Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3609 OF 2017

DEEPA E.V. APPELLANT(S)

VERSUS

UNION OF INDIA AND ORS. RESPONDENT(S)

J U D G M E N T

R. BANUMATHI, J.

1.This appeal arises out of the judgment of the

Kerala High Court in Writ Appeal No.827 of 2015 dated

20.07.2015 whereby the Division Bench affirmed the

order passed by the learned Single Judge.

2.The appellant applied for the post of Laboratory

Assistant Grade II in Export Inspection Council of

India functioning under the Ministry of Commerce and

Industry, Government of India. The appellant belongs

to Dheevara community which is one of the “Other

Backward Class”. Since the appellant was aged 26

years, she got age relaxation, as was granted to OBC

category candidates. The appellant was one of the

eleven candidates from OBC who were called for

interview. The appellant secured 82 marks (in the

list of candidates from OBC category). One Ms.

Serena Joseph (OBC), who secured 93 marks was

selected and appointed.

3.Insofar as the general category is concerned, no

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Page 2 candidate has secured the minimum cut off marks i.e.

70 marks. Stating that the appellant has to be

accommodated in the general category, she filed a

Writ Petition before the High Court, which the

learned Single Judge dismissed by judgment dated

16.1.2015. Being aggrieved, the appellant challenged

the same in Writ Appeal No.827 of 2015, which came to

be dismissed, which is impugned in this appeal.

4. The appellant, who has applied under OBC Category

by availing age relaxation and also attending the

interview under the 'OBC Category' cannot claim right

to be appointed under the General Category.

5.The recruitment by the Export Inspection Council

of India which is functioning under the Ministry of

Commerce, Government of India is governed by the

Export Inspection Agency (Recruitment) Rules, 1980.

As per Rule 9, the Rules regarding relaxation of age

limits and other concessions are to be governed by

the Rules and also the orders issued by the Central

Government from time to time in this regard. Rule 9

reads as under:-

“9. Saving:

Nothing in these rules affect

reservations, relaxation of age limit and

other concessions required to be provided

for the Scheduled Caste, Scheduled Tribes

and other special categories of persons

in accordance with the orders issued by

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Page 3 the Central Government from time to time

in this regard.”

6.Department of Personnel and Training had issued

proceedings O.M. No.36012/13/88-Estt. (SCT), dated

22.5.1989 and OM No.36011/1/98-Estt. (Res.), dated

1.7.1998 laying down stipulation to be followed by

the various Ministries/Department for recruitment to

various posts under the Central Government and the

reservation for SC/ST/OBC candidates. The

proceedings reads as under:-

“G.I. Dept. of Per. & Trg., O.M. No.

36012/13/88-Estt. (SCT), dated 22.5.1989

and OM No.36011/1/98-Estt. (Res.), dated

1.7.1998

“Subject:- Reserved vacancies to be

filled up by candidates lower in merit

or even by released standards-

candidates selected on their own

merits not to be adjusted against

reserved quota.

As part of measure to increase the

representation of SC/ST in the services

under the Central Government, the

Government have reviewed the procedure

for implementation the policy of

reservation while filling up reserved

share of vacancies for Scheduled Castes

and Scheduled Tribes by direct

recruitment. The practice presently

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Page 4 being followed is to adjust SC/ST

candidates selected for direct

recruitment without relaxation of

students against the reserved share of

vacancies. The position of such SC and

ST candidates in the final select list,

however, was determined by their

relative merit as assigned to them in

the selection process. When sufficient

number of suitable Scheduled Caste and

Scheduled Tribe candidates were not

available to fill up all the reserved

share of vacancies, SC/ST candidates

were selected by relaxed standards.

2.It has now been decided that in cases

of direct recruitment to vacancies in

posts under the Central Government, the

SC and ST candidates who are selected on

their own merit, without relaxed

standards along with candidates

belonging to the other communities, will

not be adjusted against the reserved

share of vacancies. The reserved

vacancies will be filled up separately

from amongst the eligible SC and ST

candidates which will thus comprise SC

and ST candidates who are lower in merit

than the last candidate on the merit

list but otherwise found suitable for

appointment even by relaxed standards,

if necessary.

3.All Ministries/Departments will

immediately review the various

Recruitment Rules/Examination Rules to

ensure that if any provision is contrary

to the decision contained in previous

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Page 5 paragraph exist in such rules, they are

immediately suitably modified or

deleted.

4.These instructions shall take

immediate effect in respect of direct

recruitment made hereafter. These will

also apply to selections where though

the recruitment process has started, the

result have not yet been announced

unless in the Examination/Recruitment

Rules or in the advertisement notified

earlier there is a specific provision to

the contrary and the manner in which the

SC/ST vacancies could be filled has been

indicated.

Clarification:- The instructions

contained in the above OM apply in all

types of direct recruitment whether by

written test alone or written test

followed by the interview alone.

2. The above OM and the O.M.

No.36012/2/96-Estt.(Res.), dated

2.7.1997 provide that in cases of direct

recruitment, the SC/ST/OBC candidates

who are selected on their own merit will

not be adjusted against reserved

vacancies. 3. In this connection, it

is clarified that only such SC/ST/OBC

candidates who are selected on the same

standards as applied to general

candidates shall not be adjusted against

reserved vacancies. In other words,

when a relaxed standard is applied in

selecting an SC/ST/OBC candidates, for

example in the age-limit, experience,

qualification, permitted number of

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Page 6 chances in written examination, extended

zone of consideration larger than what

is provided for general category

candidates, etc., the SC/ST/OBC

candidates are to be counted against

reserved vacancies. Such candidates

would be deemed as unavailable for

consideration against unreserved

vacancies.”

(Underlining added)

7.On a combined reading of Rule 9 of the Export

Inspection Agency (Recruitment) Rules, 1980 and also

the proceedings dated 1.7.1998, we find that there is

an express bar for the candidates belonging to

SC/ST/OBC who have availed relaxation for being

considered for General Category candidates.

8.Learned counsel for the appellant mainly relied

upon the judgment of this Court in Jitendra Kumar

Singh and Another v. State of Uttar Pradesh and

Others, reported in (2010) 3 SCC 119, which deals

with the U.P. Public Services (Reservation for

Scheduled Castes, Scheduled Tribes and Other Backward

Classes) Act, 1994 and Government order dated

25.3.1994. On a perusal of the above judgment, we

find that there is no express bar in the said U.P.

Act for the candidates of SC/ST/OBC being considered

for the posts under General Category. In such facts

and circumstances of the said case, this Court has

taken the view that the relaxation granted to the

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Page 7 reserved category candidates will operate a a level

playing field. In the light of the express bar

provided under the proceedings dated 1.7.1998 the

principle laid down in Jitendra Kumar Singh (supra)

cannot be applied to the case in hand.

9.Learned senior counsel appearing for the

respondents has also drawn our attention to paragraph

Nos.65 and 72 in Jitendra Kumar Singh (supra) to

contend that principle in Jitendra Kumar Singh

(supra) are in the context of interpretation of U.P.

Act 1994 and in the particular factual situation of

the said case. Paragraphs 65 and 72, read as under:-

“65. In any event the entire issue in

the present appeals need not be decided

on the general principles of law laid

down in various judgments as noticed

above. In these matters, we are

concerned with the interpretation of the

1994 Act, the Instructions dated

25.3.1994 and the G.O. dated 26.2.1999.

The controversy herein centres around the

limited issue as to whether an OBC who

has applied exercising his option as a

reserved category candidate, thus

becoming eligible to be considered

against a reserved vacancy, can also be

considered against an unreserved vacancy

if he/she secures more marks than the

last candidate in the general category.

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Page 8 72. Soon after the enforcement of the

1994 Act the Government issued

instructions dated 25.3.1994 on the

subject of reservation for Scheduled

Castes, Scheduled Tribes and other

backward groups in the Uttar Pradesh

Public Services. These instructions,

inter alia, provide as under:-

"4. If any person belonging to

reserved categories is selected on the

basis of merits in open

competition along with general

category candidates, then he will not

be adjusted towards reserved category,

that is, he shall be deemed to have

been adjusted against the

unreserved vacancies. It shall be

immaterial that he has availed any

facility or relaxation (like

relaxation in age limit)

available to reserved category."

From the above it becomes quite

apparent that the relaxation in age limit

is merely to enable the reserved category

candidate to compete with the general

category candidate, all other things

being equal. The State has not treated

the relaxation in age and fee as

relaxation in the standard for selection,

based on the merit of the candidate in

the selection test i.e. Main Written Test

followed by Interview. Therefore, such

relaxations cannot deprive a reserved

category candidate of the right to be

considered as a general category

candidate on the basis of merit in the

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Page 9 competitive examination. Sub-section

(2) of Section 8 further provides that

Government Orders in force on the

commencement of the Act in respect of the

concessions and relaxations including

relaxation in upper age limit which are

not inconsistent with the Act continue to

be applicable till they are modified or

revoked.”

10. Having regard to the observations in paragraphs

65 and 72, in our view, the principles laid down in

Jitendra Kumar Singh (supra) cannot be applied to the

case in hand. As rightly pointed out by the High

Court that judgment in Jitendra Kumar Singh (supra)

was based on the statutory interpretation of the U.P.

Act, 1994 and Government order dated 25.3.1994 which

provides for entirely a different scheme.

11.Be it noted, in the instant case, the appellant

has not challenged the constitutional validity of the

proceedings dated 1.7.1998 read with Rule 9 of the

Export Inspection Agency (Recruitment) Rules, 1980.

On a perusal of the prayer made in the writ petition

we find that the appellant has only sought for a

declaration that Exhibit P5 (proceedings dated

1.7.1998) is not binding on the appellant. No

argument was canvassed challenging the constitutional

validity of the proceedings before the learned Single

Judge or before the Division Bench of the High Court.

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Page 10 12.We do not find any merit in this appeal, which

is, accordingly, dismissed.

13.Pending applications, if any, shall stand

disposed of.

14.There shall be no orders as to costs.

.......................J.

[R. BANUMATHI]

.......................J.

[A.M. KHANWILKAR]

NEW DELHI;

APRIL 06, 2017.

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