1. These appeals, by leave are preferred by certain candidates who were not parties to a batch of writ petitions filed by some candidates. The
petitioners had questioned the legality of the cut-off dated 01.06.2018 relating to recruitment to the post of Teacher Gr. III (Level-I) for the Tribal
Sub-Plan area (TSP area). Those petitioners (arrayed as respondents hereafter called “contesting respondents†or “writ petitionersâ€) sought
directions to the State to prepare a revised cum fresh merit list while applying the proper procedure for reservation, in accord with the notification
dated 04.07.2016 (especially Point No. 11). By the impugned judgment, a learned Single Judge allowed the claims. The appellants, who are not parties,
claim to be affected.
2. The facts are that the State of Rajasthan issued an advertisement No. 2/2018 dated 12.04.2018 for recruitment to the post of 5431 Teachers Grade-
III (Level-I) - General Education and 72 teachers Grade-III (Level-I) -Special Education for TSP area. The minimum qualification indicated was
Senior Secondary with BSTC and having passed Rajasthan Eligibility Examination for Teachers ('REET')/RTET. The writ petitioners alleged that they
possessed the prescribed qualification and that they had submitted their on-line application forms. A district and category-wise vacancy was also
issued by the State, which was placed on record.
3. The contesting respondents had submitted that after completion of the process, the State issued the cut-off list on 01.06.2018. In terms of the cut
off list, all the candidates, who had applied as TSP (General), TSP (SC) and TSP (ST) (widow and divorcee), were selected and the cut-off for male
and female TSP (ST) was indicated as 51.33% marks. The contesting respondents complained about the procedure adopted by the State for
determining merit of TSP (ST) category candidates, in issuing the cut-off date 01.06.2018: it was contended that that was arbitrary and contrary to
settled procedure. It was submitted that as against 5431 posts, for the TSP area advertised, the State issued a select list for only 4264 posts, resulting
in 1167 posts remaining unfilled. It was argued that as far as these vacancies were concerned, the State had not prepared the merit list. It was urged
importantly that the state illegally did not consider the candidature of those securing below 60% marks in RTET/REET examination against the
TSP(General) category, which is contrary to the applicable stipulation, by which ST candidates of the scheduled area, the minimum requirement is
36% marks only. Therefore, candidates securing less than 60% marks, up to 36% a minimum of marks were entitled to be considered against the
position of TSP (General) category. The State contended that the petitioners, wrongly interpreted the rules as intending that the minimum marks were
to be 60%. This resulted in a number of unfilled vacancies in the category of TSP (General), as the state did not migrate ST candidates, who got less
than 60% marks in RTET/REET from ST to General, which is contrary to the entire scheme and various notifications issued in this regard.
4. As a result the writ petitioners sought directions to the State to redraw the list by treating the candidates, who have got marks 36% and above as
eligible to be considered against the category of TSP (General) in terms of their merit and sought a further direction that since they were low in merit
vis-Ã -vis candidates selected under the TSP (ST) category ought to be given appointment- on their merit either in TSP (General)/TSP(ST).
5. The state contended in its reply, and in its submissions that 5431 posts were advertised for TSP area, out of which 50% seats were kept for General
category candidates; 50% seats for reserved categories. The merit list, it was submitted, was prepared in terms of Clause 13 of the advertisement,
which required the candidates, who possessed 60% marks in RTET/REET; however, the incumbents belonging to ST of scheduled area were eligible,
if they obtained 36% marks in RTET/REET. The merit list/cut-off was prepared accordingly. It was argued that those in the TSP (ST) category, who
secured less than 60% marks in REET/RTET were considered against the vacancies reserved (for ST category) and the State’s action did not
violate any provisions in this regard.
6. The single judge issued directions, pursuant to which the State filed an additional affidavit, which indicated inter-alia, as follows:
2. That in the present case, it is pertinent to mention there that the total of 1095 applications were received against the post of TSP General Category
and as such, all of them are selected because the applications received were less than the total posts advertised for the TSP General Category and the
cut off of the TSP General Category was 60% i.e. the minimum qualifications prescribed for the TSP General Candidates. Further, as much as, 589
candidates belonging to TSP ST Category, who are having more than 60% in REET/RTET are also selected against the posts of TSP General
Category and other candidates of the TSP ST Category who are not having the cut off of the TSP General Category are not selected against the
posts of TSP General Category.
3. That it is most respectfully submitted that the petitioners are the candidates who have submitted their applications form in TSP ST Category and are
not having the cut off marks of general category i.e. 60% in the REET/RTET and as such their candidatures have not been considered for
appointment on the post of Teacher Gr. III Level I vacancies of the TSP General Category.
4. That it is most respectfully submitted that the law in respect of the migration of reserved category candidates on unreserved posts is very well
settled i.e. in case a reserved category candidate acquires more marks than the last cut off of the unreserved category than only he was allowed to
migrate to the General Category and as such candidate shall be given appointment against the unreserved seat. Whereas, in the present case, the
petitioners who have applied under TSP ST and admittedly they are not having the requisite 60% marks in REET/RTET fixed for the General
Category candidates, their candidature could not be considered against the posts of unreserved posts. That the present petitioners who have applied
from the TSP ST Category and were not selected in the at category because they does not fall within the cut off marks i.e. 51.33% and claimed
appointment against the vacant posts of General Category and in the above said situation when the petitioners does not even fall within the cut off
their own category they could not be allowed to migrate to the General Category, wherein the cut off is 60% and as such the present writ petition is
baseless and frivolous.
7. During the hearing, the State emphasized that as no TSP (ST) candidate scored higher marks than the last selected candidate in TSP (General) and
consequently, there was no question of any migration. Reliance was placed on Gaurav Pradhan & Ors. v. State of Rajasthan & Ors. (2018) 11 SCC
352, Deepa E.V. v. Union of India (2017) 12 SCC 680, and Vikas Sankhala & Ors. v. Vikas Kumar Agarwal & Ors. (2017) 1 SCC 350.
8. The Single Judge, by the impugned judgment noticed that the advertised vacancies in terms of the notification were 5431 posts for Teacher Gr. III
(Level-I) TSP area for General Education. The advertisement also provided that in terms of Notification dated 29.08.2012, for candidates belonging to
ST of scheduled area, the requirement of minimum passing marks in RTET/REET would be 36%, whereas it would be 60% for other candidates.
9. The Single Judge felt that the tenor of the notification indicated that the Governor exercised powers under Paragraph 5(1) of the Fifth Schedule to
the Constitution of India; it modified conditions of eligibility of ST candidates of the scheduled area, lowering the minimum marks (needed to qualify in
the test, for selection of teachers, in the scheduled area) to 36% marks in the qualifying examination. The Single Judge also noticed the effect of Para
5 of the Fifth schedule. The single judge concluded on a con-joint reading of Para 5 (1) and the terms of the notification dated August 29, 2012 and the
stipulation in the advertisement dated 12.04.2018 that the minimum requirement of marks under REET/RTET for ST candidates of Scheduled Areas
stood modified from 60% to the extent of 36%.
10. The impugned judgment also held that this could not be considered a relaxation as it was accorded to the ST candidates of Scheduled Areas;
further, it was held that this was also strengthened by the fact that the requirement of scoring 60% in RTET was not relaxed for any other
category/candidate. The judgment noted that the total posts meant for General category candidates was 2721, 269 were reserved for SC category and
2441 were reserved for ST category. Of the 2721 posts meant for general category, the State appointed only those candidates, who had 60% marks in
REET/RTET and only ST candidates (numbering 589) of the scheduled area were permitted to migrate to the general category. Therefore, 1167 posts
were left unfilled because a large number of TSP (general) were vacant.
11. The operative reasoning of the impugned judgment are extracted below:
“22. The case of the petitioners that the candidates, who have been selected against TSP (ST) have to migrate to the vacant positions in TSP
(General), inasmuch as, merely because they have less than 60% marks in REET/RTET, they cannot be counted against the vacancies of TSP(ST)
candidates and deprive the petitioners, who are lower in merit than the candidates, who have been granted appointment under the TSP (ST) category,
but have minimum 36% marks in REET/RTET, as once the candidates, who are higher in merit migrate to TSP (General), the petitioners would be
entitled to fill up those vacancies, has substance.
23. The plea which has been raised by the respondent-State, as noticed herein-before by way of additional affidavit, is that only those candidates can
migrate to General category, who have higher marks than the last cut-off of the General category. The said submission made by the respondents is
fallacious. In normal circumstances, wherein all the posts of General category are filled up, it is only those candidates, who are having higher marks in
reserved category and who have not taken any benefit of relaxation can only migrate to the General category, however, present is a typical case,
wherein large number of vacancies in TSP (General) are lying vacant and therefore, the principle sought to be applied that the candidate of reserved
category must have higher marks than the cut-off of General category, cannot be applied in the present case.
24. As the qualification for ST of the scheduled areas stands amended on account of notification dated 29.08.2012, it cannot be said that those who
have less than 60% marks in REET/RTET cannot migrate to TSP (General), as it cannot be said that the said candidates have obtained any relaxation
in this regard, which position has to be distinguished based on the language of the notification, which clearly indicates that the requirement laid down
under the relevant provision would get modified.
25. So far as, reliance placed by learned counsel for the respondents on various judgments is concerned, in the case of Vikas Sankhala & Ors.
(supra), the principle laid down reads as under:-
“84. These appeals are accordingly allowed in the manner indicated in this judgment, effect whereof would be as under:
84.1. Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the
Government in its Communication dated 23-3-2011 to be treated as having qualified TET examination and, thus, eligible to participate in the selection
undertaken by the State Government.
84.2. Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks
obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any
other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category.
26. As already noticed herein-before, the principle that the reserved category candidates, who secure more marks obtained by the last unreserved
category candidates can migrate, laid down in Clause (84.2) (supra), would have no application in the present case, where large number of vacancies
are available in the TSP (General) category. The said principle only applies in a case where all the positions of General category are filled up.
27. Similarly, the principle laid down in the case of Deepa E.V. (supra) regarding bar of candidates belonging to SC/ST/OBC category, who have
availed relaxation for being considered for General category candidates for the reason indicated hereinbefore, would have no application to the facts
of the present case.
28. Similarly, the judgment in the case of Gaurav Pradhan & Ors. (supra) also would have no application to the facts of the present case.
29. In view of the above discussion, the action of the respondents in not migrating ST of the Scheduled Areas from TSP (ST) to TSP (General),
despite there being large number of vacancies on account of the candidates having obtained less than 60% marks in REET/RTET and on the ground
that they did not obtain higher marks than the last cut-off of the general candidates, cannot be sustained.
30. Consequently, the writ petitions filed by the petitioners are allowed. The respondents are directed to redraw the merit list pursuant to the
advertisement dated 12.04.2018 for Teacher Gr. III (Level-I) for TSP area based on the principles laid down hereinbefore.
31. It is made clear that except for the marks obtained by the ST candidates of Scheduled Areas in the REET/RTET, the restrictions on migration as
applicable, would apply. On redrawing the merit list and on migrating the eligible candidates presently selected against the TSP (ST) category to TSP
(General) category, the vacancies which occur in TSP(ST) category be filled up by the eligible candidates. Those candidates, who are now selected
pursuant to the above exercise, would be entitled to all notional benefits based on the appointment accorded to the candidates, whose names appeared
in the select list dated 01.06.2018. However, the candidates would be entitled to monitory benefits from the date they are accorded appointment by the
respondents.â€
32. The entire exercise be undertaken and concluded by the respondents within a period of two months from the date of this order.â€
12. The appellants argue that the direction given by the learned Single Judge to fill-up TSP (ST) category candidates possessing less than 60% marks,
as against TSP general category vacancies would prejudice them gravely. It is contended that the benefit of migration can be availed of only when a
candidate's performance is very high in merit, and comparable to that of a general category candidate. In such event, reserved category candidate
would invariably be well above the minimum eligibility indicated for general category candidates and, would definitely also score more than the cut off
marks (i.e. marks obtained by the last selected candidate) for the general category seats. In such circumstances, to grant a benefit to the TSP (ST)
candidates on the basis of the notification dated 29.8.2012, twice over, would be unjustified.
13. It is submitted that the bench mark or eligibility prescribed for various categories is distinct; for TSP general category candidates- which make up
for above 50% of the vacancies- the bench mark prescribed is 60% marks in REET/RTET. It is highlighted that this bench mark is applicable to all
other category candidates i.e. ST/SC candidates of non-TSP areas as well as OBC candidates, each of whom are entitled to the benefit of
Constitutional reservation. To grant through Court's orders the facility of filling up such general category candidates from amongst TSP (ST)
candidates, who could not fulfill the bench mark criteria of 60% in REET/RTET, would be contrary to law.
14. It is highlighted that a TSP (ST) candidate can be treated as having migrated to the TSP general category only if she/he secures 60% or more than
60% in REET/RTET. It is submitted that as many as 589 TSP (ST) category candidates migrated to the TSP general category list. This meant that
589 candidates who so migrated to the TSP general category list secured more than 60%. This number is over and above the 2441 reserved for TSP
(ST) category candidates. Therefore, in all over 3000 TSP (ST) candidates were selected in the recruitment. To lower the standard further would
amount to discrimination against TSP general category candidates, who would be treated unfairly and the bench mark of 60% would stand lowered,
for a category which is already recipient of benefits of lowering of the eligibility norms.
15. It is contended that the appellants grievance is that if the bench mark prescribed for TSP general category i.e. minimum of 60% is relaxed for TSP
(ST) category to enable them to fill general category posts, the appellants too should be given the benefit of such relaxation. It is argued that once a
relaxation of the general bench mark is made, its benefit cannot be confined to candidates belonging to a particular reserved category, especially when
such reserved category candidates have exhausted the benefit of both-reservation by filling of posts earmarked for them as well as obtaining the
benefit of lowered educational qualification for the purpose of recruitment. It is urged that the direction to migrate such TSP (ST) candidates to the
general category vacancies list, would also prejudice the appellants because in the event of their non-selection, the number of posts would stand
drastically decreased.
16. The contesting respondents i.e. writ petitioners who had approached the Court successfully, relied upon Clauses 4, 9, 11.2 and 13 of the terms of
the advertisement. They argued that these stipulations were framed with the intention of ensuring maximum benefit to ST (TSP area) candidates. It
was highlighted by counsel for the writ petitioners that the notification of 29.8.2012 read with para 5(1) of the Fifth Schedule to the Constitution,
categorically overrides all other conditions. This meant- as correctly held by the learned Single Judge- that there was no lowering of standard but
rather that eligibility norms for TSP (ST) candidates were prescribed or substituted to 36%. The mere fact that TSP (ST) vacancies were earmarked
which got filled did not mean that such candidates cannot be considered, once it was shown that they had more merit and could be selected as such,
for the vacancies earmarked for TSP general category candidates.
17. The writ petitioners relied upon the judgment of the Supreme Court in Deepa (supra) to highlight that they are entitled to be considered against the
unreserved category (TSP) vacancies.
Analysis & Conclusions
18. The relevant provisions of the advertisement, cited by the counsel for the parties, are extracted below:-
“4. General Information-1, in order to be included in the priority list of primary and upper primary school teacher direct recruitment Level-1, 2018, it
will be mandatory for the candidates to earn minimum 60 percent passing marks in Level-1 of the Rajasthan Eligibility Test.
However, in terms of notification No.F-7/1/EE/Plan/2011 dated 29.08.2012, a minimum 36 percent passing marks is the eligibility prescribed for
Scheduled Tribes candidates of the tribal areas, to qualify in that test.
****************** ************
9. Explanation: To be included in the priority list of primary and upper primary school teacher direct recruitment Level-1, 2018, it is mandatory for the
candidate to obtain minimum 60 percent passing marks in level-1 of the Rajasthan Teachers Test. However in terms of notification No.F-
7/1/EE/Plan/2011 dated 29.08.2012 it is mandatory for Scheduled Tribe candidates of the Tribal Plan Areas to earn minimum 36 percent passing
marks.
****************** ************
11.2: Provision for Reservation (1) Except state services in the scheduled Areas specified by the notification dated 04.07.2016 of the State
Government Personnel Department, 45 percent of the vacancies of all state Services shall be filled by direct recruitment by the candidates of
scheduled tribes and 5 percent vacancies will be filled by the candidates of the scheduled castes of Tribal Areas. The remaining 50 percent vacancies
of Scheduled Area shall be filled by candidates of Scheduled Area, belonging to any caste or class, on the basis of merit according to their order of
preference (whether they belong to Scheduled Caste or Scheduled Tribe or any other category).
13: Recruitment Process (2) State level merit list will be prepared on the basis of maximum marks obtained by the candidates in the Rajasthan
Teacher Eligibility Test Examination, filled by the candidate in the application form.â€
19. Paragraph 5 (1) of the Fifth Schedule to the Constitution of India, reads as under:-
5. Law applicable to Scheduled Areas.- (1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any
particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a
Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction
given under this sub-paragraph may be given so as to have retrospective effect.
20. The notification dated 29.08.2012 is extracted below:
In exercise of powers conferred under sub-paragraph (1) of Paragraph 5 of Fifth Schedule to the Constitution of India. I, Smt. Margret Alva,
Governor of Rajasthan, hereby direct that sub-section (1) of section 23 of the Right of Children to Free and Compulsory Education Act, 2009 [Central
Act No. 35 of 2009] shall apply to the Scheduled Areas with the modification that any person belonging to Scheduled Tribe of that Area shall be
eligible for appointment as a teacher, same has obtained minimum 36% marks in the qualifying examination laid down under that sub-section.
Marget Alva
Governor of Rajasthan
21. The writ petitioners’ complaint, we notice, is that the advertisement was not operated and the instructions contained in it, improperly
implemented, resulting in over 1167 vacancies in the general category (TSP) cadre. Their argument was that once the Governor stipulated that the
eligibility condition for TSP (ST) candidates was 36%, the rule of migration applied and they and other candidates securing more than 36% in the
REET/RTET test had to be considered for the general category (TSP area) vacancies. They relied on the rule of migration in support of their claim.
22. The rule of migration, so called, is to ensure that candidates claiming reservation benefit, who participate in a public recruitment process, upon
securing high percentage of marks, that compares favourably or is more than the last marks secured by a general (unreserved) candidate, should be
included in the general category list; the corresponding slot should be filled by a reserved candidate of the same category, who might be lower in merit.
This rule was explained by the Constitution Bench of the Supreme Court, However, there is a finiteness to this procedure, as explained by the
Constitution Bench judgment of the Supreme Court in Union of India (UOI) v. Ramesh Ram & Ors 2010 (7) SCC 234 in the following terms:
“46. Reference was also made to R.K. Sabharwal v. State of Punjab (1995) 2 SCC 74,5 this Court had declared that the State shall not count a
Reserved Category candidate selected in the open category against the vacancies in the Reserved Category. However, by this it could not be inferred
that if the candidate himself wishes to avail a vacancy in the Reserved Category, he shall be prohibited from doing so. After considering the counsels'
submissions and deliberations among ourselves, we are of the view that the ratio in that case is not applicable for the purpose of the present case.
That case was primarily concerned with the Punjab Service of Engineers in the Irrigation Department of State of Punjab. The decision was rendered
in the context of the posts earmarked for the Scheduled Castes/ Scheduled Tribes and Backward Classes on the roster. It was noted that once such
posts are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant in a cadre thereafter, is
to be filled from the category reserved or general due to retirement or removal of a person belonging to the respective category. Unlike the
examinations conducted by UPSC which includes 21 different services this case pertains to a single service and therefore the same cannot be
compared with the examination conducted by UPSC. The examination conducted by UPSC is very prestigious and the top-most services of this nation
are included in this examination. In this respect, it is obvious that there is fierce competition amongst the successful candidates as well to secure
appointments in the most preferred services. This judgment is strictly confined to the enabling provision of Article 16(4) of the Constitution under
which the State Government has the sole power to decide whether there is a requirement for reservations in favour of the backward class in the
services under the State Government.
47. The proviso to Rule 16 (1) and Rule 16(2) operate in different dimensions and it is untenable to argue that these provisions are contradictory or
inconsistent with each other. As mentioned earlier, in the examination for the year 2005, 32 reserved candidates (31 OBC candidates and 1 SC
candidate) qualified as per the general qualifying standard [Rule 16(1)]. These MRC candidates did not avail of any of the concessions and relaxations
in the eligibility criteria at any stage of the examination, and further they secured enough marks to place them above the general qualifying standard.
MRC candidates are entitled to one of the two posts one depending on their performance in the General list and other depending on their position in
the Reserved List. When MRC candidates are put in the General list on their own merit they do not automatically relinquish their reserved status. By
the operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/ her better performance does not deny such candidate
the chance to be allotted to a more preferred service. Where, however, an MRC is able to obtain his preferred post by virtue of his /her ranking in the
General List, he/ she is not counted as a Reserved Candidate and is certainly not counted amongst the respective reservation quota.
48. We must also remember that affirmative action measures should be scrutinized as per the standard of proportionality. This means that the criteria
for any form of differential treatment should bear a rational correlation with a legitimate governmental objective. In this case a distinction has been
made between Meritorious Reserved Category candidates and relatively lower ranked Reserved Category candidates. The amended Rule 16(2) only
seeks to recognize the inter-se merit between these two classes of candidates for the purpose of allocation to the various civil services with due
regard for the preferences indicated by the candidates.
49. With regard to the specific characteristics of the UPSC examinations we hold that Reserved Category candidates (belonging to OBC, SC or ST
categories among others) who are selected on merit and placed in the list of general/unreserved Category candidates can choose to migrate to the
respective reserved categories at the time of allocation of services. Such migration is enabled by Rule 16(2) of the Civil Services Examination Rules,
which is not inconsistent with Rule 16(1) of the same or even the content of Articles 14, 16(4) and 335 of the Constitution of India.
50. We sum up our answers:
i) MRC candidates who avail the benefit of Rule 16(2) and adjusted in the reserved category should be counted as part of the reserved pool for the
purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the General Pool will be offered to General
category candidates.
ii) By operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/ her better performance does not deny him of the
chance to be allotted to a more preferred service.
iii) The amended Rule 16(2) only seeks to recognize the inter se merit between two classes of candidates i.e. a) meritorious reserved category
candidates b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the
preferences indicated by them.
iv) The reserved category candidates ""belonging to OBC, SC/ ST categories"" who are selected on merit and placed in the list of General/Unreserved
category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by
Rule 16(2) is not inconsistent with Rule 16(1) or Articles 14, 16(4) and 335 of the Constitution.â€
23. The petitioners’ contention, in effect, therefore, results in a demand for recasting of the select list, based on the ground that vacancies in the
general category have not been filled. This court notices that during the proceedings before the Single Judge, the petitioners had relied on the judgment
of the Supreme Court in Vikas Sankhala & Ors. vs. Vikas Kumar Agarwal & Ors. 2017 (1) SCC 750. That judgment, as well as three other
judgments, i.e. Gaurav Pradhan and Ors. vs. State of Rajasthan & Ors.J itendra Kumar Singh and Anr. vs. State of U.P. & Ors. 2010 (3) SCC 119
and Niravkumar Dilipbhai Makwana vs. Gujarat Public Service Commission & Ors. 2019 (9) SCALE, were considered in the context of a demand for
migration of candidates of the reserved category, to the general category, in Virendra Kumar & Ors. vs. The State of Rajasthan & Ors. ( D.B. Spl.
Appl. Writ Nos. 1733/29 decided on 09.08.2019). In Virendra,(supra) this court held as follows:
“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 and contents 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.
24. This court is of the opinion that the writ petitioners’ arguments could not have been countenanced. The intention of advertising 5431 TSP area
teacher vacancies and preferring candidates (by providing quotas) was to ensure that at least 50% of such advertised vacancies were filled by TSP
(ST) candidates (to the extent of 45% of the overall advertised vacancies) and 5% for TSP (SC) candidates. This move was to ensure that the TSP
area candidates benefitted the most; also that such candidates were perhaps most likely to stay on in their area and help in the spread of education.
The rest of the vacancies had to be filled by TSP area general category candidates, irrespective of their caste or community. Concededly, TSP (ST)
candidates filled all the 2441 vacancies: the cut off marks for such candidates was 51.33%. A large number of TSP area ST candidates managed to
secure high percentage â€" their number was 589. The State operated the general category list in such a manner as to include these 589 candidates in
the general category list, thus freeing a corresponding 589 vacancies to be filled by other TSP (ST) candidates with lesser marks. It is after this
process was adopted that the cut off marks for TSP (ST) candidates was lowered to 51.33%.
25. The writ petitioners’ contention that the eligibility of 36% prescribed by the Governor’s notification (of 29-08-2012) had the effect of
lowering the standard for TSP (ST) candidates, is in the opinion of this court, fallacious. The standard prescribed by the State for recruitment of all
teachers is 60% in REET/RTET. The effect of the Governor’s notification was to ensure that in all recruitment processes involving teachers in
TSP areas, ST candidates (from such areas) secured a tangible benefit; without such a notification they would perhaps have been able to secure a far
fewer number of such posts: evident from the fact that the cut off even in their case was 51.33%. This means that the last candidate- in the 45%
quota meant for TSP (ST) candidates â€" among the 2441 selected individuals, secured 51.33% in REET/RTET. If one considers that as many as 589
TSP (ST) candidates migrated, to the general category list, which means that they secured far higher marks than the stipulated minimum percentage
of 60%, the writ petitioners claims stand bared in stark reality. What the petitioners claimed and succeeded in getting was an order directing the State
to treat all candidates, who could not get into the TSP (ST) reserved list, i.e. who could not secure 51.33% marks, as general category candidates, -
the minimum eligibility for which concededly is 60%. There is a sheer incongruity in such a claim, because though the writ petitioners acknowledge
that for the general category posts, the eligibility is 60% (which they do not possess) and for which those who possess such eligibility have been
selected, and, more importantly, as against which (i.e general category) as many as 589 TSP (ST) candidates secured sufficiently high marks to be
considered as general category candidates, there should be another standard, i.e less than 51.33% for them. The Single Judge, despite the startling
nature of this submission, acceded to it.
26. In the opinion of the court, the counsel’s ingenuity of arguing that a large number of general category vacancies would go begging, should have
been not a relevant consideration while granting relief. The result of the impugned direction is that for TSP (ST) vacancies 2441 candidates (as against
eligibility of 36%) were selected; the cut off marks for this category was 51.33%. As against 2721 general category vacancies, only 1095 eligible
applicants applied. For these vacancies, 589 TSP (ST) candidates were selected. In this category, 1167 vacancies remained unfilled. This meant that
only 971 general category candidates were selected. The application of the 60% rule was followed for this category- both for TSP (general)
candidates, as well as TSP (ST) candidates, 589 of whom were allowed to migrate to the general category list. After the process of migration, all 2441
TSP (ST) vacancies were filled. This meant that the object of reservation for TSP (ST) candidates, by granting a lower eligibility condition of 36%
was satisfied; not only that, the representation of that category (as against the 45% quota earmarked- which worked out to 2441 posts) was in excess,
to the extent of 589- who were included in the general merit category. Thus, 3130 TSP (ST) candidates were selected against 5431 vacancies
advertised. This works out to 57.63% of the total vacancies earmarked, being filled by TSP (ST) candidates. If one takes into account the total TSP
(ST) candidates who were selected against the actual number of vacancies filled, it is even higher (73.40% i.e. 3130 TSP (ST) candidates selected
against a total of 4264 selections.
27. The court is of the opinion that the impugned judgment has resulted in a startling, even anomalous consequence: two eligibility and cut offs would
apply for the same category, i.e. general category, despite an express stipulation that all unreserved seats would be filled from amongst candidates
with minimum marks of 60%. The discriminatory effect is apparent because that standard is adhered to for all categories (general TSP, OBC TSP,
TSP (ST), TSP (SC)). However, that yardstick has to be lowered and TSP (ST) candidates have to be selected â€" in terms of the impugned
directions, despite the fact that they do not possess the minimum 60%.
28. This court is of opinion that the judgment in Deepa or Vikas Sankhala do not lead to the kind of situation that has resulted in this case. In all those
cases, the question of migration despite the minimum prescribed benchmark (for open category posts) was not in issue; rather it was whether, having
regard to the rules, the benefit of age relaxation or any such advantage gained by the reserved category candidate precluded her or him from securing
a slot in the open merit category: implicit in those cases was the fact that the reserved category candidate had fulfilled the cardinal rule underlying the
principle of migration, i.e. having obtained the minimum cut off marks applicable to open or general category vacancies. It is therefore, held that the
ratio of those decisions are inapplicable to the facts of this case.
29. For the foregoing reasons, this court is of opinion that the impugned judgment is in error; it is accordingly set aside. The writ petitions are
dismissed; for these reasons, the appeal is allowed. All applications too are disposed of.
