VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR AGARWAL & ORS. ETC.

of regional or class inadequacy or like disadvantage. The A quantum of reservation should not be excessive or societally injurious, measured by the overall competency of the end- product viz. degree-holders. A host of variables influence the quantification of the reservation. But one factor deserves great emphasis. The higher the level of the speciality the B lesser the role of reservation. Such being the pragmatics and dynamics of social justice and equal rights, let us apply the tests to the case on hand."

54Copy pinpoint54. It hardly needs to be emphasised that the State has a legitimate and substantial interest in ameliorating or eliminating where feasible, the disabling effects of identified discrimination. It is a duty cast upon the c State, by the Constitution, to remedy the effects of "societal discrimination". Provision for relaxation in TET pass marks has to be looked into from this angle which is in tune with the constitutional philosophy. After all it only ensures that such candidates belonging to reserved category become eligible for appointment as primary teachers. D On the other hand, when it comes to selection process such reserved category candidates have to compete with general category candidates wherein due regard for merit is given. Therefore, only those candidates belonging to reserved catego1y who are found meritorious in selection are ultimately appointed. We are of the opinion that in.this manner the two constitutional goals, that ofrendering quality education on the one E hand and providing "equality of opportunity" to the unprivileged class on the other hand, are adequately met and rightly balanced.

55Copy pinpoint55. We, thus, do not agree with the interpretation that is given by the High Court and answer Question No. I holding that relaxation prescribed in letter dated March 23, 2011 in pass marks in TET F examination for different reserved categories mentioned therein is legal and valid in law. QUESTION NO; 3

56Copy pinpoint56. The policy decision was contained in letter dated May 11, 2011 G issued by the State Government thereby allowing migration ofreserved category candidates to general category who had secured better than general category candidates in recruitment examinations. This has been criticised by the High Court and held to be invalid on the ground that this was done by circular dated February 11, 2011 which was issued after H

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A the recruitment process started with the issuance of advertisement dated March 30, 2011 and, therefore, it was impennissible to change the nonns after the recruitment process had been initiated.

57Copy pinpoint57. In this behalf, the High Court has referred to Circular No. F- 7(2) DOP/A-Il/96 dated June 17, 1996 of the Government ofRajasthan B whereby decision was conveyed that the candidates belonging to SC/ST and OBC who gets selected fulfilling the conditions of eligibility regarding age limit and attempts prescribed for general candidates can be placed _on general merit list and those who get placement in the merit list as a result of special concession given to them in terms of age and attempts should not be considered as the general candidates but should be c considered against reserve vacancies. The High Court further noted that later circular No. F.7(1) DOP/A-2/99 dated March 04, 2002 issued on the same subject reiterated the aforesaid position. Yet again, vide Circular No. F.15(24) DOP/Ail/75 dated June 24, 2008, it was clarified that only those reserved category candidates who have not taken any D concessions (like that of age, etc.) can compete against non-reserved vacancies and be counted against them. It also clarified that women, persons with disabilities, sportspersons, in-servicemen are counted against their respective category, even if they are suitable for selection against non-reserved or open competition vacancy/post. However, if any remaining candidate of these categories after providing the vacancies/ E posts reserved for them are more meritorious than the last person of the open competition category, such candidate will be selected even if it leads to selection of more candidates than that provided by virtue of reservation. On the basis of the aforesaid circulars, the High Court commented that only those reserved category candidates were entitled to be migrated to general quota if they complete with availing any special concessions in terms of age, attempts and otherwise except concession regarding fee. However, this norm was changed by impugned Circular No. F. 7( 1)DOP/ A-11/99 dated May 11, 2011 which was issued in supersession of the earlier circular dated March 04, 2002 and permitted reserved category candidates to be counted against unreserved category vacancies if in the selection they had secured more marks than the marks obtained by the last unreserved category candidate who. is selected, irrespective of the fact that as to whether they avail special concessions or not. As pointed out above, the High Court has held that since this change in norms took place after the initiation of selection process vi de H

VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 683 AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

advertisement dated March 30, 2011, the circular dated May 11, 2011 A was not applied as the aforesaid move/amendment in selection norms was impermissible as held oy this Court in K. Manjusree v. State of Andlira Pradesh & Anr. 8

58Copy pinpoint58. The learned counsel appearing for reserved category candidates/appellants submitted that passing ofTET examination is just B one of the eligibility criteria and cannot be treated as part of the recruitment process and, therefore, cannot be counted as given relaxation or concession availed by the reserved category candidates. On that basis, it was sought to argue that even if circular dated May 11, 2011 is ignored, as per the policy contained in earlier circulars, those reserved category candidates who had secured more marks than the last candidate c selected in the general category, were entitled to be counted against unreserved category posts. It was also pointed out that insofar as recruitment process is concerned, weightage of 20% of TET marks was given in the final score. This flat weightage of20% ofTET marks given to all candidates irrespective of the categories to which they belong provided a level playing field. In this manner, those candidates who had secured more marks in TET were placed at advantageous positions by giving the said weightage. The other effect was that those candidates in reserved category who had secured less marks than 60% and became eligible to participate in the selection process by virtue of concession in the eligibility criteria ofTET pass marks, naturally got less marks under this head. Therefore, as far as recruitment process is concerned, no such benefit had accrued to the reserved category candidates. It was also argued that principle of estoppel would apply as the general category candidates did not challenge the recruitment process including the advertisement and filed the writ petitions only after they found themselves to be unsuccessful on declaration of the results of the recruitment. Reference in this behalf is made to the judgment in the case of Vijendra Kumar Verma v. Public Service Commission, Uttarakliand & Ors. 9 It was further pointed out that during the pendency of the matter before this Court, appointments were made by the respective local bodies with respect to recruitment of2012 giving relaxation in accordance with the G State policy dated March 23, 2011 and also allowing migration as per policy dated May I I, 2011 subject to the decision of this Court. The participants of reserved category candidates in recruitment process of '<2oos) 3 sec 512 '<201I)1sec150 H

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A 2012 and 2013 preferred SLP (C) No. 31109 of2014 wherein this Court issued notice and allowed the appellant Nos. 8 to 13 belonging to 2013 recruitment to file SLP. In March, 2015, result declared with regard to recruitment of 2013 giving relaxation in accordance with State policy dated March 23, 2011. However, appointments are not given to reserved category candidates availing relaxation although seats have been kept B vacant. Moreover, migration to general seats was not allowed. The appellants in SLP(C) No. 31109 of2014 belonging to 2013 recruitment, moved I.A. No. 14 of2015 seeking direction to the State to prepare merit list of 2013 recruitment in the same manner as done in 2012 recruitment giving benefit of relaxation and migration. In fact, after c 2011, TET was again conducted by the State in 2012. The reserved category candidates who had passed TET with relaxations in 2011 did not appear in 2012 TET since they were declared pass in 2011 TET itself. Otherwise, they would have availed the opportunity to improve their TET scores by appearing in TET in 2012.

59Copy pinpoint59. The learned counsel for the general category candidates, on the other hand, maintained that TET was a part of recruitment process and relaxation in passing marks in that examination amounted to giving concession to reserved category candidates and after availing such concession they were not entitled to migrate to general category. It was also submitted that insofar as decision of the State contained in letter dated May 11, 2011 is concerned, it was rightly held by the High Court that norms could not be changed after the selection process has started.

60Copy pinpoint60. Having regard to the respective submissions noted above,'first aspect that needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be so on the premise that para 9(a) dealing with such relaxation in TET marks fonns part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in guidelines/notification dated February 11, 2011. These guidelines pertain to conducting ofTET. Basic features whereof have already been pointed out above. Even para 9 which provides for concessions that can be given to certain reserved categories deals with H

VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 685 AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

'qualifying marks' that is to be obtained in TET examination. Thus, a A person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of B successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is marks in TET. So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally get less marks under this head. We like to demonstrate it with an example. Suppose a reserved c category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14 marks in recruitment process. Thus, D on the basis ofTET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, "level playing field" is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks. Thus, in recruitment process no weightage or concession is given and allocation E of20% ofTET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET.

61Copy pinpoint61. Once this vital differentiation is understood, it would lead to the conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of circular d'ated May 11, 2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc., except on fee and age. H

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62Copy pinpoint62. In Jitendra Kumar Singh & Anr. v. State of Uttar Pradesh & Ors. 10, this Court has very categorically held that relaxations given in educational qualifications etc. making a person eligible to participate in selection process would not be treated as availing benefits in the recruitment/employment and the benefits envisaged have to be those which have direct relation to recruitment/employment and are relatable B to the jovial relationship of employer and employee. It is also clarified that such benefits must occur from and should be post 'level playing field'. We would like to reproduce the following discussion from the said judgment touching upon the aforesaid aspects: "48. In view of the aforesaid facts, we are of the considered c opinion that the submissions ofthe appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list.

49. It is permissible forthe State in view ofArticles 14, 15, 16 and 38 of the Constitution oflndia to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution oflndia~ Concessions and relaxations in fee or age provided to tli_e reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be

H 1•<2010) J sec 119

VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 687 AGARWAL & ORS. ETC. [A. K. SIKRI, J.]

determined without any further concessions in favour of the reserved category candidates. xx xx xx

75. In our opinion, the relaxation iQ 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 oflndia. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the. concessions c are availed, the open competition has not commenced. It commences when all the candidates who fulfill 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." ·It is stated at the cost of repetiti9n that provision of giving 20% _ marks of TET score was applied to all candidates irrespective of the category to which he/she belongs and, therefore, no concession or relaxation or advantage or benefit was given in this behalf which could disturb the level playing field and tilt advantage in respect ofreserved category candidate. On the contrary, the reserved category candidates who had secured less marks in TET examination are given lesser marks in the recruitment process on the application of the formula of allocating 20% marks ofTET score. Question No. 3 is answered accordingly.· G

63Copy pinpoint63. These appeals are accordingly allowed in the manner indicating in this judgment, effect whereof would be as under: (a) Those reserved categofY candidates who secured pass marks on the application ofrelaxed standards as contained in the extant policy H

688 SUPREME COURT REPORTS [2016] 7 S.C.R.

A of the Government in its communication dated March 23, 2011 to be tre14ted as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the State Government. (b) Migration from reserved category to general category sh al 1be admissible to those reserved category candidates who secured more B 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. c All these appeals are disposed of accordingly. No order as to cost. Nidhi Jain Appeals disposed of.