Mr. N. Kotiswar Singh, J.—Heard Mr. B.P. Sahu, learned senior counsel for the petitioner and Mr. I. Lalitkumar, learned senior counsel for the Manipur Public Service Commission (MPSC). Also heard Mr. R.S. Reisang, learned Sr. Government Advocate for the State respondents and Mr. S. Rupachandra, learned counsel for the respondent No.3, who has been later impleaded in this writ petition.
2. In this writ petition, the petitioner is claiming for relaxation of age limit in terms of the advertisement for appointment to the post of Assistant Engineer issued by the Manipur Public Service Commission, which was not allowed by the MPSC.
3. The facts of the case as may be relevant may briefly be stated as follows.
The petitioner, a Bachelor in Engineering, was initially appointed to the post of Laboratory Technician (Civil) in the Manipur Institute of Technology, Imphal, on contract basis for a period of six months vide order dated 23.9.2005. Thereafter, his service was regularised in terms of the resolution of the Executive Committee of the Manipur Institute of Technology Society vide order dated 12.10.2005. At the time of initial appointment, the said Manipur Institute of Technology was governed by the Manipur College of Technology Society, a registered society under the administrative control of the Department of Higher Education and Technical, Government of Manipur. While he was serving in the Manipur Institute of Technology as such, the said MIT come under the control and supervision of the Manipur University vide order dated 4.4.2006 but w.e.f. 31.10.2005. Thereafter, while the petitioner was so serving as a Laboratory Technician (Civil) as mentioned above, the Manipur Public Service Commission issued an advertisement on 7.5.2013 calling for applications for recruitment to the posts of Assistant Engineers in different departments of the State of Manipur. In the aforesaid advertisement, as regards the age limit, it has been fixed at 21 years and not more than 35 years as on 1st July, 2013 and it has been further provided that upper age limit is relaxable for Government servants appointed under the Government of Manipur to the extent of the period of continuous service in the post/service and a Government servant who belongs to SC/ST/OBC will get the facility admissible to a Government servant in addition to the relaxation admissible to SC/ST/OBC candidates. As mentioned in the advertisement, the upper age limit for OBC candidates has been relaxed by 3 years.
4. In terms of the said advertisement, he was over-aged by two years four months and 27 days. Thus, the petitioner had crossed more than 35 years as on 1st July, 2013. This is not disputed by any of the parties. The petitioner applied for the said post treating himself to be a Government servant appointed under the Government of Manipur as he was under the bona fide impression that he having been appointed under the Manipur Institute of Technology while it was under the State Government, was a Government servant. He was, therefore, under the belief that in view of the relaxation in age given to the Government servants appointed under the Government of Manipur to the extent of service rendered, he would be within the age limit. The petitioner''s application was accepted by the Manipur Public Service Commission and accordingly, the petitioner was issued admit card and he took part in the recruitment process consisting of written examination as well as interview. However, to his surprise, even though the petitioner had fared well in the recruitment process, his name was not declared as one of the successful candidates. Instead the Manipur Public Service Commission issued a memorandum dated 02.01.2014, after giving him an opportunity to explain his case, stating that the candidature of the petitioner is cancelled. The ground given in the said memorandum, which is challenged in the present writ petition, is that the petitioner was over-aged as the maximum age limit for general candidates was 35 years and it was relaxable only for Government employees under the Government of Manipur to the extent of period of past continuous service. It has been mentioned in the said memorandum that it has been found that the Manipur Institute of Technology is a constituent college of the Manipur University, and hence, the employees of Manipur Institute of Technology come under the Manipur University and they are not employees of State Government. Therefore, the petitioner was not entitled to the relaxation clause provided in the advertisement. Accordingly, his candidature was cancelled.
5. Being aggrieved, the petitioner has approached this Court by filing the present writ petition challenging the aforesaid memorandum and seeking other consequential relief. The stand taken by the petitioner is that when the petitioner was appointed by the Manipur Institute of Technology, it was very much under the State Government as the said Manipur Institute of Technology was under the control of the Department of Higher and Technical Education, Government of Manipur. Accordingly, it has been contended that he was very much a Government servant of the State Government. It has been also contended that what the advertisement provides is that the upper age limit is relaxable for Government servants appointed under the Government of Manipur to the extent of the period of continuous service in the post/service. It has been contended that it is not mentioned in the advertisement that the continued service must be under the Government of Manipur. According to the petitioner, it will suffice if the candidate had been initially appointed as the Government servant under the Government of Manipur. It is the case of the petitioner that since the petitioner was appointed in the Manipur Institute of Technology which was a Government society, he shall be deemed to be a Government servant under the Government of Manipur and the fact that the service continued subsequently under some other authority will not make any difference as far as the claim for relaxation of being a Government servant is concerned. Mr. B.P. Sahu, learned senior counsel appearing for the petitioner, in order to buttress his argument, has referred to another advertisement issued by the Manipur Public Service Commission on 26.02.2014 relating to the recruitment to various posts of Section Officers under the Government of Manipur (Annexure-A/8). In the aforesaid advertisement, it has been specifically mentioned that the upper age limit is relaxable for Government servants appointed under the Government of Manipur to the extent of the period of continuous service "put" in the post/service, which means that the period of relaxation mentioned in the advertisement is the actual period rendered/put in by the person concerned under the Government of Manipur. According to him, however, the expression used in the present advertisement in issue dated 7.5.2013 is different as the word ''put'' has not been used in the advertisement. In the present advertisement, it has been simply mentioned that the upper age limit is relaxable for Government servants appointed under the Government of Manipur to the extent of the period of continuous service in the post/service. He contends that the requirement that service must be continued to be rendered in a Government of Manipur post is not clearly mentioned in the present advertisement. Therefore, according to Mr. B.P. Sahu, learned senior counsel, since the petitioner was initially appointed as a Government servant, his continued service should be taken into consideration for the purpose of relaxation. It does not matter if the nature of appointment had been subsequently changed after he was initially appointed as a Government servant under the Government of Manipur.
6. Mr. B.P. Sahu, learned senior counsel further submits that though the petitioner belongs to OBC category, he did not apply as an OBC category candidate but as a Government servant by seeking relaxation of age granted to Government servants as provided in the advertisement. He submits that had the petitioner applied as an OBC candidate, he would have automatically been entitled to 3 years of relaxation as provided in the advertisement and the relaxation of age that the petitioner has sought for is less than 3 years. Mr. B.P. Sahu, Ld. Senior Counsel, therefore, submits that as the effect was same, he did not feel the need to apply as an OBC candidate and he applied as a General candidate as a Government servant as there was relaxation clause provided for Government servants genuinely believing that he is a Government servant. Mr. B.P. Sahu, learned senior counsel also submits that the petitioner has, in fact, fared well in the examination and has been included in the merit list. However, because of this issue of age bar, the candidature of the petitioner has been cancelled.
7. On the other hand, Mr. I. Lalitkumar, learned senior counsel appearing for the Manipur Public Service Commission has vehemently opposed the contention of the petitioner. It has been submitted by Mr. I. Lalitkumar, learned senior counsel that the advertisement used the expression "Government servant appointed under the Government of Manipur". Therefore, a person who is claiming relaxation must be a Government servant working under the Government of Manipur and not under any other authority. It has been submitted that this expression "Government servant" must be referred to the State Government. In the present case, it is the State of Manipur. However, the petitioner was never a Government servant appointed under the Government of Manipur. It has been stated that the petitioner was an employee of a society and not under any Government department and moreover, this issue had been already settled by the Manipur Public Service Commission in consultation with the State Government. He submits that the Manipur Public Service Commission in order to clarify the issue, had written to the State Government seeking their opinion regarding the status of the employees of the Manipur Institute of Technology as to whether they should be treated as Government employees of the State Government or not vide letter dated 11.12.2013 (Annexure-X/1). In response, the State Government had clarified that Manipur Institute of Technology is under the control and supervision of Manipur University and since it is a constituent college of Manipur University, the employees of Manipur Institute of Technology are under Manipur University and therefore, they are not employees of the State Government of Manipur vide letter dated 21.12.2013 (Annexure-X-2). Accordingly, Mr. I. Lalitkumar, learned senior counsel has submitted that since the matter has been settled in consultation with the State Government to the effect that the employees of the Manipur Institute of Technology cannot be considered to be employees of State Government, the petitioner being an employee of the Manipur Institute of Technology under the control and supervision of the Manipur University, a Central University, the petitioner cannot be considered a Government servant appointed under the Government of Manipur within the meaning of the relaxation clause provided in advertisement.
In this connection, Mr. I. Lalitkumar, learned senior counsel has relied on a number of decisions of the Hon''ble Supreme Court rendered in the cases of Bhupinderpal Singh & ors. v. State of Punjab & ors., (2000) 5 SCC 262; Union Public Service Commission v. Girish Jayanti Lal Vaghela & ors., (2006) 2 SCC 482; Union Public Service Commission v. Dr. Jamuna Kurup & ors., (2008) 11 SCC 10; General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi & ors., (2009) 7 SCC 205 and Brij Mohan Lal v. Union of India & ors., (2012) 6 SCC 502 in support of his contention that Government servant cannot mean any other employees other than the employees of the State Government concerned and such employees must have been appointed by the State Government by following rules and norms as framed under Article 309 of the Constitution of India or any such related recruitment rules and must have been appointed after following norms of public employment. It has been contended that in the present case, there is no document or any evidence to show that the petitioner had been appointed as a Government servant of the State of Manipur and as such, he cannot enjoy the relaxation as mentioned in the impugned advertisement.
8. Mr. R.S. Reisang, learned Sr. Government Advocate appearing for the State respondents has also submitted that since the Manipur Institute of Technology is a constituent college of the Manipur University, the petitioner cannot be considered to be a Government employee for the purpose of enjoying relaxation clause mentioned in the advertisement. Mr. R.S. Reisang, learned Sr. Government Advocate submits that in any event, the petitioner was working in the Manipur Institute of Technology while it was under the State Government for a period of less than one month and other remaining period of service has been rendered while he was serving under the control of the Manipur University and therefore, even if the period rendered by him under the Manipur Institute of Technology while it was under the Government of Manipur is deemed as a Government service is considered, since he had rendered less than one month, it will not be of any help to the petitioner as the remaining period of service rendered by him was while he was working in Manipur Institute of Technology as a constituent college of the Manipur University and not under the State Government. Accordingly, it has been submitted that the petitioner not being an employee of the State Government, cannot enjoy such age relaxation clause as mentioned in the advertisement, and as such, the impugned memorandum does not suffer from any illegality.
Mr. S. Rupachandra, learned counsel for the respondent No. 3 has endorsed the views and contentions advanced by Sri I. Lalitkumar Singh and Sri R.S. Reisang, learned Senior counsels for the other respondents.
9. Mr. B.P. Sahu, learned Senior Counsel for the petitioner, however, relying on the decisions of the Hon''ble Supreme Court rendered in (i) Pashupati Nath Sukul v. Nem Chandra Jain & Ors., (1984) 2 SCC 404; (ii) V.S. Mallimath v. Union of India & Anr., (2001) 4 SCC 31; (iii) Union Public Service Commission v. Dr. Jamuna Kurup and Anr., (2008) II SCC 10 has submitted that while interpreting the words "Government servants", one must adopt a liberal approach and hence, the strict, literal and narrow interpretation placed by the respondents may not be accepted. He also has relied on the decision of the Hon''ble Gauhati High Court rendered in Mamtaz Ali v. Assam Public Service Commission and Ors., 2014 (4) GLR 376 to further buttress his contention.
Further, relying on the decisions in (i) State of Rajasthan v. M/s Hindustan Sugar Mill Ltd. and Ors., (1988) 3 SCC 449; (ii) Food Corporation of India v. S.N. Nagarkar, (2002) 2 SCC 475 and (iii) Sri Justice S.K. Ray v. State of Orissa and Ors., (2003) 4 SCC 21, the learned Senior Counsel submits that the Court can mould the relief sought for in this case by holding that even if the petitioner had applied as an unreserved candidate, since he actually belongs to OBC category, and as he did not apply under the OBC category due to bona fide belief that he would be given age relaxation even if applied under the General category, as a Government servant, he could still be considered to be an OBC candidate in the peculiar facts and circumstances of the case. He also submits that this factum that the petitioner belongs to OBC category has not been denied by the respondents. In this regard, he had sought support from the decision rendered by this Court in Abujam Surbala Devi v. The State of Manipur & Ors., W.P.(C) No. 427 of 2013 which has not been interfered by the Hon''ble Supreme Court, where the Court allowed the claim of the petitioner therein to be appointed as an OBC candidate, though the petitioner did not state in the application form that she belongs to OBC category as there was no column specifically provided to indicate as belonging to OBC category, though she submitted an OBC certificate.
10. On hearing the learned counsel for the parties and considering the materials on record, it is clearly evident that the bone of contention between the contesting parties is regarding the issue of relaxation of age as provided in the advertisement. Accordingly, it would be appropriate to reproduce the relevant relaxation clause as mentioned in the advertisement which reads as follows:-
"1. ......
2. Eligibility Conditions:
(i) The candidate must be a citizen of India.
(ii) Age Limit :
(a) shall not be less than 21 years and not more than 35 years as on 1st July, 2013.
(b) The upper age limits is relaxable by 5 years for SC/ST, 3 years for OBC and 10 years for Persons with Disabilities. Candidates belonging to SC/ST/OBC who are also physically handicapped will be eligible for grant of cumulative age relaxation under both the categories. Provided that the upper age limit is relaxable for Government servants appointed under the Government of Manipur to the extent of the period of continuous service in the post/service and a Government servant who belongs to SC/ST/OBC will get the facility admissible to a Government servant in addition to the relaxation admissible to SC/ST/OBC candidates."
(emphasis added)
A minute examination of the aforesaid relaxation clause as provided under the proviso to para 2(ii)(b) of the advertisement would reveal the following :
(i) The expression "Government servants" as mentioned in the first part is qualified by the expression "appointed under the Government of Manipur" to the extent of the period of continued service in the post. Thus, it clearly indicates that these Government servants are those who are appointed under the Government of Manipur and not other Government servants appointed under other authorities..
(ii) As per the second part, a "Government servant who belongs to SC/ST/OBC" will get the facility admissible to a Government servant in addition to the relaxation admissible to SC/ST/OBC candidates. It thus provides for an additional benefit if such Government servant belongs to SC/ST/OBC.
11. Much has been argued on the definition and meaning of the expression "Government servant". Mr. I. Lalitkumar, learned Senior Counsel for the MPSC as well as Mr. R.S. Reisang, learned Senior G.A. for the State relying upon the decisions of the Hon''ble Supreme Court as mentioned above have strenuously argued that the petitioner cannot be considered to be a Government servant appointed under the Government of Manipur as at the time of issuance of the advertisement in 2013, the Manipur Institute of Technology had become as a constituent college of the Manipur University and the MIT was transferred to the Manipur University, which is a Central University, in terms of the resolution taken in the 2nd General Body Meaning of the Governing Council of Manipur Institute of Technology held on 13th January, 2006. It has been also asserted that the MIT was earlier managed and controlled by a society and not by the State Government. Thus, in any event, he was no more a Government servant under the Government of Manipur, after MIT become a constituent College of Manipur University and come under the control and supervision of Manipur University, even if, it is assumed that MIT was earlier under the Government of Manipur. Mr. Lalitkumar, learned Senior Counsel for the respondents has stated that this matter has now been finally settled by the State Government as evident from the communication dated 21.12.2013 from the Higher Education Department, Government of Manipur to the MPSC in which it is clearly stated that since MIT is a constituent college of Manipur University, the employees of MIT are not the employees of the State Government of Manipur and as such there is no scope for getting the benefit of relaxation of age which is given only to the Government servants appointed under the Government of Manipur.
On the other hand, Mr. B.P. Sahu, learned Senior Counsel for the petitioner has vehemently argued that since the petitioner was appointed in the MIT when it was under the Government of Manipur, the case of the petitioner is squarely covered by the said relaxation clause as the relaxation is to be given to the Government servant appointed under the Government of Manipur. He contends that there is no restriction imposed in the said advertisement that such a relaxation will not be applicable if the person ceases to be in service under the Government of Manipur after he was initially appointed under the Government of Manipur, but if his service is continued.
12. This Court has given anxious consideration to the rival contentions. Normally, relaxation is by way of exception to the general rule and as such, the exceptional clause ought to be given a strict interpretation as the exception clause would permit what is otherwise not permissible under the general rule. However, it is also a well established canon of interpretation of statues that if any legislation is enacted for a larger public interest or as a beneficial legislation, it ought to be given a liberal interpretation. In the present case, the relaxation of age given to the Government servant appointed under Government of Manipur is by way of derogation from the normal stipulation of the age provided under rules. Therefore, normally it would receive a strict interpretation. Yet, this relaxation clause has been included as a beneficial legislation. This relaxation has been granted not only to the SC/ST/OBC candidates but also to the Government servants who may have crossed the age limitation provided under the rules while serving under the State Government. Thus, this exceptional clause has been inserted for giving certain benefit to those Government employees who were in service so that they do not get disqualified on account of age bar by giving them an opportunity to compete with other fresh candidates. Therefore, this Court would take the view that even if this relaxation is by way of exception to the general rules, since it is a beneficial legislation, it ought to receive a liberal interpretation.
13. However, in the present case, even by giving a liberal interpretation to the expression "Government servant appointed under the Government of Manipur", this Court is of the view that the petitioner cannot get the benefit for the service rendered by him after MIT come under the control of Manipur University. It was the plea of the petitioner that once he was appointed in MIT when it was under the control of the Government of Manipur, it matters not even if MIT is subsequently taken over by the Manipur University as he will retain the earlier status as Government servant appointed under the Government of Manipur. This Court is not impressed by this argument of Mr. B.P. Sahu. It cannot be said that even if the petitioner is deemed to be a State Government servant at the time of initial appointment at MIT when it was under the control of the Government of Manipur, he will continue to enjoy the status of a State Government employee even after the control and management has been taken over subsequently by another authority which is not under the control of the Government of Manipur. In the present case, once the management of the MIT was handed over to the Manipur University, it cannot be said that the petitioner continues to be an employee of the State Government, even if assuming that before handing over to the Manipur University it was under the Government of Manipur and he was a Government servant. The acceptance of the argument of Mr. B.P. Sahu would lead to an absurd situation where a person can still claim the status of a State Government employee even after the organisation has ceased to be a State Government organisation and comes under the control of the Central Government or any other authority. The moment the organisation comes under the control and authority of a Central University or the Central Government, he will deem to be an employee of the Central University or Central Government as the case may be, and such employee cannot continue to claim to be an employee of the State Government after the State Government has given up control and authority over the said organisation. Therefore, in the present case, after the control and authority over the MIT had been handed over to the Manipur University, the employees of the MIT would become employees of the Manipur University or the society which manages the MIT as the case may be and will cease to be the employee of the State Government. In view of the above, this Court has felt it not necessary to deal in detail the definition and meaning of "Government servant" as elaborately argued by the parties.
14. However, rejection of the plea of the petitioner on this count, in the opinion of this Court, would not automatically lead to denial of relief to the petitioner. The relaxation clause as mentioned above clearly provides for relaxation of 3 years for the OBC candidates. Normally, the relaxation clauses provided for SC or ST or OBC or any other reserved category is identified with the posts reserved under the respective categories in the recruitment process so that candidates belonging to these categories can be appointed against the posts reserved for them under the relaxed criteria as may be provided. In the present case what has been noted is that there were certain posts of Assistant Engineers reserved for the OBC category. Similarly, there were also certain seats reserved for ST category. Therefore, obviously if any candidate belonging to any of these categories of OBC or ST applies for the said reserved posts, he will be entitled to be considered for these posts with the relaxed criteria. This, however, does not mean that if any OBC or ST or any reserved category candidate is found meritorious and suitable for appointment under the Unreserved/General category, such candidate belonging to OBC or ST can not be appointed under the Unreserved Category. However, such candidate belonging to the reserved category may not be considered for appointment against Unreserved category under the relaxed criteria touching upon merit. In this regard, one may refer to the decision of the Hon''ble Supreme Court in Jitendra Kumar Singh v. State of U.P., (2010) 3 SCC 119, where the Hon''ble Supreme Court held that concession by giving relaxation in age or examination fees in respect of reserved candidates is merely to bring under the zone of consideration and does not upset the "level playing field", and can be considered for appointment against unreserved vacancy based on merit as stated in para 75 of the judgment which is reproduced herein below:
"75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfil the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition."
In view of the above, relaxation granted in age is not really a substantive relaxation of the essential eligibility criteria which affects the merit so as to disentitle any claim for appointment based on merit. Thus, even a candidate belonging to any of the reserved categories would be entitled to be considered for appointment under the unreserved/general category if he is found to meritorious enough and fulfil the minimum eligibility criteria laid down for the unreserved/general category without availing any relaxation clause, except age or examination fee. Accordingly, even if the petitioner is granted relaxation of age yet if he is meritorious enough, his claim for appointment against the unreserved quota cannot be ignored.
In the present case, the petitioner can avail the relaxation of age only if he is considered either a Government servant, which is not, or as an OBC candidate. If the petitioner is indeed a candidate belonging to OBC category, he would be entitled to 3 years of relaxation granted for the OBC candidates as mentioned in the advertisement. However, the objection of the respondent MPSC as well as the State respondents is that the petitioner applied under the Unreserved category and as such he is not entitled to the relaxation of age granted to the OBC candidates. This objection at first blush may seem well merited but on further scrutiny does not hold water in the present facts and circumstances of the case. First of all, the claim of the petitioner that he belongs to OBC has been specifically pleaded in the pleadings as mentioned in para No. 12 of the reply affidavit filed by the petitioner. In para 12 it has been specifically pleaded that he belongs to the category of OBC and if he had applied as an OBC candidate there would not have been any age bar because of the relaxation granted to the OBC candidates. It has been further pleaded that, in view of the relaxation clause mentioned as above, for the Government servants appointed under the Government of Manipur, and as the petitioner was appointed while the MIT was under the State Government, he applied as a General category. The aforesaid specific plead taken by the petitioner that he belongs to the OBC category has not been denied by the respondents. Thus, the factum that the petitioner belongs to OBC category is not disputed, in which event he will get the benefit of relaxation of age, of course, it will be subject to proper verification of the certificates in support of such a claim. Whether a person belongs to OBC or not, is a question of fact and an inherent attribute of a person which comes along from birth and even if a person has not specifically mentioned that he belongs to OBC category, it would not divest him of the status of OBC as the categorisation as OBC is inextricably linked to his caste, which is determined by birth not by choice. Thus, he would be entitled to the benefits of the OBC unless he falls under the creamy layer, of course, he can give up his claim for appointment under the quota reserved for the OBC if he so desires. The MPSC and the Respondents would contend that by not applying as an OBC candidate, the petitioner has waived and forfeited his rights as available to an OBC candidate. This contention is quite natural and ordinarily would be accepted. However, because of the peculiar facts and circumstances of the case as discussed herein below, this Court is not able to accept the said contention. It is not denied by the petitioner that he had not applied as an OBC candidate but he applied under the Unreserved quota. However, he offers an explanation for the same. He contends that in order to avail the benefit of age relaxation, which is the only hurdle before the petitioner in his candidature, he opted to apply as a Government servant with the permission from the authorities of the MIT on the bona fide belief that as he was a Government servant, he would be entitled to relaxation of age, as such relaxation is granted to Government servants appointed under the State Government. He based his belief on the ground that when he was initially appointed as a Laboratory Technician in the MIT, the Institute was under the Government of Manipur. This mistaken notion that he is a Government servant and as such entitled to relaxation of age made him apply as a Government servant under the Unreserved category and not as an OBC candidate. Though, technically, the petitioner may be wrong in presuming that the petitioner was a Government servant appointed under the Government of Manipur as contended by the respondents, it cannot be said that such presumption was preposterous and absolutely unwarranted, as MIT, though was governed by a society, was under the control of the Higher Technical Education Department, Govt. of Manipur. Therefore, it cannot be said that he had deliberately misled the authorities of the MPSC or concealed material facts or that he had waived his rights and privileges of an OBC candidate or that he did not consider himself a candidate belonging to OBC. Therefore, by taking a liberal approach to the problem in issue, if it is accepted that due to bona fide presumption the petitioner had applied as a Government servant, by such application it cannot be said that he has ceased to be an OBC candidate for all purposes. In the present case, he is claiming relaxation only in respect of the age and not in respect of any other eligibility criteria and the Hon''ble Supreme Court has already held in Jitendra Kumar (supra) that relaxation in age does not in any manner upset the "level playing field". Relaxation in age does not compromise or amounts to relaxation of essential qualifications so as to give any undue benefit to a reserved candidate when considered for appointment against unreserved vacancy. A person belonging to a reserved category would be entitled to be appointed/adjusted under unreserved category so long as he fulfils minimum eligibility requirements for the unreserved category on the basis of merit in competitive examination, of course, it can be said that since the petitioner did not apply as or declare himself as an OBC candidate initially, to that extent it may be deemed that he has waived his right to be considered for appointment under the OBC quota. However, even assuming that he has waived his right to be appointed against the OBC quota, and as such cannot claim for appointment against the OBC quota, yet, he cannot be denied the right to be considered for appointment against Unreserved quota based on merit. It is to be noted that under the Unreserved quota, anyone whether, General, SC or ST or OBC or any reserved category can be appointed provided he is meritorious enough and fulfils all the essential requirements fixed for the Unreserved category. The Unreserved quota is open to all irrespective of the category of the candidate, but the appointment under the Unreserved quota will be purely based on merit without taking any benefit of relaxation of any criteria. The Hon''ble Supreme Court has already held in Jitendra Kumar (supra) that relaxation in age or examination fee is no concession or relaxation of any essential qualification for the purpose of consideration for appointment under the Unreserved category based on merit. In that context, this Court is of the opinion that any such relaxation in age granted to an OBC candidate as mentioned in the advertisement cannot be denied to the petitioner if he is found to be belonging to OBC category. In the present case, if the petitioner is placed sufficiently high in the merit list, his claim for appointment against unreserved posts cannot be defeated merely because of the relaxation in age which may be granted to him as an OBC candidate provided there is vacancy available under the Unreserved category. In this case, even though the petitioner applied under the Unreserved category, and sought for relaxation of age as a Government servant under the Government of Manipur, it cannot be said that he has ceased to be an OBC candidate. He very much remains a candidate belonging to OBC. Though the petitioner may not be considered for appointment against the OBC quota as he did not apply as an OBC candidate as stressed by respondents, in the facts and circumstances of the case, it cannot be stated that the petitioner has ceased to be an OBC candidate for all purposes and he cannot be denied the benefit of relaxation of age, as discussed above. Whether the petitioner really belongs to OBC, however, will be a question of fact which can be verified by the authority, and if it is found that the petitioner indeed belongs to OBC category, this Court is of the view that the petitioner would be entitled to the relaxation of age and the claim of the petitioner cannot be rejected on the ground that he did not declare so at the time of filing the application. Once it is ascertained that a candidate belongs to OBC, it is the inherent right of the OBC candidate to claim relaxation of age as provided under the advertisement, of course, as already observed, the petitioner may not have any claim for appointment under the reserved posts for the OBCs as he has not specifically claimed for it. However, as stated above, if the petitioner is placed sufficiently high in the merit list in the General category he may be considered for appointment under the General category if vacancy still exists. This Court would like to emphasise that the right of the petitioner to be considered for appointment as discussed above is contingent upon existence of vacancy under the Unreserved quota. This right of the petitioner cannot be enforced in absence of vacancy as, otherwise, it will upset and unsettle appointments already made who cannot be made to suffer on account of such claim of the petitioner as neither the authorities nor any of the other appointees were responsible for the situation the petitioner has created for himself.
15. It has been brought to the notice of this Court that on 27.03.2014 while considering the prayer for interim relief, this Court had directed that one of the 41 posts of Assistant Engineers advertised, may not be filled up without leave of this Court and it has been stated at Bar that there is one post still unfilled which is under the unreserved category and the respondents had not sought for vacation of the said interim order for reserving one vacancy. Further, as per order passed by this Court on 12.03.2015, the MPSC has furnished two documents one containing the marks obtained by the petitioner in the recruitment tests and another document containing the merit list of 110 candidates. As per the said documents the petitioner is shown to have secured 472 out of 1200 marks and it is seen that in the merit list prepared for 110 candidates, there are 20 candidates who had obtained more marks than the petitioner and one candidate who has obtained same marks as the petitioner. The remaining candidates including the present respondent no. 3 got less marks than the petitioner, hence, less meritorious than the petitioner.
16. This Court has taken the aforesaid view, primarily considering the fact that the petitioner, though belonging to OBC category applied as a General candidate and as a Government servant as he was under the belief that he would be granted relaxation of age because of the bona fide impression that as a Government servant, he would have got the relaxation as a matter of right. This Court is of the view that such a belief on the part of the petitioner is neither entirely unwarranted or unreasonable, nor would have the effect of causing prejudice to anyone as the claim of the petitioner is based on his merit and not on account of any relaxation of any other criteria other than age relaxation which is permissible as has been held by the Supreme Court in the Jitendra Kumar (supra). As there is admittedly a vacancy under the Unreserved category, if the claim of the petitioner is allowed, it will not cause dislocation in the appointments already made or in the select list based on merit.
17. It may be also observed that it seems that there is no other claimant who is more meritorious than the petitioner who can be considered for filling up the lone vacant post of Assistant Engineer under the Unreserved quota. As discussed above, there are only 11 candidates who are above the petitioner in merit and there is one candidate who is equal in merit to the petitioner who belongs to Unreserved category and the remaining candidates amongst the 110 candidates are below the petitioner in merit. It is also seen from the merit list of 110 candidates that there are 8 candidates belonging to OBC who are above the petitioner and 11 candidates belonging to the Unreserved category who are above the petitioner. Therefore, as the vacant post which has been left unfilled falls under the Unreserved category as also stated by the respondents as per the communication dated 30.11.2015 placed before this Court, and if there is no other more meritorious candidate than the petitioner who has not been appointed, the petitioner can be adjusted against the said vacancy under the Unreserved category by virtue of his merit, by relaxing his age by three years in terms of the advertisement.
18. Accordingly, for the reasons discussed above, the petition is allowed with the direction to the respondent authorities to offer appointment to the petitioner against the lone unfilled post of Assistant Engineer which falls under the Unreserved category, by verifying his OBC status and the relevant certificates in terms of the direction made above. As far as the claim of the respondent No. 3 is concerned, this Court does not find any merit as the respondent No. 3 is a candidate who is placed below the petitioner in order of merit.
19. Petition is accordingly allowed as indicated above.
