NIRAVKUMAR DILIPBHAI MAKWANAversusGUJARAT PUBLIC SERVICE COMMISSION & ORS.

                         [2019] 9 S.C.R. 47                              47


            NIRAVKUMAR DILIPBHAI MAKWANA                                 A
                                  v.
      GUJARAT PUBLIC SERVICE COMMISSION & ORS.
                   (Civil Appeal No. 5185 of 2019)
                           JULY 04, 2019                                 B
     [S. ABDUL NAZEER AND INDIRA BANERJEE, JJ.]
      Service Law:
       Selection – Of a candidate who availed age relaxation as a
reserved category candidate – Whether has to be under reserved           C
category or can be accommodated in or migrated to general
category seat – Held: Art. 16(4) of the Constitution empowers the
State to provide reservation in appointments – It is discretion of the
State to formulate a policy as to manner and extent to which
reservation is provided – Such policy has to be spelled out from the
                                                                         D
orders issued by the Government – In the present case such policy
has been framed by the State by Circulars dated 21.01.2000 and
23.07.2004 – In view of these Circulars, if a relaxed standard is
applied in selecting a candidate for SC/ST, SEBC category, then
candidate of such category selected in such manner shall have to
be considered only against the reserved post and would be deemed         E
unavailable for consideration against unreserved post – Constitution
of India – Art. 16 (4) – Gujarat Civil Services Classification and
Recruitment (General) Rules, 1967 – r. 8.
      Dismissing the appeal, the Court
       HELD: 1. The State Government, in exercise of its powers          F
conferred under Article 309 of the Constitution of India made
Gujarat Civil Services Classification and Recruitment (General)
Rules, 1967 vide notification dated 10.10.1967. As per sub-rule
(2) of Rule 8, the appointing authority has been given powers to
relax age limit in favour of the candidates belonging to SC/ST           G
and SEBC and in favour of women candidates to the extent
indicated therein. The Ministry of Personnel, Public Grievances
and Pensions vide Office Memorandum dated 22.05.1989
formulated a policy in tune with Article 16(4) of the Constitution
of India, which enables the State Government to provide for
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                                47
48           SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A    reservation for the category of persons belonging to backward
     classes. Thereafter, the Ministry of Personnel, Public Grievances
     and Pensions vide Office Memorandum dated 01.07.1998 clarified
     the earlier O.M dated 22.05.1989. In the meantime, the State
     Government in its General Administration Department vide
     Government Resolution dated 11.12.1986 formulated a policy
B
     whereby 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
C    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
D
     the reserved seats. The State Government came out with a
     further clarification vide Circular No.PVS-102003-900-G-4 dated
     23.07.2004. [Paras 15, 16 and 17] [54-C-H; 55-A-B, E]
            2. Thus, the appointments in the category of SC/ST and
     other backward classes to the post of class I and class III in the
E    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. It is evident from the above two circulars that a
F    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. [Paras 18 and 19] [56-A-B]
            3. In the advertisement published by the Gujarat Public
G    Service Commission (GPSC) 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

H
NIRAVKUMAR DILIPBHAI MAKWANA v. GUJARAT PUBLIC                           49
              SERVICE COMMISSION

belonging to reserved category who applies in the open category,         A
such candidate would not get the benefit of age relaxation. Such
age relaxation was granted in pursuance to Rule 8 of Rules of
1967. [Para 23] [56-G-H]
      4. Article 16(4) of the Constitution is an enabling provision
empowering the State to make any provision or reservation of             B
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. The       C
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.
[Para 24] [57-E-F]
       5. In the instant case, State Government has framed policy        D
for 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        E
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.
[Para 25] [57-G-H]
                                                                         F
      6. It is also not correct 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   G
relaxation even at the final stage. 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. [Para 36] [60-E-F]
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50            SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A          Deepa E.V. v. Union of India and Ors. (2017) 12 SCC
           680; Gaurav Pradhan and Ors. etc. etc. v. State of
           Rajasthan and Ors. etc. etc. (2018) 11 SCC 352 :
           [2017] 8 SCR 951 – relied on.
           Jitendra Kumar Singh and Anr. v. State of Uttar Pradesh
B          and Ors. (2010) 3 SCC 119 : [2010] 1 SCR 325 ;
           Ajithkumar P. and Ors. v. Remin K.R. and Ors. (2015)
           16 SCC 778; Vikas Sankhala and Ors. v. Vikas Kumar
           Agarwal and Ors. (2017) 1 SCC 350 : [2016] 7 SCR
           639 – distinguished.
C                            Case Law Reference
     [2010] 1 SCR 325               distinguished              Para 7
     (2015) 16 SCC 778              distinguished              Para 12
     [2016] 7 SCR 639               distinguished              Para 12
D    (2017) 12 SCC 680              relied on                  Para 13
     [2017] 8 SCR 951               relied on                  Para 13
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5185
     of 2019
E          From the Judgment and Order dated 15.03.2017 of the High Court
     of Gujarat at Ahmedabad in Letters Patent Appeal No. 1103 of 2015 in
     Special Civil Application No. 1100 of 2015
          V. K. Garg, Sr. Adv., O. P. Bhadani, S. S. Pandey, Ms. Nupoor
     Dubey, Ms. Rashmi Atrey, Advs. for the Appellant.
F           Preetesh Kapur, Sr. Adv., Ms.Hemantika Wahi, Ms. Jesal, Advs.
     for the Respondents.
           The Judgment of the Court was delivered by
           S. ABDUL NAZEER, J.
G          1. Leave granted.
           2. The question for consideration in this appeal is whether a
     candidate who has availed of an age relaxation in a selection process as
     a result of belonging to a reserved category, can thereafter seek to be
     accommodated in/or migrated to the general category seat?
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NIRAVKUMAR DILIPBHAI MAKWANA v. GUJARAT PUBLIC                                  51
     SERVICE COMMISSION [S. ABDUL NAZEER, J.]

      3. Brief facts of the case which are necessary for deciding this          A
appeal are:-
       4. Gujarat Public Service Commission (for short ‘GPSC’) had
issued an advertisement dated 01.03.2010 and corrigendum thereafter
for 47 posts of Assistant Conservator of Forests (for short ‘ACF’) (Class-
II) and 120 posts of Range Forest Officer (for short ‘RFO’) (Class-II).         B
As per the said advertisement and corrigendum, total 84 posts were to
be filled in from unreserved (general category) candidates. Out of the
said 84 posts, 26 posts were reserved for women candidates, 48 posts
were to be filled in from socially and economically backward classes
(for short ‘SEBC’) category candidates. Out of 48 posts for SEBC
category candidates, 18 posts were reserved for women candidates, 9             C
posts were to be filled in from Scheduled Caste (for short ‘SC’) category
candidates, out of which 2 posts were reserved for women candidates.
Similarly, 26 posts were to be filled in from Scheduled Tribe (for short
‘ST’) category candidates, out of which 8 posts were reserved for women
candidates. It was also stipulated in the advertisement that 25% of the         D
vacancies shall, as far as practicable, be filled up by appointing candidates
who possess BSc degree with Forestry as the principal subject. GPSC
had stipulated in the advertisement that the candidates should submit
their on-line applications from 01.03.2010 to 06.04.2010. The details
about the educational qualifications, age, mode of examination as well
as the steps to submit the application have been narrated in the                E
advertisement.
       5. GPSC conducted preliminary test on 30.05.2010 and main
written examination was held from 27.05.2013 to 02.06.2013. The result
of the main written examination was declared on 21.05.2014. 505
candidates who cleared the main written examination were called for             F
physical measurement test. Personal interviews were conducted from
16.06.2014 to 31.07.2014.
       6. The appellant submitted an application in the category of SEBC.
He successfully passed the examination conducted by GPSC. In the list
of selected candidates published on 25.09.2014, he was shown at serial          G
no.138.
     7. It is the case of the appellant that while preparing the merit list,
GPSC has ignored the judgment of this Court in Jitendra Kumar Singh
and Anr. v. State of Uttar Pradesh and Ors., 2010 (3) SCC 119.
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A    Therefore, the appellant filed Special Civil Application No. 1100 of 1015
     before the learned Single Judge of the High Court of Gujarat challenging
     correctness of the aforesaid select list.
           8. The learned Single Judge by his order dated 11.06.2015 allowed
     the application in the following terms:
B          “The action of considering the meritorious reserved category
           candidates (who secured their position in general/open category
           on account of their performance) in their respective reserved
           category only because they availed benefit of “concession” which
           cannot be considered as “relaxation in merits” also set aside since
C          it is found to be contrary to the decision of Hon’ble Apex Court in
           the case of Jitendra Kumar Singh (supra).”
            9. Being aggrieved and dissatisfied with the order of the learned
     Single Judge, GPSC filed Letters Patent Appeal praying for setting aside
     of the order passed by the learned Single Judge. The Division Bench of
D    the High Court by order dated 15.03.2017 has allowed the appeal and
     set aside the order of the learned Single Judge as under:
           “Keeping in view the decisions rendered by the Hon’ble Supreme
           Court as well as this Court discussed hereinabove and in view of
           the discussion made by us in the aforesaid paragraphs, we are of
E          the opinion that the State of Gujarat has framed the reservation
           policy by Government Resolution dated 11.2.1986 and circulars
           dated 29.1.2000 and 23.7.2004 as well as in view of the statutory
           provisions i.e. Recruitment Rules of 1967, Rules of 2007, 2008
           and 2009, we hold that all those candidates belonging to a reserved
           category, if they avail the benefit of age relaxation, the same is to
F          be considered as relaxation in the standard and therefore such
           candidates who got the benefit of age relaxation are not entitled
           to be considered in general category and their cases are required
           to be considered for reserved category cases only. Thus, the
           decision rendered by the Hon’ble Supreme Court in the case of
G          Jitendra Kumar Singh (supra) would not be applicable to the facts
           of the present case and the relaxation of age in view of the policy
           of the State Government can be said to be relaxation in standard
           and the same cannot be considered to be concession. We answer
           the question posed for consideration accordingly.”

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NIRAVKUMAR DILIPBHAI MAKWANA v. GUJARAT PUBLIC                                   53
     SERVICE COMMISSION [S. ABDUL NAZEER, J.]

       10. In this appeal, the appellant has challenged the legality and         A
correctness of the aforesaid order of the Division Bench of the High
Court.
      11. We have heard Mr. V.K. Garg, learned senior counsel for the
appellant and Mr. Preetesh Kapur, learned senior counsel for the
respondents.                                                                     B
       12. Mr. Garg submits that the relaxation/concession in age granted
to the candidates at the initial stage only to enable a candidate belonging
to the reserved category without granting him/her any preferential
advantage in the matter of selection cannot be treated as an incident of
reservation under Article 16(4) of the Constitution of India. The Circulars      C
dated 29.01.2000 and 23.07.2004 issued by the Government of Gujarat
clearly show a concession in age in the matter of selection to a post
which cannot be treated as an incident of reservation. Therefore,
relaxation in age at the initial qualifying stage would not fall foul of these
circulars. Rule 4 of the ACF/RFO Competitive Examination Rules, 2008
read with the schedule, clearly stipulates that preliminary test is merely       D
to declare a candidate qualified for appearing in the written examination.
Examination and interview performance alone would be the criteria for
his/her selection for the appointment to the post. Therefore, relaxation
at the stage of preliminary test would not amount to grant of benefit of
reservation for selection. It is argued that Section 8 of the U.P. Public        E
Services (Reservation for Scheduled Castes and Scheduled Tribes) Act,
1994 is identically worded as circulars dated 29.01.2000 and 23.07.2004
in the State of Gujarat. Therefore, the ratio in Jitendra Kumar Singh
(supra) shall be squarely applicable to the facts of the present case too.
He has also relied on the judgments of this Court in Ajithkumar P. and
Ors. v. Remin K.R. and Ors., 2015 (16) SCC 778 and Vikas Sankhala                F
and Ors. v. Vikas Kumar Agarwal and Ors., 2017 (1) SCC 350, in
support of his submission.
       13. On the other hand, Mr. Preetesh Kapur, learned senior counsel
submits that a candidate who has availed of an age relaxation in the
selection process as a result of belonging to a reserved category cannot,        G
thereafter, seek to be accommodated in general category seats. In this
connection he has drawn our attention to the Circulars dated 29.01.2000
and 23.07.2004. It is further submitted that judgment of this Court in
Jitendra Kumar Singh (supra) has no application to the facts of this
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54             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A    case. The decision was rendered in the context of policy adopted by the
     State of U.P. In support of his submissions, he has relied on the judgments
     of this Court in Deepa E.V. v. Union of India and Ors., 2017 (12)
     SCC 680, and Gaurav Pradhan and Ors. etc. etc. v. State of Rajasthan
     and Ors. etc. etc., 2018 (11) SCC 352. It is argued that the relaxation
     in age granted at the initial stage in the instant case, is necessarily an
B
     incident of reservation under Article 16(4) of the Constitution of India.
           14. We have carefully considered the submissions of the learned
     senior counsel made at the Bar and perused the materials placed on
     record. For deciding the issue involved in this appeal, certain important
     aspects are required to be considered.
C
            15. The State Government, in exercise of its powers conferred
     under Article 309 of the Constitution of India made Gujarat Civil Services
     Classification and Recruitment (General) Rules, 1967 (Rules of 1967)
     vide notification dated 10.10.1967. As per sub-rule (2) of Rule 8, the
     appointing authority has been given powers to relax age limit in favour
D    of the candidates belonging to SC/ST and SEBC and in favour of women
     candidates to the extent indicated therein. The Ministry of Personnel,
     Public Grievances and Pensions vide Office Memorandum dated
     22.05.1989 formulated a policy in tune with Article 16(4) of the Constitution
     of India, which enables the State Government to provide for reservation
E    for the category of persons belonging to backward classes. Thereafter,
     the Ministry of Personnel, Public Grievances and Pensions vide Office
     Memorandum dated 01.07.1998 clarified the earlier O.M dated
     22.05.1989.
            16. In the meantime, the State Government in its General
F    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
G    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
H    time. The State Government vide Circular No.PVS-1099-MVN-13-G-4
NIRAVKUMAR DILIPBHAI MAKWANA v. GUJARAT PUBLIC                                55
     SERVICE COMMISSION [S. ABDUL NAZEER, J.]

dated 29.01.2000 clarified that a reserved category candidate, if has not     A
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:
                                                                              B
      “….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          C
      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          D
      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.”
                                                                              E
       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       F
      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             G
      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.”                                                H
56            SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           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.
B
          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.
C           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
D          (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
E    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)
F          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)
G
     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
H    was granted in pursuance to Rule 8 of Rules of 1967.
NIRAVKUMAR DILIPBHAI MAKWANA v. GUJARAT PUBLIC                                 57
     SERVICE COMMISSION [S. ABDUL NAZEER, J.]

      “8. Condition as to prescribed qualifications:                           A

      1) xxxx

      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        B
      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       C
      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      D
      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       E
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. The reservation being the enabling provision, the manner
and the extent to which reservation is provided has to be spelled out          F
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/       G
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.
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58            SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A          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
B
     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
C          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:-
D
           “It shall be immaterial that he has availed any facility or relaxation
           (like relaxation in age-limit) available to reserved category.”
             28. On consideration of sub-section (3) of Section 6 of the 1994
     Act and the Instructions dated 25.03.1994, this Court held that grant of
E    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
F    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
G    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 as under:
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NIRAVKUMAR DILIPBHAI MAKWANA v. GUJARAT PUBLIC                                  59
     SERVICE COMMISSION [S. ABDUL NAZEER, J.]

       “3. In this connection, it is clarified that only such SC/ST/OBC         A
       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       B
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
                                                                                C
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            D
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         E
       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      F
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              G
       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.”                   H
60             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A          33. The judgments in Deepa (supra) and Gaurav Pradhan
     (supra) fully support the case of the respondents.
            34. The judgment in Ajithkumar (supra) relied on by the 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
B    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
C    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 dated 11.05.2011, reserved
     category candidates were not eligible to be included as general category
     candidates. This Court, after noticing the circulars issued from time to
D    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
E    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
F    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.
           37. There is no merit in this appeal. It is accordingly dismissed.
     However, the parties are directed to bear their own costs.
G
     Kalpana K. Tripathy                                           Appeal dismissed.




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