opinion that the open category vacancies are not part of any quota. Although the rule of “migration” was articulated in the context of reserved category candidates performing and securing results comparable to or better than candidates of the unreserved category, nonetheless, the fact remains that both “categories” are candidates. That the reserved category belong to classes who are inadequately represented, places them in a different position, in that they are to the extent of reservation and their merit, assured of a better chance of appointment. Nonetheless, they as well as the unreserved category candidates fulfil the description of eligible individuals, entitled to equal treatment. This equal treatment, without the benefit of reservation, is afforded in competition or any other mode adopted for the unreserved category vacancies. Therefore, reserved category candidates’ names cannot be excluded from the draw of lots held for the residual, unreserved category of candidates, as those vacancies are not part of any quota. The appellants submissions, on this aspect are therefore, rejected. 35. In the light of the foregoing discussion, the appeals are partly allowed; all applications too are therefore, disposed of.” 3. Therefore, reserved category candidates’ names cannot be excluded from the draw of lots held for the residual, unreserved category of candidates, as those vacancies are not part of any quota. The appellants submissions, on this aspect are therefore, rejected. 35. In the light of the foregoing discussion, the appeals are partly allowed; all applications too are therefore, disposed of.” 3. In light of the above, the instant Writ Petition is also disposed of in terms of the aforesaid judgment.