DEEPA E.V.versusUNION OF INDIA AND ORS.

                            [2017] 1 S.C.R. 938



A                              DEEPA E.V.
                                     v.

                      UNION OF INDIA AND ORS.
                      (Civil Appeal No. 3609of2017)
B                             APRIL 06, 2017
         [R. BANUMATHI AND A. M~ KHANWILKAR, JJ.]
           Service Law - Recruitment - Reservation for STISCIOBC
    candidates - Post of Laboratory Assistant Grade II - Appellant-
    OBC, applied under OBC category - Availing of'age relaxation as
c   also attending the interview under OBC category - Right to be
    appointed under the General category - Held: Appellant cannot
    claim right to be appointed under the General category - On a
    combined reading ofr. 9 of the 1980 Rules and also the proceedings
    dated 1. 7.1998, there is an express bar for the candidates belonging
D   to SCIST!OBC who have availed relaxation for being considered
    for General Category candidates - Export Inspection Agency
    (Recruitment) Rules, 1980 - r. 9.
           Dismissing the appeal, the Court
           HELD: 1.1 The appellant, who has applied under OBC
E   Category by availing age relaxation and also attending the
    interview under the 'OBC Category' cannot claim right to be
    appointed under the General Category. [Para 4] [940-B]
           1.2 On a combined reading of Rule 9 of the Export
    Inspection Agency (Recruitment) Rules, 1980 and also the
F   proceedings dated 1.7.1998, it is found that there is an express
    bar for the candidates belonging to SC/ST/OBC who have availed
    relaxation for being considered for General Category candidates.
    [Para 7] (942-D-E]
            1.3 The appellant did not challenge the constitutional
G   validity of the proceedings dated 1.7.1998 read with Rule 9 of
    the Export Inspection Agency (Recruitment) Rules, 1980. On a
    perusal of the prayer made in the writ petition, it is found that the
    appellant has only sought for a declaration that proceedings dated
    1.7.1998 is not binding on the appellant. No argument was
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                                   938
          ·oEEPA E.V v. UNION OF INDIA AND ORS.                             939



canvassed challenging the constitutional validity of the                    A
proceedings before the Single Judge or before the Division Bench
of the High Court. [Para 11) [944-C-D]
       Jitendra Kumar Singh and Another v. State of Ut
       Pradesh and Ors. (2010) 3 SCC 119 : (2010) 1 SL•.
       325- held inapplicable.                                               B
                        Case Law Reference
(2010) 1 SCR 325                 held inapplicable           Para 8
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3609
of2017.                                                                     c
       From the Judgment and Order dated 20.07.2015 of the High
Court ofKerala at Ernakulam in W. A. No. 827 of2015.
      P. G. Jayashankar, A. Karthik, Ms. Smrithi Suresh, Ms. Liz
Matbew, Ad vs. for the Appellant.
                                                                             D
        R. Venkataramani, Sr. Adv., L. R. Khatana, Sudhir Naagar,
Yashraj Singh Bundela, Shiv Mangat Sharma, Deepak Goel, GS. Makker,
Saurabh Raj pal, Advs. for the Respondents.
       The Judgment of the Court was delivered by
        R. BANUMATHI, J. I. This appeal arises out of the judgment           E
of the Kerala High Court in Writ Appeal No.827 of2015 dated 20.07.2015
whereby the Division Bench affirmed the order passed by the learned
Single Judge.
        2. The appellant applied for the post of Laboratory Assistant
Grade II in Export Inspection Council of India functioning under the         F
Ministry of Commerce and Industry, Government oflndia. The appellant
belongs to Dheevara community which is one of the "Other Backward
Class". Since the appellant was aged 26 years, she got age relaxation,
as was granted to OBC category candidates. The appellant was one of
the eleven candidates from OBC who were called for interview. The
appellant secured 82 marks (in the list of candidates from OBC category).    G
One Ms. Serena Joseph (OBC), who secured 93 marks was selected
and appointed.
       3. Insofar as the general category is concerned, no candidate
has secured the minimum cut off marks i.e. 70 marks. Stating that the
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940            SUPREME COURT REPORTS                           (2017] l S.C.R.


A     appellant has to be accommodated in the general category, she filed a
      Writ P!)tition before the High Court, which the learned Single Judge
      dismissed by judgment dated 16.1.2015. Being aggrieved, the appellant
      challenged the same in Writ Appeal No.827 of 2015, which came to be
      dismissed, which is impugned in this appeal.
B             4. The appellant, who has applied under OBC Category by
      availing age relaxation and also attending the interview under the 'OBC
      Category' cannot claim right to be appointed under the General Category.
               5. The recruitment by the Export Inspection Council of India
      which is functioning under the Ministry of Commerce, Government of
c     India is governed by the Export Inspection Agency (Recruitment) Rules,
      1980. As per Rule 9, the Rules regarding relaxation of age lilnits and
      other concessions.are to be governed by the Rules and also the orders
      issued by the Central Government from time to time in this regard. Rule
      9 reads as under:-

D                  "9. Saving:
              Nothing in these rules affect reservations, relaxation of age limit
              and other concessions required to be provided for the Scheduled
              Caste, Scheduled Tribes and other special categories of persons
              in accordance with the orders issued by the Central Government
              from time to time in this regard."
E
              6. Department of Personnel and Training had issued proceedings
      O.M. No.36012/13/88-Estt. (SCT), dated 22.5.1989 and OM No.36011/
      1/98-Estt. (Res.), dated 1. 7.1998 laying down stipulation to be followed
      by the various Ministries/Department for recruitment to various posts
      under the Central Government and the reservation for SC/ST/OBC
 F    candidates. The proceedings reads as under:-
              "G.l. Dept. of Per. & Trg., O.M. No. 36012/13/88-Estt. (SCT),
              dated 22.5.1989 and OM No.36011/1/98-Estt. (Res.), dated
              1.7.1998

 G                "Subject:- Reserved vacancies to be filled up by candidates
                  lower in merit or even by released standards- candidates
                  selected on their own merits not to be adjusted against
                  reserved quota.
                   As part of measure to increase the representation of SC/ST
              in the services under the Central Government, the Government
 H
   DEEPA E.V. v. UNION OF INDIA AND ORS.                             941
             [R. BANUMATHI, J.]

have reviewed the procedure for implementation the policy of         A
reservation while filling up reserved share of vacancies for
Scheduled Castes and Scheduled Tribes by direct recruitment.
The practice presently being followed is to adjust SC/ST
candidates selected for direct recruitment without relaxation of
students against the reserved share of vacancies. The position
                                                                      B
of such SC and ST candidates in the final select list, however,
was determined by their relative merit as assigned to them in the
selection process. When sufficient numberof suitable Scheduled
Caste and Scheduled Tribe candidates were not available to fill
up all the reserved share of vacancies, SC/ST candidates were
selected by relaxed standards.                                       c
 2. It has now been decided that in cases of direct recruitment to
vacancies in posts under the Central Government, the SC and
ST candidates who are selected on their own merit, without
relaxed standards along with candidates belonging to the other
communities, will not be adjusted against the reserved share of       D
vacancies. The reserved vacancies will be filled up separately
from amongst the eligible SC and ST candidates which will thus
comprise SC and ST candidates who are lower in merit than the
last candidate on the merit list but otherwise found suitable for
appointment even by relaxed standards, if necessary.
                                                                      E
3. All Ministries/Departments will immediately review the various
Recruitment Rules/Examination Rules to ensure that if any
provision is contrary to the decision contained in previous
paragraph exist in such rules, they are immediately suitably
modified or deleted.
                                                                      F
 4. These instructions shall take immediate effect in respect of
direct recruitment made hereafter. These will also apply to
selections where though the recruitment process has started,
the result have not yet been announced unless in the Examination/
Recruitment Rules or in the advertisement notified earlier there
is a specific provision to the contrary and the manner in which       G
the SC/ST vacancies could be filled has been indicated.
   Clarification:- The instructions contained in the above OM
apply in all types of direct recruitment whether by written test
alone or written test followed by the interview alone.
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942             SUPREME COURT REPORTS                            [20 I 7] I S .C.R.


A             2. The above OM and the O.M. No.36012/2/96-Estt.(Res.), dated
              2. 7 .1997 provide that in cases of direct recruitment, the SC/ST/
              OBC candidates who are selected on theirown'merit will not be
              adjusted against reserved vacancies. 3. Jn 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
B
              be adjusted against reserved vacancies. In other words, when a
              relaxed standard is applied in selecting an SC/ST/OBC
              candidates, for example in the age-limit. experience, qualification,
              permitted number of chances in written examination, extended
              zone of consideration larger than what is provided for general
c             category candidates, etc., the SC/ST/OBC candidates are to be
              counted against reserved vacancies. Such candidates would be
              deemed as unavailable for consideration against unreserved
              vacancies.
                                                            (Underlining added)
D            7. On a combined reading of Rule 9 of the Export Inspection
      Agency (Recruitment) Rules, 1980 and also the proceedings dated
      1.7.1998, we find that there is an express barforthe candidates belonging
      to SC/ST/OBC who have availed relaxation for being considered for
      General Category candidates.
E             8. Learned counsel for the appellant mainly relied upon the
      judgment of this Court in Jitendra Kumar Singh and Another v. State of
      Uttar Pradesh and Others, reported in (2010) 3 SCC 119, which deals
      with the U.P. Public Services (Reservation for Scheduled Castes,
      Sc.heduled Tribes and Other Backward Classes) Act, 1994 and
 F    Government order dated 25.3.1994. On a perusal of the above judgment,
      we find that there is no express bar in the said U .P. Act for the candidates
      ofSC/ST/OBC being considered for the posts under General Category.
      In such facts and circumstances of the said case, this Court has taken
      the view that the relaxation granted to the reserved category candidates
      will operate a a level playing field. Jn the light of the express bar provided
 G    under the proceedings dated 1.7.1998 the principle laid down in Jitendra
      Kumar Singh (supra) cannot be applied to the case in hand.
              9. Learned senior counsel appearing for the respondents has
      also drawn our attention to paragraph Nos.65 and 72 in Jitendra Kumar
      Singh (supra) to contend that principle in Jitendra Kumar Singh (supra)
 H
           DEEPA E.V. v. UNION OF INDIA AND ORS.                                943
                     [R. BANUMATHI, J.]

are in the context of interpretation ofU.P. Act 1994 and in the particular       A
factual situation of the said case. Paragraphs 65 and 72, read as under:-
        "65. In any event the entire issue in the present appeals need not
        be decided on the general principles oflaw laid down in various
        judgments as noticed above. In these matters, we are concerned
        with the interpretation of the 1994 Act, the Instructions dated          B
        25.3.1994 and the G.O. dated 26.2.1999. The controversy herein
        centres around the limited issue as to whether an OBC who has
        applied exercising his option as a reserved category candidate,
        thus becoming eligible to be considered against a reserved
        vacancy, can also be considered against an unreserved vacancy
        if he/she secures more marks than the last candidate in the             c
        general category.
        72. Soon after the enforcement of the 1994 Act the Government
        issued instructions dated 25 .3 .1994 on the subject ofreservation
        for Scheduled Castes, Scheduled Tribes and other backward
        groups in the Uttar Pradesh Public Services. These instructions,        D
        inter alia, provide as under:-
                  "4. If any person belonging to reserved categories is
            selected on the basis of merits in open competition along
            with general category candidates, then he will not be adjusted
            towards reserved category, that is, he shall be deemed to            E
            have been adjusted against the tmreserved vacancies. It shall
            be immaterial that he has availed any facility or relaxation
            (like relaxation in age limit) available to reserved category."
            From the above it becomes quite apparentthatthe relaxation
        in age limit is merely to enable the reserved category candidate         F
        to compete with the general category candidate, all other things
        being equal. The State has not treated the relaxation in age and
        fee as relaxation in the standard for selection, based on the merit
        ofthe candidate in the selection test i.e. Main Written Test followed
        by Interview. Therefore, such relaxations cannot deprive a
                                                                                 G
        reserved category candidate of the right to be considered as a
        general category candidate on the basis of merit in the competitive
        examination. Sub-section (2) of Section 8 further provides that
        Government Orders in force on the commencement of the Act
        in respect of the concessions and relaxations including relaxation
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944                 SUPREME COURT REPORTS                         [2017] I S.C.R.



A              in upper age limit which are not inconsistent with the Act continue
             · to be applicable till they are modified or revoked."
              I 0. Having regard to the observations in paragraphs 65 and 72,
      in our view, the principles laid down in Jitendra Kumar Singh (supra)
      cannot be applied to the case in hand. As rightly pointed out by the High
B     Court that judgment in Jitendra Kumar Singh (supra) was based on the
      statutory interpretation of the U.P. Act, 1994 and Government order
      dated 25.3.1994 which provides for entirely a different scheme.
              11 . Be it noted, in the instant case, the appellant has not challenged
      the constitutional validity of the proceedings dated I. 7.1998 read with
c     Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980. On
      a perusal of the prayer made in the writ petition we find that the appellant
      has only sought for a declaration that Exhibit PS (proceedings dated
      1.7.1998) is not binding on the appellant. No argument was canvassed
      challenging the constitutional validity of the proceedings before the learned
      Single Judge or before the Division Bench of the High Court.
D
              12. We do not find any merit in this appeal, which is, accordingly,
      dismissed.
                   13. Pending applications, ifany, shall stand disposed of.
                   14. There shall be no orders as to costs.
E

      Nidhi Jain                                                      Appeal dismissed.