Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. Considering similar embargo14 in the recruitment process, another Coordinate Bench in Gaurav Pradhan & Ors v. State of Rajasthan & Ors15, held general observations in Jitendra Kumar (supra) shall not come in aid of reserved candidates who have availed age relaxation to migrate to general category. The Bench observed as follows:- “32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25-3-1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24-6-2008.”
21. These views have been reiterated in Niravkumar Dilipbhai Makwana v. Gujarat Public Service Commission & Ors16 and affirmed by a three judge Bench in Government (NCT of Delhi) & Ors v. Pradeep Kumar & Ors17.
22. On the other hand, respondents-writ petitioners have relied on Vikas Sankhala & Ors v. Vikas Kumar Agarwal & Ors18, Saurav Yadav & Ors v. State of UP & Ors19, Ajithkumar P. & Ors. v. Remin K. R. & Ors20 and Sadhana Singh Dangi & Ors v. Pinki Asati & Ors21, to sustain the view of the High Court that the migration of the reserved candidate who has scored higher than the last selected unreserved candidate is permissible. Respondents-writ petitioners argue that a bar Para 6.2 of circular dated 24.06.2008 (2018) 11 SCC 352 (2019) 7 SCC 383 (2019) 10 SCC 120 (2017) 1 SCC 350 (2021) 4 SCC 542 (2015) 16 SCC 778 (2022) 12 SCC 401 [2025] 9 S.C.R. Union of India & Ors. v. Sajib Roy to migration would be in violation of the principles of equality under Article 14 and counter to maintenance of efficiency of administration enshrined under Article 335 of the Constitution.
23. In Vikas Sankhala (supra), the State government had relaxed the minimum pass marks in Teacher Eligibility Test22 by 10 percent to 20 percent for various reserved categories in the matter of recruitment of primary teachers. It was contended such relaxation was contrary to the extant reservation policy of the State and migration of such candidates who availed concession for recruitment to unreserved categories was illegal. Reserved candidates relied on a circular dated 11.05.2011 which permitted such migration. Holding that the said circular was issued after the recruitment process had commenced and migration was barred as per earlier circulars, the High Court held appointment of reserved candidates availing concession in qualifying marks in TET against unreserved seats was impermissible.
24. This Court analysed the concession given to reserved candidates with regard to qualifying marks in TET in the context of the recruitment rules which inter alia prescribed a uniform addition of 20 percent of TET marks to the final score of each candidate. Consequently, the reserved candidates who secured lesser marks in TET would not get any additional advantage vis-à-vis general candidates in computing the final scores irrespective of the lowering of the qualifying marks in TET. The Bench clarified this issue as follows:- “80. …..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 would like to demonstrate it with an example : Suppose a reserved 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 TET for short 554 recruitment process. Thus, on the basis of TET 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 of 20% of TET 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.”
25. In this backdrop, the Bench held irrespective of the applicability of circular dated 11.05.2011 relaxation in TET qualifying marks does not amount to a concession which would disentitle migration of reserved candidates against unreserved seats. The Bench opined:- “81. 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 the Circular dated 11-5-2011, 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.” It may also be apposite to note that the earlier circulars applicable to the selection process23 did not put a restriction on selection of the reserved candidate availing concession in TET marks for appointment in unreserved seats provided they scored higher than the last selected unreserved candidate. See Para 73 and 74 in Vikas Sankhala (supra) [2025] 9 S.C.R. Union of India & Ors. v. Sajib Roy
26. In Ajithkumar (supra) the issue which fell for consideration was the power of the recruiting authority to conduct a preliminary examination in order to shortlist candidates and not the right of a reserved candidate seeking relaxation to migrate to unreserved category.
27. In Saurav Yadav (supra) the issue which fell for decision was whether women OBC candidates could be adjusted against vacancies in the women general category. The case involved an interplay between vertical reservation and horizontal reservation for women. Lalit J., (as His Lordship then was) permitted the migration holding that the candidates in question had not availed of any special benefit which may disentitle them from being considered against general category seats:- “42. We must also clarify at this stage that it is not disputed that Applicant 1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in “Open/ General Category” and that they have not taken or availed of any special benefit which may disentitle them from being considered against “Open/General Category” seat. The entire discussion and analysis in the present case is, therefore, from said perspective.”
28. Supplementing this view, Ravindra Bhat J. held that:- “65. ….it is too late in the day for the respondent State to contend that women candidates who are entitled to benefit of social category reservations, cannot fill open category vacancies. The said view is starkly exposed as misconceived, because it would result in such women candidates with less merit (in the open category) being selected, and those with more merit than such selected candidates, (in the social/vertical reservation category) being left out of selection.”
29. However, such observations were premised on the fact that there was no rule, or direction which prohibited the adjustment of socially reserved categories of women in the general category or open category24. See Para 57 in Saurav Yadav (supra) 556
30. In Sadhana Singh Dangi (supra), the Court again looked into migration of women candidates availing horizontal reservation from reserved i.e. OBC category to unreserved category. The recruitment process permitted migration in vertical reservation but stated that the horizontal reservation for women is compartmentalised. Referring to the observations of Ravindra Bhat J. in Saurav Yadav (supra) the Bench reversed the decision of the High Court barring migration in horizontal category, observing as follows:- “22. It is true that the leading judgment in Saurav Yadav [Saurav Yadav v. State of U.P., considered the matter from a general plane but the concurring judgment authored by S. Ravindra Bhat, J. did additionally consider the issue from the perspective of absence of any statutory rules in the field. It is also true that in the instant case, there are rules occupying the field and the case would be a fortiori, but we need not enter into that arena as, in our view, the general propositions laid down in Saurav Yadav by themselves are sufficient to take care of the controversy which has arisen in the instant matters. 23. The law laid down in Saurav Yadav is very clear that even while applying horizontal reservation, the merit must be given precedence and that if the candidates who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. These observations in Sadhana Singh Dangi (supra) must be read in the factual matrix of the case which permitted migration of candidates in vertical reservation unlike the present case. 31. In Bharat Sanchar Nigam Limited & Anr. v. Sandeep Chaudhary & Ors25, the cut off marks was reduced for both OBC and general candidates and no special concession was given to OBC candidates. Under these circumstances, the Court permitted the OBC candidates who had scored higher marks than the last selected candidate in the general category to avail unreserved seats. (2022) 11 SCC 779 [2025] 9 S.C.R. Union of India & Ors. v. Sajib Roy 32. On an analysis of the aforecited cases, we summarise as follows: Whether a reserved candidate who has availed relaxation in fees/ upper age limit to participate in open competition with general candidates may be recruited against unreserved seats would depend on the facts of each case. That is to say, in the event there is no embargo in the recruitment rules/employment notification, such reserved candidates who have scored higher than the last selected unreserved candidate shall be entitled to migrate and be recruited against unreserved seats. However, if an embargo is imposed under relevant recruitment rules, such reserved candidates shall not be permitted to migrate to general category seats. 33. Accordingly, we hold as the respondents-writ petitioners had availed concession of age for participating in the recruitment process, in the teeth of office memorandum dated 01.07.1998, the High Court was wrong in applying the ratio in Jitendra Kumar (supra) and permitting them to be considered for appointment in the unreserved category. Consequently, we set aside the common impugned judgment and order dated 12.10.2018 and order dated 26.02.2019 and allow the appeals. Pending application(s) if any, stand disposed of. Result of the case: Appeals allowed. †Headnotes prepared by: Nidhi Jain