C/SCA/9608/2022 JUDGMENT DATED: 08/06/2022

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 9608 of 2022

With
R/SPECIAL CIVIL APPLICATION NO. 9048 of 2022
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 9048 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 8928 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9474 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9082 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9470 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9458 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9820 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9910 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9996 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-

================================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy No

of the judgment ?

4 Whether this case involves a substantial question No

of law as to the interpretation of the Constitution
of India or any order made thereunder ?

================================================================
JATINKUMAR KISHORKUMAR BHATT
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR RAJESH O GIDIYA(5222) for the Petitioner(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 1 so far as SCA Nos.9608/2022 and 9082/2022

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MR S P MAJMUDAR, for the Petitioner(s) IN REST OF THE PETITIONS.

Shri Kamal Trivedi, learned Advocate General with Ms. Manisha

Lavkumar Shah, learned Government Pleader assisted
respectively by Mr. Vinay Bairagra, learned AGP and Ms. Shruti
Pathak, learned AGP for the Respondent(s) No. 1,2
================================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 08/06/2022

COMMON ORAL JUDGMENT

1. Rule, returnable forthwith. Mr. Vinay Bairagra, learned AGP

and Ms. Shruti Pathak, learned Assistant Government

Pleaders waive service of notice of Rule for the respondent

– State.

2. With the consent of the learned advocates appearing for the

respective parties, these petitions are taken up for its final

disposal.

3. In all these petitions, under Article 226 of the Constitution of

India, the petitioners have prayed for a direction that the

action of the PSI Recruitment Board of including reserved

category candidates in the list of general category

candidates in the preliminary merit list of the preliminary

exams, for the purpose of appearing in the main

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examination for the post of PSI, Class III is unlawful and in

violation of Article 14, 15, 16 and 21 of the Constitution of

India. The petitioners have further prayed that a fresh merit

list of candidates for appearing in the main examination be

prepared by calling upon three times the candidates of each

category i.e. reserved category and general category to the

number of vacancies notified for each of the categories

without including candidates of the reserved category in

general category for the purposes of the said recruitment.

4. For the purposes of this judgment, the facts of SCA No.8928

of 2022 are considered.

4.1. An advertisement for the post of PSI, Class III

has been issued by the Recruitment Board on 15.3.2021

inviting online applications for the purpose of recruitment

to the post of PSI, Class III. A total of 1382 posts are to be

filled in. The petitioners are candidates who have

undergone the physical examination and the preliminary

examination and aspire to appear for the main

examination. It is their case that in accordance with Clause

16 of the advertisement, read with Rule 8(f) of the Posts of

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Sub Inspector, Class III (Combined, Competitive

Examination for Direct Recruitment) Rules, 2021 (for short,

hereinafter referred to as `the Rules’), the number of

candidates that are to be called for the purpose of

appearing in the main examination are three times the

candidates of each category i.e. reserved category and

general category to the number of vacancies notified.

5. The lead arguments have been made by Shri S. P.

Majmudar, learned counsel for the petitioners of SCA

No.8928 of 2022. He made the following submissions:

5.1. Inviting the Court’s attention to Clause 16 of the

advertisement Mr. Majmudar would submit that the Clause

indicating that for appearing in a main examination, three

times the candidates of each category have to be called.

5.2. Mr. Majmudar would then invite the attention of

the Court to the Rules and submit that in accordance with

Rule 8 the stages and mode of examination were physical

test, preliminary examination and main examination. He

would submit that for the purposes of preparing the final

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merit list, marks of the preliminary examination are not to

be considered for preparing the select list. The preliminary

examination is only a screening test and the marks of such

examination are therefore not to be added for counting

merit.

5.3. Relying on Rule 8(f) of the Rules in context of

Clause 16 of the advertisement, he would submit that the

candidates who passed the preliminary examination shall

be called for the main examination. The number of

candidates to be called for main examination shall be

about three times the number of vacancies requisitioned.

The minimum qualifying standard shall not in any case be

less than 40% of the marks in the preliminary examination.

5.4 Mr. Majmudar would submit that what the

respondents have done is that rather than calling three

times the number of candidates category wise, the

respondents have included candidates belonging to the

reserved category in the general category as well. In other

words, they have clubbed reserved category candidates

with general category candidates which will result in

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restricting large number of candidates of general category.

Secondly, the merit cut off for the reserved category has

become higher resulting into the exclusion of some of the

petitioners who belonged to the reserved category.

5.5 Mr. Majmudar would submit that even the GPSC

while preparing list of candidates qualifying to appear in

the main examination pursuant to the preliminary

examination would prepare the list wherein for the

vacancies notified for general candidates, only general

candidates are included without including candidates

belonging to the reserved categories. As a result of which,

when the cut off marks of the reserved category candidates

is higher than the general category candidates, cut off

marks of reserved category candidates is lowered down to

the cut off marks of general category candidates.

5.6 In other words, Mr. Majmudar would submit that

by clubbing together general and reserved categories

candidates together the respondents have applied the Rule

of Migration in preparing the merit list. He would submit

that the Rule of Migration, will apply only after the stage of

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main examination and not for the purposes of calling of

candidates at the preliminary examination stage. By

applying the Rule of Migration, what the respondents have

done is clubbing the reserved and general categories

together resulting in a lower number of candidates of the

general category and depriving other candidates of the

same category.

5.7 Mr. Majmudar would submit that applying the

Rule of Migration at the stage of preliminary examination,

which is purely for screening purposes and then applying

the same for main examination would amount to double

reservation. In support of his submission, Mr. S. P.

Majmudar would rely on a decision of the High Court of

Rajasthan in the case of Sunita Meena, d/o. Shri

Jagdish Prasad Meena v. Rajasthan High Court,

Jodhpur through its Registrar General (Civil Writ Petition

No.1244 of 2022) decided on 20.4.2022. Extensively

reading the relevant paras of the decision in context of the

scheme of examinations for the purposes of appointment of

Civil Judges, Mr. Majmudar would rely on the paragraphs

which would suggest that the Rule of Migration on the basis

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of merit from one category to another cannot apply at the

stage of preliminary examinations and can only be at the

stage of final examinations. He would submit that relying

on the past decisions of the Division Bench of the

Rajasthan High Court, the Court had held that migration is

not to be applied while short listing candidates for

interview / main examination after subjecting them to

screening test. It was held that the Rule of migration will be

applicable only at the time of final selection.

5.8 Mr. Majmudar would submit that the Rules are

in favour of the petitioners and they are not being correctly

applied and by applying Rule of Migration, the reserved

category candidates included in the merit category are

cutting into the seats of general category.

5.9 Mr. Majmudar also relied on a decision of the

Andhra Pradesh High Court in the case of S. Jaffer Saheb

and others v. State of Andhra Pradesh in writ

Petition No.7605/1984. He would rely on paragraph 11 of

the judgment of the Division Bench which held that the

purpose of holding a screening test is to ensure the basic

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standard of eligibility of the candidates and even at the

stage of admission to the main examination, the rule of

reservation of posts cannot be applied.

5.10. Mr. Majmudar also relied on a decision of the

Hon’ble Supreme Court of India in the case of Ravindra

Singh v. State of Chhattisgardh and others reported

in 2014(2) SCC 232 to submit that the question of law

whether Rule of Migration applies to preliminary exams is

kept open.

5.11. Mr. Majmudar would also submit that the

appointments were made on the principle and not on the

figures in the chart which was given at the stage of

argument.

6. For the State, the arguments were canvassed by Shri Kamal

Trivedi, learned Advocate General with Ms. Manisha

Lavkumar Shah, learned Government Pleader assisted

respectively by Mr. Vinay Bairagra, learned AGP and Ms.

Shruti Pathak, learned AGP.

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7. Shri Kamal Trivedi, learned Advocate General for the State

has made the following submissions:

7.1 Mr. Trivedi would submit that as is evident from

the advertisement, 1382 vacancies were notified for

Recruitment to the post of PSI, Class III. He would submit

that in accordance with the Rule, the Board is required to

call candidates about three times the number of vacancies

requisitioned. In other words, the figure three times of the

number 1382 would require the Board call 4146 candidates

for the purposes of the main examinations.

7.2 Mr. Trivedi would submit that the argument of

the learned counsel for the petitioners of the concept of

reserved categories and general categories is fallacious. He

would submit that what the petitioners have lost sight of is

that there is nothing like general categories and reserved

categories. There is concept known as the open category

where every candidate strictly in the context of merits and

the marks obtained is entitled to be considered. It is settled

that the term `general categories’ or `open categories’ or

`unreserved categories’ means a category open to all

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meritorious candidates, regardless of the fact that they

belong to the reserved categories. In support of his

submission, the learned Advocate General would rely on a

decision of the Supreme Court in the case of Bihari Lal

Rada v. Anil Jain (Tinu) and others reported in

2009(4) SCC, 1. He would rely on para 40 of the decision

to submit that general category means persons belonging

to all categories irrespective of their caste, class or

community or tribe. Reliance is also placed on the decision

in the case of Tammanaben Ashokbhai Desai v. Shital

Amrutlal Nishar reported in 2020 (SCC-On Line)

Gujarat, 2592. He would rely on paras 45 to 52 of the

decision to submit that there is no separate category like

general category. It is irrelevant whether the reservation

provided for is vertical or horizontal. There cannot be two

interpretations of the words “open categories.” Reliance

was also placed on the decision of the Supreme Court in

the case of Saurav Yadav and others v. State of Uttar

Pradesh and others reported in 2021 (4) SCC, 542.

Paras 23.10, 26 and 38 were pressed into service.

7.3 In support of his submission, Mr. Trivedi submits that

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the term “general category” cannot have two different

meanings at two stages i.e. one meaning at the time of

preliminary examination and different meaning at the time

of main examination.

7.4. Shri Trivedi relied on a decision in the case of

Niravkumar Dilipbhai Makwana v. Gujarat Public

Service Commission and others reported in 2019 (7)

SCC, 383. He pressed into service paras 7 to 10 and 34 of

the said decision.

7.5 Mr. Trivedi also relied on a decision of Madhya

Pradesh High Court in Writ Petition No.542/2021 dated

7.4.2022 where the amendment to the Rule which

restricted the rule of migration only at the time of final

selection was challenged and the amendment was set

aside on the ground that the same runs contrary to the

judgment of the Supreme Court in the case of Saurav

Yadav (Supra).

7.6. Mr. Trivedi would further submit that it is

erroneous for the petitioners to contend that the policy for

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reservation has not been followed. The policy of

reservation has been followed by excluding those

meritorious reserved categories candidates who have

availed the benefit of relaxation. The distinction between

the stage of preliminary examination and the stage of main

examination looses its significance in respect of the term

“open categories” as held by the Supreme Court in the

case of Nirav Makwana (Supra).

7.7. Reading the Rule namely Rule 8(f) of the Rules

Mr. Trivedi would submit that it is very clear that the

candidates who passed the preliminary examination shall

be called for the main examination. However, the proviso

indicates that the number of candidates to be called for the

main examination shall be about three times the number of

vacancies requisitioned or the number of all candidates

who passed the preliminary examination whichever is

lower. He would submit that the number of requisitioned

posts are 1382 and subject to merit three times the

number would be 4146 candidates are required to be

called.

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7.8 In support of his submission, the learned AGP

presented a chart before the Court explaining the scenario

as done by the Recruitment Board (Scenario 3) and as

suggested by the petitioners (Scenario 1). Referring to the

scenario 1 as claimed by the petitioners, he would submit

as under:

Scenario No.1:

(i) In this scenario, which is sought to be pressed by the

Petitioners, the Recruitment Board would not have to
consider reserved category candidates in General
category, though meritorious.

(ii) For example, in case of General Male, 424 seats are

required to be filled and hence, as per Rule 8(f) of the
Examination Rules, 3 times the said posts, i.e. 1272
candidates are required to be called for
MainExamination. In such manner, the Recruitment
Board would have to consider only top 1272 General
Male candidates, not the reserved candidates, which
would make the cut off marks in this category to 51.25
marks. However, those candidates who have equal
cut off marks are also to be considered and therefore,
instead of 1272 candidates, 1286 candidates have to
be called for Main examination.

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(iii) Similarly, in the SC male category, the Recruitment

Board would have to consider only top 147 SC male
candidates, which would make the cut off marks in this
category to 71.25 marks.

(iv) However, when the cut-off marks of General Male

category would be 51.25, and cut-off marks of SC Male
category would be 71.25, the cut-off marks of SC Male
category would be required to be lowered down to
51.25, so as to match with the Cut-off marks of General
Male category.

(v) Once the cut off marks are revisedin all the categories,
then as per the revised cut off marks, the Recruitment
Board may have to call additional 19637 candidates
and in all 23783 candidates for MainExamination.
Pertinently, the total advertised posts are only 1382.
Thus, 23783 candidates would be 17 times the
number of advertised posts (23782 candidates ÷ 1382
posts), which would be against the mandate in Rule 8(f)
(pg.38) of the Examination Rules.

Compromise on Merit:

The said exercise of Scenario No.1, as sought by the

Petitioner, would also lead to compromise on meritsof
the candidates, inasmuch as, in Scenario No.1, all those
Male candidates who have scored above 51.25 marks
would have to be called for MainExamination, whereas in
the Scenario No.3, as followed by the Recruitment Board,

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the “cut-off marks” in all the categories are much higher

as compared to the “revised cut-off marks”in Scenario
No.1.

Thus, Scenarios No.3 complies with the mandate of 3 times

the advertised posts and at the same time, without
comprising on merit of such candidates.

8. And in accordance with the Scenario as per the Recruitment

Board (Scenario 3) he would submit as under:

Scenario No.3 (As done by the Recruitment Board):

(i) In this scenario, the Recruitment Board has also considered

‘meritorious reserved candidates’, who have not availed of
any relaxation in terms of age and physical standards, in
‘General Category’.

(ii) For example, in case of General Male, 424 posts are to be

filled and hence, as per Rule 8(f) of the Examination Rules, 3
times the said posts, i.e. 1272 candidates, are required to be
called for Main Examination. Hence, the Recruitment Board
considered top 1272 meritorious male candidates,
irrespective of their castes. The last candidate of the above
list of 1272 meritorious male candidates is having 75.00
marks and hence, cut off marks in this category have been
fixed at 75.00. However, those candidates who have equal
cut off marks are also required to be considered and
therefore, instead of 1272 candidates, 1286 candidates are
called for Main examination.

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(iii) Similarly, in the SC Male category, 49 seats are to be filled

and hence, as per Rule 8(f) of the Examination Rules, 3
times the said posts, i.e. 147 candidates are required to be
called for Main Examination. Hence, from the remaining
students, the Recruitment Board considered top 147 SC
male candidates. The last candidate of the above SC Male
select list of 147 candidates is having 68.50 marks and
hence, cut off marks in this category were fixed at 68.50.
However, those candidates who have equal cut off marks are
also to be considered and therefore, instead of 147
candidates, 160 candidates are called for Main examination.

9. The chart so furnished is reproduced as under:

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SCENARIO-1
(As Claimed by the Petitioners)
No. of
Sr. 3 Times
Category Advertised
No. to Select Total
Post No. of
Revised Canidadates to
Cut-off Additional
Cut-off be called for
Candidates
mains exam

1 General Male 424 1272 51.25 51.25 12 1284

2 General Female 191 573 40.00 40.00 7 580
3 EWS Male 94 282 75.75 51.25 2759 3041
4 EWS Female 43 129 59.75 40.00 543 672
5 SEBC Male 247 741 75.25 51.25 11231 11972
6 SEB Female 110 330 61.25 40.00 2543 2873
7 SC Male 49 147 71.25 51.25 1478 1625
8 SC Female 22 66 59.25 40.00 435 501
9 ST Male 137 411 56.25 51.25 389 800
10 ST Female 65 195 48.00 40.00 240 435
TOTAL 1382 4146 19637 23783

Note:

(1) As per the Examination Rules, 3 times the no. of advertised post are
considered from each of the categories

(2) Cut-off marks of each reserved category is levelled down to match the
cut-off marks of general category

(3) In this scenario, additional 19637 candidates (i.e. 17 times) may have
to be considered, which will be against the Examination Rules

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SCENARIO-2
(Consideration of
meritorious candidates
irrespective of category)

Total
Candidates to
Cut-off
be called for
mains exam

240
25
854
26
2554
67.75
107
261
13
64
2
4146

Note:

(1) In this scenario, top 4146 candidates i.e. three times the no.of
advertised posts are considered in order of merit, irrespective of their
categories

(2) Thus, this would breach the requirement of 3 times the no. of
advertised posts.

(3) In this scenario, only 173 female candidates as against 1293, would be
called for main examination.

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SCENARIO-3
(As per the result published by the Recruitment
board)

Additional
Candidate Total Candidates
3 Times
Cut-off Selected due to be called for
selected
to equal mains exam
mark

75.00 1272 14 1286

61.25 573 9 582
70.50 282 13 295
54.25 129 3 132
71.00 741 37 778
56.50 330 8 338
68.50 147 13 160
55.25 66 0 66
56.25 411 9 420
47.25 195 0 195
4146 106 4252

Note:

(1)In general category, all meritorious candidates are considered having

not obtained any relaxation in terms of age & physical measurement
standards

(2) Candidates from respective reserved categories have been selected

three times the no. of advertised posts of respective categories.

(3) Additional candidates having equal marks at cut-off standard are also
included in the result

10. Mr. Trivedi, learned Advocate General in context of the

Division Bench decision in the case of Sunita Meena

(Supra) would submit that the said judgment merely follows

the earlier judgment of the Rajasthan High Court including

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the judgment in the case of Garima Sharma which has

been stayed by the Apex Court vide its order dated

31.8.2018.

11. In rejoinder, Mr. Majmudar, learned counsel for the

petitioners would submit that none of the judgments cited

by the learned Advocate General would be applicable. He

would submit that the case of Bihari Lal Rada (Supra) was

in context of reservation in Election matters.

12. The case of Tammana Ben (Supra) and Saurva Yadav

(Supra), nowhere deal with the issue of Rule of Migration in

the context of preliminary examination and they deal with

only the concept of reservation in final merit.

13. Even the judgment in the case of Nirav Makwana (Supra)

would not apply in the facts of the case.

14. Having considered the submissions of the learned advocates

for the respective parties, what needs to be considered is

whether, in calling 4146 candidates for the main

examination which are scheduled on 12.6.2022 (three times

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of the number of notified vacancies being 1382) have the

respondents followed the Rule of Migration. Is the

preparation of the merit list of candidates of the preliminary

examinations in consonance with the Rules read with the

relevant clause of the advertisement. Clause 16 of the

advertisement when read and translated would read thus:

“The minimum qualifying standard for the preliminary

examination would be 40%. All those candidates who
have obtained 40% marks or those candidates based
on merit, three times in number, category wise
whichever is lower will be called for main
examination.”

15. The relevant rules for the purposes of answering the issue

are Rule 8, in particular Rule 8(f), Rule 12, Rule 17 and Rule

18 which read as under:

“ Rule 8. Stages and Mode of examination :-

(a) The examination shall be held in the

following manner, namely (I) Physical Test (Physical
Efficiency Test and Physical Standard Test) (II)
Preliminary Examination (III) Main Examination

(b) The Board shall, after receiving the

applications from the candidates, scrutinize the
applications with respect to eligibility of the
candidates in accordance with these rules and shall
allow the eligible candidates to appear in the Physical
Test.

(c) Physical Test shall be conducted as specified in

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Appendix II.

(d) The candidates who pass the Physical Test shall

be called for Preliminary Examination Provided that
the number of candidates called for the Preliminary
Examination shall be about fifteen times the number
of vacancies requisitioned or the number of all the
candidates who have passed the Physical Test,
whichever is lower.
(e) The Preliminary Examination shall be
conducted as specified in Appendix III.
(f) The candidates who pass the Preliminary
Examination shall be called for Main Examination
Provided that the number of candidates to be called
for Main Examination shall be about three times the
number of vacancies requisitioned or the number of
all the candidates who pass the Preliminary
Examination, whichever is lower.
(g) The Main Examination shall be conducted as
specified in Appendix IV.
(h) The candidates who appear in the Main
Examination shall be called for document verification
based on the aggregate marks obtained by the
candidates in the Physical Efficiency Test, Main
Examination and the marks obtained as per Appendix
V. Provided that the number of candidates called
for document verification shall be about twice the
number of vacancies requisitioned.

Rule 8(f). Stages and Mode of examination :-

(f) The candidates who pass the Preliminary
Examination shall be called for Main Examination
Provided that the number of candidates to be called
for Main Examination shall be about three times the
number of vacancies requisitioned or the number of
all the candidates who pass the Preliminary
Examination, whichever is lower.

12. Qualifying Standard and marks :-

The Board shall fix the qualifying standard for
Preliminary Examination and Main Examination for
the candidates of non-reserved categories and
separately for candidates belonging to reserved

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categories. However, the minimum qualifying

standard that may be determined by the Board shall
not in any case be less than 40 per cent of marks in
Preliminary Examination and Main Examination.

17. Procedure for preparation of select list and

order of preference :-

(1) The final result shall be prepared by the Board in

the order of merit on the basis of aggregate marks
finally awarded to the candidate in the Physical Test,
Main Examination and weightage of additional marks
as specified in Appendix V, specifying their names,
seat numbers and total marks obtained by the
candidates and the same shall be caused to be
published on the notice board and/or on the official
website of the Board. The copy of the result so
published shall be sent to the Government in Home
Department, and to the Director General and
Inspector General of Police.

(2) The Board shall call the candidates individually as

per their merit in the manner as decided by the
Board.

(3) The candidate shall be required to give, at the

time of document verification in his own handwriting,
the order of preferences for the posts as specified in
Appendix I to which he desires to be considered for
appointment, in the manner as may be prescribed by
the Board:

Provided that, the preferences once given by the

candidate shall be treated as final and no request for
revision, or change in the preference shall be
entertained by the Board.

(4) The candidate who belongs to the reserved

category and selected on his own merit but does not
get the concerned post of his choice/preference
according to merit order and if the post of concerned
reserved category is available of his choice as a
reserved candidate, then such candidate shall be

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allocated to that post against such reserved post.

Such reserved post shall be treated as filled up post
against the reservation quota of such category.

(5) The Board shall in the first instance, prepare the

list for general category candidates and then,
prepare a list for the candidates belonging to
reserved category of Scheduled Castes, Scheduled
Tribes, Socially and Educationally Backward
Classes(Including Nomadic Tribes and Denotified
Tribes) and Economically Weaker Sections, to the
extent of the number of vacancies requisitioned.

(6) Where the candidate has not given preference for

any post, or the candidate has given preference only
for a few posts and the number of posts for which he
has given preference are not available to
accommodate the candidate as per his preference,
such candidate shall be considered for appointment
to any of the remaining posts after the process of
appointment to the other candidates, who have given
their preference for all the posts specified in
Appendix I, is completed.

(7) The appointment of the candidate to a particular

post shall be subject to the fulfilment of the
provisions of recruitment rules as in force relating to
that post.

(8) Where the candidate has been appointed to a

particular post, no request shall be entertained by
the Controlling authority for a change of appointment
to another post.

(9) The board shall prepare the list on meritorious

basis, according to reservation policy of the
Government prevailing in time.

18. Preparation of select list :-

(1) The Board shall prepare a select list in accordance

with rule 17 in the order of merit on the basis of
aggregate marks finally awarded to each candidate

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to the extent of the number of vacancies

requisitioned.

(2) The Board shall also prepare a list of successful

candidates belonging to the Scheduled Castes,
Scheduled Tribes, Socially and Educationally
Backward Classes(Including Nomadic Tribes and
Denotified Tribes), Economically Weaker Sections,
Women, Disabled Persons (as per the Government
orders) and Ex-Servicemen, to the extent of the
number of vacancies reserved for such categories
and requisitioned.”

16. Reading Rule 8 would indicate that the stages of the

examination are physical tests, preliminary examinations

and main examinations. Rule 8(f) provides that the

candidates who passed the preliminary examinations shall

be called for the main examinations. The number of

candidates to be called for the main examinations shall be

about three times the number of vacancies or all the

candidates who passed the preliminary examinations

whichever is lower. Apparently and unduly large number of

candidates have appeared for the physical tests and the

preliminary examinations. By virtue of the operation of Rule

8(f) therefore of the notified 1382 vacancies, three times

that number, being 4146 candidates need to be called for

the main examinations. True it is that on a conjoint reading

of Rule 12, 17 and 18 it is evident that the final merit is

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prepared based on the marks awarded for the physical test

and the main examination, but what needs to be seen is

whether the respondents in preparing the merit list of

candidates who appeared in the preliminary examinations

have done so in consonance with clause 16 read with Rule

8(f). Essentially, what needs to be engaging the Court in its

quest to elicit an answer is whether in preparing the list of

4146 candidates to be called for the main examinations,

have the respondents misinterpreted the rules and / or

whether the Rule of Migration is applied in the context of

preliminary examinations contrary to the position of law.

17. It is at this stage that, at the cost of repetition, the tabular

statement produced by the State needs to be reproduced as

under:

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SCENARIO-1
(As Claimed by the Petitioners)
No. of
Sr. 3 Times
Category Advertised
No. to Select Total
Post No. of
Revised Canidadates to
Cut-off Additional
Cut-off be called for
Candidates
mains exam

1 General Male 424 1272 51.25 51.25 12 1284

2 General Female 191 573 40.00 40.00 7 580
3 EWS Male 94 282 75.75 51.25 2759 3041
4 EWS Female 43 129 59.75 40.00 543 672
5 SEBC Male 247 741 75.25 51.25 11231 11972
6 SEB Female 110 330 61.25 40.00 2543 2873
7 SC Male 49 147 71.25 51.25 1478 1625
8 SC Female 22 66 59.25 40.00 435 501
9 ST Male 137 411 56.25 51.25 389 800
10 ST Female 65 195 48.00 40.00 240 435
TOTAL 1382 4146 19637 23783

Note:

(1) As per the Examination Rules, 3 times the no. of advertised post are
considered from each of the categories

(2) Cut-off marks of each reserved category is levelled down to match the
cut-off marks of general category

(3) In this scenario, additional 19637 candidates (i.e. 17 times) may have
to be considered, which will be against the Examination Rules

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SCENARIO-2
(Consideration of
meritorious candidates
irrespective of category)

Total
Candidates to
Cut-off
be called for
mains exam

240
25
854
26
2554
67.75
107
261
13
64
2
4146

Note:

(1) In this scenario, top 4146 candidates i.e. three times the no. of
advertised posts are considered in order of merit, irrespective of their
categories

(2) Thus, this would breach the requirement of 3 times the no. of
advertised posts.

(3) In this scenario, only 173 female candidates as against 1293, would be
called for main examination.

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SCENARIO-3
(As per the result published by the Recruitment
board)

Additional
Candidate Total Candidates
3 Times
Cut-off Selected due to be called for
selected
to equal mains exam
mark

75.00 1272 14 1286

61.25 573 9 582
70.50 282 13 295
54.25 129 3 132
71.00 741 37 778
56.50 330 8 338
68.50 147 13 160
55.25 66 0 66
56.25 411 9 420
47.25 195 0 195
4146 106 4252

Note:

(1) In general category, all meritorious candidates are considered having

not obtained any relaxation in terms of age & physical measurement
standards

(2) Candidates from respective reserved categories have been selected

three times the no. of advertised posts of respective categories.

(3) Additional candidates having equal marks at cut-off standard are also
included in the result

18. For instance, for the category of general male, the number

of posts advertised is 424. The number of candidates to be

called for the mains, at three times, would come to 1272. As

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pointed out by the learned Advocate General Shri Kamal

Trivedi, in comparison to the “scenario 3” as per the result

published by the Recruitment Board in the category of

General Male, 1272 candidates called for the mains is in

accordance with the provisions of Rule 8(f).

18.1. Rule 8(f) provides clearly that when it comes to

choosing the number of candidates to be called for the

preliminary examinations, especially when a large number

of candidates have appeared, the number lower in the

present case i.e. only a figure three times the number of

vacancies have to be called. If all general category male

candidates three times the number have to be called, as

suggested by the petitioners i.e. 1272 general male, the

cut off marks in this category would be 51.25 marks.

Considering the category of SC male, 147 top SC male

would have to be considered making the cut off marks in

this category to 71.25 marks. Since the cut off marks for

general male category would be 51.25 lower than 71.25 for

the SC male, the cut off for SC male would have to be

lowered to 51.25. What is demonstrated from the “scenario

1” as claimed by the petitioners once the cut off is revised

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in all categories with the benchmark of 51.25 of the

General male, the number of additional candidates to be

called for the main examinations would be 19637 and,

therefore, in all 23788 candidates will have to be called for

main examinations for a total posts of 1382 which would be

against the mandate of Rule 8(f) of the examination Rules.

19. When the chart showing the perception and the result of the

Recruitment Board is seen, it is apparent that the category

wise three times the number as canvassed by the

petitioners when read in consonance with Rule 8(f) is

maintained. The defence of the State is that while calling

1272 meritorious male candidates it has considered merit

with a cut off fixed at 75 marks. Those candidates who have

equal cut off marks are also considered and called. Hence,

1286 are called for the main examinations. So also in the SC

male category for the 49 seats to be filled in, 147 SC male

candidates are requested to be called. The cut off marks of

the last SC male was 68.50, hence, based on the cut off 160

candidates are called for the main examinations.

19.1. Whether calling for three times the number in each

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category as worked out by the Board is contrary to law is

the question that needs to be answered.

20. Apparently from the Chart, if the working out of the Board is

considered than the mandate of the Rule is complied with,

inasmuch as, demonstrated three times the number

category wise has been called based on the number of

vacancies in each category. From the submissions of the

learned Advocate General and the context of how the Board

has worked out the working of such number in each

category would indicate the raving of the Bar. The cut off as

worked out on the basis of the petitioners (scenario 1) would

show the cut off as 51.25 for general male which has

substantially gone upto 75 as per the working of the State.

The apprehension of the petitioners that this has resulting in

hiking up the merits standard and the inclusion of the

meritorious reserved candidates in the figure of 1272 cuts

into the seats of general candidates and amounts to

clubbing of the two categories and, therefore, double

reservations needs to be considered based on the law laid

down by the Courts, especially the Apex Court.

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20.1. Obviously also a fact needs to be noted that

with an unduly large number of candidates appearing for

the preliminary examinations and keeping in mind the

object of the screening test which is to eliminate unduly

large number of persons to appear for the main

examinations if more candidates are called by declaring

the results as conceived by the petitioners, the object of

Rule 8(f) would be frustrated. The argument on behalf of

the State is that policy of reservation has not been given a

go-bye and the concept of reservation in tandem with merit

has been followed keeping in mind that as per the Rules

when qualifying standards are same for the preliminary

examinations and the main examinations, then, there is no

separate category like General Category and Reserved

Category and persons belonging to all categories as Open

Category candidates are called and find their place on the

list who are otherwise qualified.

20.2. The Apex Court in the case of Bihari Lal Rada

(Supra), albeit, in the context of elections, however, has

explained the concept of “Open Categories.” Para 40 and

41 of the decision read as under:

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“40. Be that as it may, neitherArticle 243Tof the

Constitution norSection 10(5) of the Haryana
Municipal Act provide for any reservation to the office
of the President in favour of any candidate who does
not belong to Scheduled Caste or Backward Class.
Obviously there cannot be any such reservation of
seats in Municipalities nor to the office of Chairperson
in favour of candidates belonging to general
category. There is no separate category like general
category. The expression belonging to the general
category wherever employed means the seats or
offices earmarked for persons belonging to all
categories irrespective of their caste, class or
community or tribe. The unreserved seats
euphemistically described as general category seats
are open seats available for all candidates who are
otherwise qualified to contest to that office.

41. The word `General' derived from Latin word

genus.

It relates to the whole kind, class, order. Pertaining to

or designating the genus or class, as distinguished
from that which characterizes the species or
individual; universal, not particularized, as opposed
to special; principal or central, as opposed to local;
open or available to all, as opposed to select;
obtaining commonly, or recognized universally, as
opposed to particular; universal or unbounded, as
opposed to limited; comprehending the whole or
directed to the whole, as distinguished from anything
applying to or designed for a portion only. Extensive
or common to many.
(See Black's Law Dictionary, Sixth Edition).”

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20.3. Keeping merit as the foremost principle in mind

and also the mandate of the Rules, all meritorious

candidates regardless of the fact that they belong to

reserved categories or non-reserved categories have been

called. In the case of Nirav Kumar Makwana (Supra),

the question for consideration before the Hon’ble Supreme

Court was whether a candidate who has availed of any age

relaxation in the selection process as a result of belonging

to a reserved category can thereafter seek to be

accommodated in / or migrated to the general category

seat?

21. Learned counsels for the petitioners would want this Court to

overlook the question of law decided in it on the ground that

the question therein was regarding the State’s policy by

Circulars which stated that those reserved category

candidates who had not availed of any relaxation in age,

experience, qualification, number of chances etc. will be

adjusted in open category and, therefore, the reliance by the

State on the decision was misplaced. Though the reference

was in context of age relaxation, the Apex Court held that

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the distinction sought to be drawn between the preliminary

and the main examinations was totally misconceived. Para

34 of the decision in the case of Nirav Makwana (Supra)

reads as under:

“34. There is also no merit in the submission of the

learned counsel for the appellant that relaxation in
age at the initial qualifying stage would not fall foul of
the circulars dated 29.01.2000 and 23.07.2004. The
distinction sought to be drawn between the
preliminary and final examination is totally
misconceived. It is evident from the advertisement
that a person who avails of an age relaxation at the
initial stage will necessarily avail of the same
relaxation even at the final stage. We are of the view
that the age relaxation granted to the candidates
belonging to SC/ST and SEBC category in the instant
case is an incident of reservation under Article 16(4)
of the Constitution of India.”

21.1. Rule 12 of the Rules under consideration before

this Court permits the Board to fix the qualifying standard

for the preliminary examinations and the main

examinations for the candidates of the respective

categories but it further specifies that the minimum

qualifying standard that may be determined shall not in

any case be less than 40% of the marks in the preliminary

examinations and main examinations. Therefore, there

cannot be two different meanings of the term “General

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Category,” one at the time of preliminary examinations and

a different meaning at the time of main examinations.

21.2. The decision of this Court in the case of

Tammana Ben (Supra), as referred to and confirmed by

the Apex Court in the case of Saurav Yadav (Supra)

dealing with the concept of horizontal and vertical

reservations and adjustment of meritorious reserved

candidates deals with the concept of “Open Category” as

led down in the case of Bihari Lal Rada (Supra).

22. The decision dated 7.4.2022 of the Madhya Pradesh High

Court of the Division Bench in the case of Kishor

Chaudhary v. State of Madhya Pradesh passed in Writ

Petition No.542 of 2022 was filed by the petitioners for

declaration that the amendment to Rule 4(3)(ii) in the

Madhya Pradesh State Examination Rules be declared as

ultravires to Articles 14, 15 and 16 of the Constitution of

India as well as against the aims and object of the

reservation policy. In the ongoing recruitment process, after

the preliminary examinations were held on 12.1.2020, the

State, on 17.2.2020 brought out an amendment. The Rules

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provided that candidates of the reserved categories would

get selected like general category candidates without any

relaxation shall not be adjusted against the posts reserved

for those reserved categories. They shall be adjusted against

vacancies of unreserved categories. An amendment brought

in stipulated that such adjustment will only be at the time of

final selection, not at the time of preliminary / main

examinations.

22.1. The contention was that this became a hurdle

for the reserved category candidates as it is well settled

that if a reserved category candidates received more or

equal marks qua an unreserved category candidate, he will

secure berth in unreserved category and he cannot be

treated as a reserved category candidate. The impugned

amendment will therefore prevent this settled principle of

law in preliminary examination and main examination. The

Division Bench of the Madhya Pradesh considering the law

laid down by the Apex Court set aside the amendment

holding that the principles enunciated by the Hon’ble

Supreme Court can be translated into reality only when

reserved category candidate secured equal mark or more

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can be given berth in unreserved category at all stages of

selection including preliminary and the main examination.

Any other interpretation will repeat the purpose and the

constitutional scheme flowing from Articles 14 and 16 of

the Constitution of India. The relevant paras of the decision

of the Madhya Pradesh High Court Kishor Chaudhary

(Supra) reads as under:

“6. Thus, sub-section (4) of Section 4 became a

hurdle for the reserved category candidates. This is
well settled that if a reserved category candidate
received more or equal marks qua UR category
candidate, he will secure birth in UR category and he
cannot be treated to be a reserve category
candidate. The respondents in preliminary
examination and main examination are not
implementing this settled principle in view of the
impugned amendment in Examination Rules dated
17.2.2020.

33. Constitutionality of Rule 4(3)(d)(III) of

Examination Rules, 2015:-

As noticed, this amended Rule became part of statute

book w.e.f. 17.02.2020. Before dealing with this
amended Rule, it is profitable to consider the
unamended Rule, the impugned Rule amended w.e.f.
17.02.2020 and another amendment dated
20.12.2021. The relevant provisions are reproduced
hereinunder in tabular form to examine the
provisions in juxtaposition.

Unamended Rules 2015 Amendment 17.2.2020

Amendment 20.12.2021

4. Mode of preparation of

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select list -
(1) (a) (i) On the basis of marks obtained in
Preliminary Examination, candidates numbering 15
times the vacancies as advertised categorywise will
be declared successful for Main examination subject
to the condition that candidates have scored
minimum passing marks as may be specified by the
Commission. In addition to this, all the other
candidates who get marks equal to “Cut Off Marks”
will also be declared successful for the main
examination.

(ii) Firstly, a list of Candidates of unreserved category

shall be prepared. This list will include the candidates
selected on the basis of the common merit from
Scheduled Castes,

(d) (I) Results of Preliminary/Main Examination, the

candidates shall be declared in the category
mentioned as their category in their online
application form.

(II) Candidates of reserved category ( Scheduled

caste/ Scheduled Tribe ? Other Banckwards Classes/
Economically Weaker Section) who get selected like
general category cadidates without any relaxation
shall not be adjusted against the posts reserved for
those reserved categories. They shall be adjusted
against vacancies of unreserved category.

(III) But above adjusment will only be at the time of

final sleection, not at the time of preliminary/ main
examination.

4. In Rule 4 sub rule (3) for clause (a) the following

clause shall be substituted, namely :-

(3) (a) (i) After the interview, the merit list of the
candidates shall be prepared by the Commission on
the basis of the total marks obtained by them in the
main examination and interview. The order of merit
of the candidates securing equal marks shall be

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determined as per the criteria prescribed by the

order of the Commission.

(ii) First of all, a list of unreserved category (which

includes Scheduled Castes, Scheduled Tribes, Other
Backward Classes and Economically Weaker
Sections) shall be prepared. After this, those
candidates belonging to the reserved category
(Scheduled Castes, Scheduled Tribes, Other
Backward Classes and Economically Weaker
Sections) included in the unreserved category (which
also includes Scheduled Castes, Scheduled Tribes,
Other Backward Classes and Economically Weaker
Sections) who have taken the benefit of relaxations
from time to time, shall be included in the respective
category by separating them from the list of
unreserved category.

Scheduled Tribes and Other Backward Classes, who

have not taken any advantage/relaxation given to the
concerned category.

(iii) Secondly, separate lists of Scheduled Castes,

Scheduled Tribes and Other Backward Classes will be
prepared.

(iii) Secondly, separate lists of candidates belonging

to Scheduled Castes, Scheduled Tribes and Other
Backward Classes and Economically Weaker Sections
shall be prepared.

A comparative reading of main Rule and two

subsequent amendments above makes it clear that
as per main unamended Rule, the meritorious
reserved category candidate was entitled to compete
with U.R. category candidates and get his position in
Open/UR Category. By impugned amendment dated
17.2.2020, this right was taken away by confining the
benefit at the time of final selection only. By
subsequent amendment, dated 20.12.2021, the
earlier position prevailing at the time of unamended
Rules was restored. Thus, impugned amendment

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became a hurdle for the meritorious reserved

category candidates to be treated as U.R./Open
Category Candidate.

34. The impugned amendment dated 17.02.2020, as

per the argument of Shri Bernard, learned Additional
Advocate General was necessitated in view of
Division Bench order passed in the case of Vishal Jain
(supra). On a minute scrutiny, we do not find any
merit in this contention that the judgment of Vishal
Jain (supra) can become a reason for amendment in
the Rules with effect from 17.02.2020. A careful
reading of order of Vishal Jain (supra) leaves no room
for any doubt that this matter was decided after
commencement of Rules of 2015. The Court did not
consider the impact of the Rules, if read with Sub-
section (4) of Section 4 of the Adhiniyam. In other
words, Examination Rules of 2015 were not brought
to the notice of the Division Bench in the case of
Vishal Jain (supra). In absence thereof, principle of
Hemraj Rana’s case was followed by the subsequent
Bench. We find substance in the argument of Shri
Vinayak Shah, learned counsel for the petitioner that
in absence of considering the statutory Rules
(Examination Rules of 2015), the judgment of Vishal
Jain (supra) cannot become reason for introducing
the impugned amendment. For yet another reason,
we are unable to accept the reason assigned for
amendment w.e.f. 17.02.2020. The Apex Court in the
case of Indra Sawhney (supra) ruled that:-

‘811. In this connection it is well to remember that

the reservations under Article 16(4) do not operate
like a communal reservation. It may well happen that
some members belonging to, say, Scheduled Castes
get selected in the open competition field on the
basis of their own merit; they will not be counted
against the quota reserved for Scheduled Castes;
they will not be counted against the quota reserved
for Scheduled Castes; they will be treated as open
competition candidates.’

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[Emphasis Supplied]

The ratio decidendi of Indra Sawhney (supra) is

followed in R.K. Sabharwal v. State of Punjab (1995) 2
SCC 745, Union of India and others v. Virpal Singh
Chauhan and others (1995) 6 SCC 684 and recently
in Saurav Yadav v. State of U.P., (2021) 4 SCC 542 it
is held as under:

“I would conclude by saying that reservations, both

vertical and horizontal, are method of ensuring
representation in public services. These are not to be
seen as rigid “slots”, where a candidate’s merit,
which otherwise entitles her to be shown in the open
general category, is foreclosed, as the consequence
would be, if the state’s argument is accepted. Doing
so, would result in a communal reservation, where
each social category is confined within the extent of
their reservation, thus negating merit. The open
category is open to all, and the only condition for a
candidate to be shown in it is merit, regardless of
whether reservation benefit of either type is available
to her or him.”

(Emphasis Supplied)

35. Needless to emphasize that law laid down by

Apex Court in the case of Indra Sawhney (9 Judges
Bench) is binding on all the Courts and Authorities
throughout India. This binding judgment was
consistently followed by the Supreme Court in catena
of judgments.

45. The respondents could not assign any justifiable

reason or establish any rationale object/purpose for
bringing impugned amendment dated 17.02.2020.
Similarly, they could not establish the nexus between
the object sought to be achieved and the impugned
amendment. Thus, the impugned amendment dated
17.02.2020 cannot be given a stamp of approval.
Since, it runs contrary to the binding precedent of
Indra Sawhney (supra) consistently followed till

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Saurav Yadav (supra), the impugned amendment

cannot sustain judicial scrutiny. By no stretch of
imagination, withstanding a Nine Judges Bench
judgment of Supreme Court in Indra Sawhney
(supra), it was open to the Government to amend the
Examination Rules contrary to the principles laid
down in Indra Sawhney (supra) under the garb of
order of Division Bench of this court in Vishal Jain
(supra). Moreso when in Vishal Jain (supra), the
Examination Rules of 2015 were not brought to the
notice of this Court.

We are of the considered view that the principles laid

down by the Supreme Court in Indra Sawhney (supra)
can be translated into reality only when reserved
category candidate secured equal or more marks
with U.R. category candidate is given birth in U.R.
category in all stages of selection including
preliminary and the main examination. Any other
interpretation will defeat the purpose and the
constitutional scheme flowing from Article 14 and 16
of the Constitution of the India. There is no justifiable
reason for depriving a meritorious reserved category
candidate who has competed with UR category
candidate and secured same or more marks than him
from being treated as U.R. candidate.

The matter may be examined through a different

magnifying glass.

As per the judgment of Indra Sawhney (supra), the

reserve category candidate equal / more meritorious
qua UR category candidate deserves a birth in UR
category. Thus, such reserved category meritorious
candidate merges in the class of UR category
because of his own merits. Depriving such candidate
from the fruits of securing a birth in UR category
results into dividing a homogeneous class of
meritorious candidates. The Artificial classification
which is outcome of impugned rule is arbitrary,
discriminatory and violative of equality clause
enshrined in Article 14 of the Constitution. The

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meritorious reserve category candidates cannot be

put to a comparative disadvantageous position
because of their birth mark if they are otherwise
equal or more meritorious than the last UR category
candidate. The impugned Amended Rule, for no valid
reasons deprives such reserved category candidate
and, therefore, the impugned Rule deserves to be
declared as ultra vires. We accordingly declare Rule 4
(3) (d) (III) of the Amended Rules as
unconstitutional.”

23. As far as the decision of the Division Bench of the Rajasthan

High Court in the case of Sunita Meena (Supra) is

concerned, it has been decided on the basis of the decision

of Division Bench of the Rajasthan High Court, of the past

including that of Garima Sharma (Supra) which is stayed

by the Apex Court. Even otherwise, the Division Bench of the

Madhya Pradesh High Court keeping in line with the law laid

down by the Apex Court has taken the view that the

principle of merit would apply at all stages of selection and

therefore in the opinion of this Court, the same is applicable

and binding.

23.1. The Division Bench of the Rajasthan High Court

in the case of Sunita Meena (Supra) considered the

decision of the Hon’ble Supreme Court in the case of

Chhatar Singh and others v. State of Rajasthan and

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others reported in (1996) 11 SCC 742. The case before

the Hon’ble Supreme Court was a case where the Scheme

of providing for relaxation of the percentage of cut off

marks for SC / ST candidates made unavailable to OBC

candidates was under consideration and was held to be

valid and, therefore, did not deal with the rule of migration

as canvassed by the learned counsel for the petitioners.

24. For the aforesaid reasons, all these petitions stand

dismissed. Rule is discharged. No costs.

ORDER IN CIVIL APPLICATION (FOR JOINING PARTY)

NO. 1 OF 2022 IN SPECIAL CIVIL APPLICATION

NO.9048 OF 2022:

25. Heard learned Senior Advocate Mr. G.M. Joshi assisted by Mr.

N.P. Chaudhary, learned advocate for the applicant for

joining the party and perused the present application.

26. For the reasons stated in the application, the present

application is allowed in terms of paragraph No.14(B).

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SCA Nos. 9608 and 9082 of 2022:

27. Rule, returnable forthwith. Mr. Vinay Bairagra, learned AGP

and Ms. Shruti Pathak, learned Assistant Government

Pleaders waive service of notice of Rule for the respondent

– State.

28. With the consent of the learned advocates appearing for the

respective parties, both these petitions are taken up for its

final disposal.

29. These petitions also have been filed by the category of ex-

servicemen for a direction to the respondents to include the

petitioners in the list of successful candidates to the posts of

PSI pursuant to the advertisement issued by the respondent

– Board.

30. The short issue as argued by Mr. R.O. Gidiya, learned

counsel for the petitioners is that the advertisement

provided for 10% reservation for ex-servicemen in

consonance with the Gujarat Civil Services (Reservation of

Vacancies for ex-servicemen in Class-III and Class-IV Posts

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and Service) Rules, 1975. He would submit that in

accordance with the Rules of the 1382 vacancies notified

138 ex-servicemen ought to have been called for the main

examination and calling only 59 candidates is contrary to

the provisions of law.

31. Learned counsel for the petitioners placed reliance on the

decision of the Division Bench of this Court in the case of

Alpesh Surendrasinh Rathod v. State of Gujarat

reported in 2021(2) GLR 881. He would submit that it is

laid down by the Division Bench of this Court that non-

granting of reservation to the extent of 10% for ex-

servicemen would be contrary to the Rules and rather than

called 59 candidates, 138 candidates be called for.

32. Ms. Manisha L. Shah, learned Government Pleader assisted

by Ms. Shruti Pathak, learned AGP for the respondent – State

would draw the attention of the Court to the affidavit-in-

reply filed on behalf of the State. She would submit that the

challenge by the petitioners to the exclusion of the names of

candidates beyond the number 59 is misconceived. She

would rely on Rule 6(A) of the Recruitment Rules which

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stipulates that in the case of direct recruitment, if sufficient

number of candidates belonging to the ex-servicemen is not

available on the basis of general standard to fill all the

vacancies reserved for them, candidates belonging to the

category of ex-servicemen may be selected under the

relaxed standard of selection to make up the deficiency in

the reserved quota subject to the condition that such

relaxation will not affect the level of performance of such

candidates.

33. Reiterating the submissions made on behalf of the

Government in the aforesaid group of petitions and

considering the pattern of examination, she would

demonstrate that the qualifying marks for each category,

the cut off marks was as under:

General EWS SC ST SEBC Total

Cut-off for 75.00 90.50 68.50 56.25 71.00 -
Male
Candidate
Cut-off for 61.25 54.25 55.25 47.25 56.50 -
Female
candidate
Cut-off for 60.00 56.40 54.80 45.00 56.80 -
Ex-
servicemen
No. of Ex- 34 4 3 2 16 59
servicemen

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She would, therefore, submit that sufficient relaxation by

reducing the cut off marks has been granted and the

petitioners do not fall within the merit and, therefore, there

is no breach of the Rseservation Rules. Even otherwise, as

far as the decision of the Division Bench is concerned even

that was at the stage of document verification.

34. This Court, in the earlier part of this judgment has

extensively considered the concept of “Open Category” in

the context of “Reserved Category” and the preparation of

the merit list for the preliminary examination in accordance

with the Scheme of the Rules, particularly, Rule 8(f) in light

of the decisions referred too in the aforesaid judgment.

35. From the perusal of the chart reproduced hereinabove, what

therefore is indicative is that even on the relaxation of cut

off marks for the purposes of ex-servicemen, only 34

General category, 4 EWS, 3 SC, 2 ST and 16 of SEBC ex-

servicemen obtained qualifying marks.

36. As has been held by this Court hereinabove, the State has

evolved the concept of merit while considering the policy of

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reservation in context of the law laid down by the Apex

Court in the case of Saurav Yadav (Supra) as considered

by the Madhya Pradesh High Court for the reasons in

addition thereto as set out in the decision of the group of

petitions in earlier part of this judgment, both these petitions

stand dismissed. Rule is discharged. No order as to costs.

Sd/-
[ BIREN VAISHNAV, J. ]
VATSAL S. KOTECHA

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