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2026 DAILYLAW 4223 (ALL)

Vivek Yadav v. State of U. P.

2026-02-01

Subhash Vidyarthi

body2026
JUDGMENT : SUBHASH VIDYARTHI, J. 1. Earlier, the petitioners had filed Writ-A No.13466 of 2025, in which the respondents have filed a short counter affidavit. However, during submissions, the opposite parties placed reliance upon the office memorandum dated 09.01.2020 whereupon Writ-A No.13466 of 2025 was withdrawn by the petitioner on 30.01.2026, with liberty to file a fresh petition. Accordingly, this petition has been filed by them on 31.01.2026 and it has been placed before this Court in furtherance of an order passed by the Hon'ble Chief Justice keeping in view the urgency pointed out by the learned counsel for the petitioners that the petitioners have secured marks higher than the unreserved candidates in preliminary examination but they are not being allowed to participate in the mains exam scheduled to be held on 02.02.2026. 2. Heard Shri Santosh Kumar Yadav Warsi Senior Advocate assisted by Shri Krishan Kanhaya Pal Advocate, the learned counsel for the petitioner, Shri Rahul Shukla, the learned Additional Chief Standing Counsel for the State of U.P. representing the opposite parties no.1, 2 and 3, Shri Ayush Chaudhary, the learned counsel for the opposite party no.4- State Election Commission and Shri R.K. Upadhyaya and Shri Ravi Shankar Tiwari, the learned counsel for the opposite party no.5. 3. By means of the instant Writ Petition, the petitioner has challenged the validity of a notification/office memorandum dated 19.01.2020 (Annexure No.19 to the writ petition) issued by U.P. Public Service Commission providing that only those candidates of reserved category securing marks higher than than the minimum cut-off marks obtained by the unreserved candidates, will be adjusted against unreserved seats, who have not availed the benefit of any relaxation in eligibility conditions for reserved category candidates. Otherwise, the candidate will remain in their respective categories till final selection. The petitioners have also sought issuance of a writ of mandamus commanding the opposite parties to call candidates for the mains written examination in the ratio of 15:1 vacancies specified in the advertisement with reference to the total number of advertised vacancies, instead of making such computation with reference to post under individual departments and without ignoring the number of candidates who are treated as being qualified on several occasions with regard to post of individual department. The petitioners have also sought writ of mandamus commanding the opposite parties to finalize the selection process for candidates belonging to other backward class after taking into account the specified quota of reservation of 27 person in terms of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 with reference to the total number of advertised vacancies pertaining to individual departments. 4. U.P. Public Service Commission had issued an advertisement dated 09.10.2023 for making selections for appointments to the post of Sameeksha Adhikar/Sahayak Sameeksha Adhikari (Review Officer, Assistant Review Officer) in the U.P. Civil Secretariat, Board of Revenue, Public Service Commission and Election Commission. 5. In furtherance of the advertisement, a preliminary examination was held on 27.07.2025. The petitioners have participated in the preliminary examination. 6. Learned counsel for the petitioners has submitted that the petitioners have secured marks higher than the minimum marks obtained by the unreserved category candidates in preliminary examination and, therefore, the petitioners are entitled to appear in the mains examination against unreserved seats. 7. The learned counsel for the petitioners has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Rajasthan High Court and Anr. v. Rajat Yadav and Ors. /b>. Civil Appeal No. 14112 of 2024 decided on 19.12.2025 ( 2025 INSC 1503 ) and a judgment rendered by a Division Bench of this Court in the case of U.P. Power Corporation v. Nitin Kumar and Ors. (2015) 5 ADJ 417 . 8. Learned counsel for the petitioners have submitted that unreserved category is not a category reserved for candidates belonging to reserved category. Unreserved category is open for all the candidates in spite of category under which they have applied. 9. Learned counsel for the petitioners has further submitted that except for the petitioner No.4, the petitioners have not availed the benefit of relaxation of eligibility standards as reserved category candidate but this submission is not supported by any pleading in the writ petition 10. 9. Learned counsel for the petitioners has further submitted that except for the petitioner No.4, the petitioners have not availed the benefit of relaxation of eligibility standards as reserved category candidate but this submission is not supported by any pleading in the writ petition 10. Per contra the learned counsel for the opposite parties have submitted that in furtherance of the direction contained in the office memorandum dated 09.01.2020, a condition has been put in the advertisement dated 09.10.2023 bearing Condition No.22 of “Important Instructions for Candidates”, which provides that “The candidates of reserved categories will be adjusted against the unreserved category in the final selection only if he/she has not availed any benefit/concession in qualifying standard at the stage of preliminary/mains examination”. 11. Learned counsel for the opposite parties have submitted that there is no pleading in the entire writ petition that the petitioners have not availed any benefit/concession in qualifying standard. The petitioner no. 4 is aged 45 years and apparently, he has availed the benefit of relaxation of age as a reserved category candidate. Therefore, the petitioners are not entitled to be adjusted against unreserved seats so as to enable them to appear in the mains examination. 12. The learned counsel for the opposite parties have placed reliance upon the judgments of the Hon'ble Supreme Court in the case of Neerav Kumar Dileep Bhai Makuana , (2019) 7 SCC 383 and Union of India v. Sajib Roy , 2025 SCC OnLine SC 1943. 13. Although the issue involved in the present case requires a serious and thorough deliberation, which can only be done after the parties are permitted to complete the pleadings but since the learned counsel for the petitioners is pressing for deciding the application for interim relief keeping in view the grave urgency in the matter, as the main examination is scheduled to be held tomorrow i.e. on 02.02.2026, the Court is proceeding to decide the interim relief application on the basis of material that is available before this Court at this stage. 14. The provisions of the impugned office memorandum dated 09.01.20220 and condition No.22 of the “Important Instructions for Candidates” contained in the impugned advertisement have already been referred to above. 15. 14. The provisions of the impugned office memorandum dated 09.01.20220 and condition No.22 of the “Important Instructions for Candidates” contained in the impugned advertisement have already been referred to above. 15. Learned counsel for the U.P. Public Service Commission has submitted that the office memorandum has been issued in exercise of the powers conferred under Section 11 of the U.P. Public Service Commission (Regulation of Procedure) Act, 1985, which provides as follows:- “11. Rule making Power:- 1.The Commission may make rules not inconsistent with the provisions of this Act for the Regulation of its procedure. 2. The Commission may, if it thinks fit in the public interest, direct that the said rules or any part thereof shall not be published.” 16. Learned counsel for the opposite parties have submitted that the petitioners have participated in the selection process without challenging the condition No.22 of the “Important Instructions for Candidates” contained in the advertisement. Having participated in the selection process without challenging the aforesaid condition, the petitioners are stopped from challenging the validity of the condition as well as the office memorandum on the basis whereof the condition was put in the advertisement. Before proceeding to examine with the judgments relied on by the learned counsel for the parties, it would be proper to have a look in the provision contained in Section 3(6) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, which provides as follows: - “(6) If a person belonging to any of the categories mentioned in sub- section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against me vacancies reserved for such category under sub-section (1)” 17. In U.P. Power Corporation Ltd. v. Nitin Kumar , 2015 SCC OnLine All 8611, a Division Bench of this Court held that:- “8. Section 3(6) is a statutory recognition of the principle that if a candidate belonging to a reserved category is selected on the basis of merit in open competition with general candidates, such a candidate is to be adjusted not against the vacancies reserved for the reserved category to which the candidate belongs but against the unreserved seats. Section 3(6) is a statutory recognition of the principle that if a candidate belonging to a reserved category is selected on the basis of merit in open competition with general candidates, such a candidate is to be adjusted not against the vacancies reserved for the reserved category to which the candidate belongs but against the unreserved seats. This proceeds on the foundation that where a candidate is meritorious enough to be placed within the zone of selected candidates independent of any claim of reservation and purely on the basis of the merit of the candidate, the candidate ought not to be relegated to a seat against the reserved category. The simple reason for this principle is that reservation is a process by which a certain number of posts, or seats is carved out for stipulated categories such as OBC, Scheduled Castes and Scheduled Tribes. Unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserved categories. An unreserved post or seat is one in which every individual irrespective of the category to which the person belongs can compete in open merit. Hence, the principle which is embodied in Section 3(6) is not confined in its application only at the stage when the final select list is to be drawn up. If the submission of the appellants were to be accepted, that would result in seriously absurd consequences. As the learned single Judge noted, in the present case itself, the petitioners who belong to the OBC category had in fact secured higher marks in the written test than the last short-listed candidate from the unreserved category. However, they were sought to be excluded from short- listing for the unreserved posts only on the ground that as a candidate who had declared himself or herself to be of a reserved category, that candidate would have to be excluded from shortlisting from the unreserved category even if on the basis of the position in merit, such a candidate would otherwise fall in the list of short-listed candidates in the open or unreserved category. Such a consequence would not be permissible in law.” 18. Such a consequence would not be permissible in law.” 18. The question of any Notification / Office Memorandum providing that only those candidates of reserved category securing marks higher than than the minimum cut-off marks obtained by the unreserved candidates, will be adjusted against unreserved seats, who have not availed the benefit of any relaxation in eligibility conditions for reserved category candidates, otherwise, the candidate will remain in their respective categories till final selection, was not involved in the case of Nitin Kumar (Supra) and there was no condition in the appointment in that case providing that the candidates of reserved categories will be adjusted against the unreserved category in the final selection only if he/she has not availed any benefit/concession in qualifying standard at the stage of preliminary/mains examination. Therefore, the facts of the present case are different from the facts of Nitin Kumar (Supra). 19. In Rajasthan High Court v. Rajat Yadav , 2025 SCC OnLine SC 2931, the Hon’ble Supreme Court held that: - “45. … a candidate would be estopped from challenging a selection process post-participation, unless he can show that despite due diligence, he could not have known earlier of the illegality in the procedure that came to be adopted or that the procedural flaw striking at the root of the selection process was hidden and surfaced only after completion of the process of selection; hence, no challenge could have been laid by him prior to his participation in the process.” 20. The Hon’ble Supreme Court noted that in the case of Rajat Yadav (Supra), there was no indication in the advertisement that meritorious reserved category candidates would not be treated as General/Open category candidates even if they outscore the latter. However, in the present case, Clause 22 of the “Important Instructions For candidates” published in the advertisement clearly mentions that “The candidates of reserved categories will be adjusted against the unreserved category in the final selection only is he/she has not availed any benefit / concession in qualifying standard at the stage of Preliminary / Main Examination”. The petitioners did not challenge this condition and they participated in the selection process. It is only when they have not been declared to be successful in the preliminary examination, that they have filed the Writ Petition and this condition has not been challenged even in the Writ Petition. The petitioners did not challenge this condition and they participated in the selection process. It is only when they have not been declared to be successful in the preliminary examination, that they have filed the Writ Petition and this condition has not been challenged even in the Writ Petition. There is no pleading in the Writ Petition that the petitioners have not availed any benefit / concession in qualifying standard. Therefore, the petitioners are not entitled to be granted any interim relief permitting them to participate in the main written exam scheduled to be held tomorrow, i.e. on 02.02.2026. 21. In Rajasthan High Court v. Rajat Yadav (Supra), the Hon’ble Supreme Court further held that: - “55. More recently, in Deepa E.V. v. Union of India, (2017) 12 SCC 680 , this Court elucidated an important qualification to the principle enunciated in Jitendra Kumar Singh (supra). This Court held that should the governing statutory rules or executive instructions provide for an express bar that candidates belonging to the Scheduled Caste, Scheduled Tribe or Other Backward Classes, having availed any relaxation or concession, shall not be adjusted against unreserved vacancies, such express bar would have primacy. The instructive passages from the decision are set out below: “4. The appellant, who has applied under OBC category by availing age relaxation and also attending the interview under the “OBC category” cannot claim right to be appointed under the General category. *** 8. The learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh v. State of U.P. (2010) 3 SCC 119 , which deals with the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Government Order dated 25-3-1994. On a perusal of the above judgment, we find that there is no express bar in the said U.P. Act for the candidates of SC/ST/OBC being considered for the posts under general category. In such facts and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate a level playing field. In the light of the express bar provided under the proceedings dated 1-7-1998 the principle laid down in Jitendra Kumar Singh cannot be applied to the case in hand.” 56. In such facts and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate a level playing field. In the light of the express bar provided under the proceedings dated 1-7-1998 the principle laid down in Jitendra Kumar Singh cannot be applied to the case in hand.” 56. At this stage, it is necessary to clarify that the present case stands on a different footing from the principles of law discussed above. No such concession or relaxation has been extended to the petitioning candidates and the controversy before us is confined to a narrower question, namely, whether a candidate belonging to a reserved category, who has secured marks higher than the cut-off for the general category in the preliminary/screening stage, is to be treated as having qualified against an open or unreserved vacant post, or whether such candidate must necessarily be confined to the reserved category alone. *** 68. In a two-tier process, as in the present case, we wish to illustrate how, generally, the exercise of screening/short-listing of candidates (belonging to General/Open, Scheduled Caste or Scheduled Tribe or Other Backward Class, etc., categories) with five times the number of vacancies in each category, who would literally be gaining the ‘pass’ to reach the second tier to participate in the typewriting test on computer can be conducted without complaints of unfairness and non-transparency in the process. Say, 100 vacancies in the General/Open category are notified and a similar number for the reserved categories is also notified. Five times the number of vacancies would mean not more than 500 candidates can be screened/shortlisted for the General/Open category. At the outset, based on the performance of the candidates who take the written test, the recruiting authority has to screen/short-list the candidates to be included in the General/Open category and subsequently for reserved categories. Judicial notice can be taken that this exercise is often facilitated by preparing a broad-sheet, also called a short-list, containing names of all the candidates (who acquit themselves successfully in the written test). For the preparation of the short-list for the General/Open category, candidates are first arranged strictly in descending order of merit and, thereafter, candidates falling short of the cut-off for such category figure in descending order of merit according to their respective reservation category in separate short-lists. For the preparation of the short-list for the General/Open category, candidates are first arranged strictly in descending order of merit and, thereafter, candidates falling short of the cut-off for such category figure in descending order of merit according to their respective reservation category in separate short-lists. If any candidate, say ‘C’, being the member of a Scheduled Caste or Scheduled Tribe or Other Backward Class, outscores the candidates not belonging to any reserved category in the written test, he/she shall be included in the short-list for the General/Open category. At this stage, there is no question of any migration; merit is the only criterion amongst all candidates who have to be seen as belonging to General/Open category. Once ‘C’ gains the ‘pass’ for the second-tier process and qualifies in the typewriting test on computer obtaining marks in excess of the requisite marks, his/her marks obtained in such test would be required to be added to the marks obtained in the written test. Once again, a broad-sheet has to be prepared based on cumulative scores containing names of all the candidates in order of highest to lowest marks with the more meritorious candidates, obviously, figuring at the top. Preparation of this broad-sheet is a handy tool for drawing up the final merit list of candidates. From the broad-sheet, names of candidates drawn up in order of merit with candidates ranked according to their marks in descending order, commonly called the Combined Merit List, ought to reflect where each one of the aspiring candidates stand on merit. If ‘C’ figures within the first 100 candidates in order of merit, i.e., the number of vacant posts for the General/Open category, he/she shall be counted as a General/Open candidate for the purpose of appointment. Here too, there is no question of migration for the reason we have already indicated above, i.e., merit being the only criterion and not caste/tribe/gender, etc. If ‘C’ does not figure in the first 100 candidates and whilst preparing the merit list of reserved category candidates it is found that he/she figures within the specified number of vacancies in the reserved category to which he/she belongs and which can be filled up by appointing him/her, he/she ought to be counted as a candidate of such reserved category for appointment. If ‘C’ fails to figure in the merit list for the reserved category list as well, question of his/her appointment would not arise. 69. We, however, sound a note of caution that our observations above are relatable to the selection process of the kind under consideration. It has not been shown with reference to the recruitment rules that the same ordain otherwise. If, at all, the recruitment rules governing any selection process ordain otherwise than what is observed above, obviously the recruitment rules would have precedence subject to the condition that such rule passes the test of constitutionality.” 22. As has already been noted above, there is no pleading in the Writ Petition that the petitioners have not availed any benefit / concession in qualifying standard and apparently, the petitioner no. 4, who is aged 45 years, has availed the benefit of age relaxation for reserved category candidates. Further, the Office Memorandum dated 09.01.2020 clearly provides that only those candidates of reserved category will be adjusted against unreserved seats who have not availed the benefit of relaxation of any eligibility condition and this condition put in the Office Memorandum has also been published in the Advertisement in clause 22 of the Important Instructions for the candidates. Therefore, the facts of the present case are different from the facts of Rajat Yadav (Supra). 23. In Niravkumar Dilipbhai Makwana v. Gujarat Public Service Commission , (2019) 7 SCC 383 , the Hon’ble Supreme Court held that:- “22. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time. 23. In the instant case, the State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21-1-2000 and 23-7-2004. 23. In the instant case, the State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21-1-2000 and 23-7-2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age-limit, experience, qualification, permitting number of chances in the written examination, etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post. 24. Now, let us consider the judgment in Jitendra Kumar Singh v. State of U.P., (2010) 3 SCC 119 . In this case, this Court was considering the interpretation of sub-section (6) of Section 3 of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short “the 1994 Act”) and the Government Instructions dated 25-3-1994. Sub-section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes which is as under: “3. (6) If a person belonging to any of the categories mentioned in sub- section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1).” 25. The State of U.P. issued Instructions dated 25-3-1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Groups in the Uttar Pradesh Public Services. Last line of these instructions is as under: “It shall be immaterial that he has availed any facility or relaxation (like relaxation in age-limit) available to reserved category.” 26. On consideration of sub-section (3) of Section 6 of the 1994 Act and the Instructions dated 25-3-1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of the 1994 Act and the Instructions dated 25-3-1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh has no application to the facts of the present case. 27. This judgment was based on the statutory interpretation of the 1994 Act and the Instructions dated 25-3-1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh has no application to the facts of the present case. 27. In Deepa [Deepa E.V. v. Union of India, (2017) 12 SCC 680 ], the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings OM dated 22-5-1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Para 3 of the said OM is as under: “3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies.” 28. The judgment in Jitendra Kumar Singh, was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh was based on the statutory interpretation of the U.P. Act, 1994, and the G.O. dated 25- 3-1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh cannot be applied to the said case. 29. Similar question arose in Gaurav Pradhan v. State of Rajasthan, (2018) 11 SCC 352 . In this case the Government had issued Circular dated 24-6-2008, which is as under: “Circular dated 24-6-2008 6.2. In the State, members of the SC/ST/OBC can compete against non- reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment….” 30. In this case the Government had issued Circular dated 24-6-2008, which is as under: “Circular dated 24-6-2008 6.2. In the State, members of the SC/ST/OBC can compete against non- reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment….” 30. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh has to be read in the context of statutory provisions and the G.O. dated 25-3-1994 and the said observation cannot be applied in a case where the government orders are to the converse effect. It was held as under: “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.” 31. The judgments in Deepa and Gaurav Pradhan fully support the case of the respondents.” 24. In Union of India v. Sajib Roy , 2025 SCC OnLine SC 1943, the Hon’ble Supreme Court held that: - “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. 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.” 25. In Union of India v. G. Kiran , 2026 SCC OnLine SC 22, the Hon’ble Supreme Court followed the decision in the case of Sajib Roy (Supra) and held that if a candidate who has resorted a relaxation at any stage of examination, would not fall within the list of candidates selected on ‘General Standard’ claiming General Insider vacancy of home state cadre as insider candidate. 26. When we examine the facts of the present case in light of the law laid down in the above referred judgments, it appears that the petitioners have applied for selection as reserved category candidates. There is no plea that they have not taken the benefit of relaxation of standard as reserved category candidates. One of the petitioner's i.e. petitioner No.4, is aged 45 years and, therefore, it is apparent that he has availed the benefit of relaxation of upper age limit. 27. Learned counsel for the petitioner has also fairly conceded that the petitioner No.4 has taken benefit of relaxation of eligibility standards and he also admits that there is no plea in the entire petition that the other petitioners have not taken the benefit of relaxation of standards as reserved category candidate. 28. The learned counsel for the petitioner has vehemently argued that the learned Counsel for the opposite parties should not be permitted to advance submissions on a point which has not been pleaded in the petition, when they are not denying that the petitioners have not availed the benefit of any relaxation in eligibility conditions. This submission is wholly misconceived as in absence of any plea taken by the petitioners that the other petitioners have not availed the benefit of relaxation of standards, there is no occasion for the opposite parties to deny a fact which has not been asserted by the petitioner. This submission is wholly misconceived as in absence of any plea taken by the petitioners that the other petitioners have not availed the benefit of relaxation of standards, there is no occasion for the opposite parties to deny a fact which has not been asserted by the petitioner. Moreover, this Court cannot loose sight of the fact that this petition is being heard on Sunday and the learned counsel for the opposite parties are handicapped in placing the factual position before this Court as the offices are closed today. 29. Learned counsel for the petitioners has submitted that as he has not pleaded that petitioners have not availed the benefit of relaxation of eligibility standards, this Court should not go into this question and this Court should not consider the judgments cited by the learned counsel for the opposite parties. 30. Learned counsel for the opposite parties cannot be blamed for assisting the Court with the assistance of the judgments of the Hon'ble Supreme Court which prima facie appear to be relevant for adjudication of the present case. Merely because the petitioners have not pleaded in the writ petition, the learned counsel for the opposite parties cannot be blamed for placing those judgments before this Court. 31. Learned counsel for the petitioners insisted that the Court should deal with the validity of the office memorandum dated 09.01.2020 keeping in view the pleadings contained in para-2 of the writ petition, which reads as follows:- “That the Instant writ petition is being filed challenging the office memorandum 09.01.2020 issued by the office of UPPSC ie. Opposite party no.5 on the premise that UPPSC being selecting body/executing agency cannot take policy decision otherwise, regulating the laws of reservation & migration contrary i.e. to the provisions, provided under the statutory laws as well as Judicial pronouncement by the Hon'ble Apex Court & by several Judgments of the Hon'ble High Court as the UPPSC operates as a constitutional body tasked with implementing reservation policies for schedules caste, scheduled tribes and OBC in State public services primarily governed by the UP Public services (Reservation for SC, ST & OBC) Act 1994 deriving authority from part XIV of the Constitution of India (Article 315-323) and the Constitution does not grant the UPPSC the power to create reservation policies rather it mandates the Commission to implement and consult on them. Further it would be relevant to state that UPPSC does not create the policy itself but is obligated to implement the policies enacted by the State Legislature. Further there is exclusion clause under Article 320(4) which provides that a Public Service Commission need not be consulted on the manner in which reservation provisions are made.” 32. Per contra, the learned counsel for the opposite parties have submitted that this Court should not express any view on the aforesaid plea without the opposite parties being given an opportunity to file a counter affidavit. 33. This Court finds it appropriate to grant an opportunity to the opposite parties to file a counter and is refraining form taking any final view regarding the validity of the office memorandum dated 09.01.2020 without giving an opportunity to the opposite party for filing a counter affidavit. 34. Therefore, the opposite parties are directed to file a counter affidavit within a period of four weeks. 35. Petitioners may file a rejoinder affidavit within a period of one week thereafter. 36. List in the week commencing 16.03.2026 37. In view of the foregoing discussion, no case is made out for grant of any interim relief granting permission to the petitioners to appear in the final written exam scheduled to be held tomorrow, i.e., on 02.02.2026. Accordingly, the interim relief application is rejected.