PETITIONER: JAGJIT SINGH Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT28/03/1978 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. TULZAPURKAR, V.D. CITATION: 1978 AIR 988 1978 SCR (3) 547 1978 SCC (2) 196 ACT: Service matter-Punjab Civil Service (Executive Branch)-one out of six posts for each year reserved for Scheduled Castes candidates-Appellant, a Scheduled Caste candidate placed third in merit list of Scheduled Castes candidates One of the two candidates resigned a year after appointment- Appellant laid claim. for resultant vacancy-If could be appointed-State Government Circular-Scope explained. HEADNOTE: In each of the two years of 1971 and 1972 there were six vacancies in the Punjab Civil Service (Executive Branch). To select eligible candidates for these 12 vacancies in the Punjab Civil Service and other vacancies in the allied services, after completion of the requisite formalities the State Service Commission held the competitive examination called the Punjab Civil Service and Allied Services Examination in December 1972-January, 1973. In the said examination, the appellant secured third place in the merit list of Scheduled Castes candidates. Since only two posts, one each for the years 1971 and 1972 on the basis of 20% quota reservation for Scheduled Castes candidates,were available in the Punjab Civil Service (Executive Branch) the appellant could not be appointed. In June, 1974 when one of the selected candidates bad resigned his post, the appellant on the basis of the State Government circular dated March 6, 1961, laid claim for being appointed against the resultant vacancy. But the State Government rejected his claim. The High Court dismissed his petition under Art. 226 on the ground that the State Government did not choose to fill up the vacancy on an ad hoc basis and since the merit list for the years 1971 and 1972 stood exhausted and a fresh competitive examination was held to fill up the vacancies available for the years 1973 and 1974, persons borne on the previous years' lists had no right to be appointed against the vacancy occurring thereafter. Allowing the appeal to this Court, HELD : 1. The resultant vacancy caused by the resignation of one of the Scheduled Castes candidates should have gone to the appellant who was entitled to it both on the basis of merit and the policy statement contained in the Government circular as well as on the fact that no competitive examination had been held by the Commission between 1972 and the end of 1974. [557 (G-H, 52 A] 2. The statutory rules relating to reservation of vacancies cannot operate as impediment in the way of the appointment of the appellant as it would by no means increase the number of the two posts reserved by the Government itself for members of Scheduled Castes during the relevant year. The instructions contained in the circular not only deprecate the then existing practice according to which in cases of termination of the services of a Government servant belonging to Scheduled Castes/Tribes and backward classes, the resultant vacancy was included in the normal pool of vacancies to be filled up in accordance with the block system and characterise it as repugnant to the dominant idea of giving due representation to the members of Scheduled Castes/ Tribes are terminated, the resultant vacancy should not be included in the normal pool of vacancies to be filled up in accordance with the block system but should be filled up on an ad hoc basis from the candidates belonging to those castes. The intention of the Government was that the posts vacated should remain earmarked and be filled up by the members belonging to those castes only. [551 D-F] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2962 of
1977.
(Appeal by Special Leave from the Judgment and Order 3-9-
1976 of the Punjab & Haryana High Courts in Civil Writ
Petition No. 2504 of 1975).
548
M. R. Agnihotri and P. C. Bhartari for the Appellant.
S. K. Mehta and K. R. Nagaraja for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is directed
against the judgment and order dated September 3, 1976 of
the Punjab & Haryana High Court dismissing the writ petition
No. 2504 of 1975 filed by the appellant under Articles 226
and 227 of the Constitution.
The circumstances leading to this appeal are : Six vacancies
in the Punjab Civil Service (Executive Branch) having
occurred in the year 1971, the State Government requested
the Punjab Public Service Commission (hereinafter referred
to as ‘the Commission) to select and recommend six
candidates to fill up the said vacancies. According to rule
6 read with rule 11 of the Punjab Civil Service (Executive
Branch) Rules, 1930, recruitment to the Punjab Civil Service
(Executive Branch) has to be made from amongst the persons
whose names are borne on the register known as ‘Register B’
on the basis of the result of the competitive examination
held by the Commission in conformity with the rules and
regulations framed in that behalf. As longer time than
anticipated was taken in holding the examination and
completing the selection and in the meanwhile six more
vacancies in the Punjab Civil Service (Executive Branch)
occurred in 1972, the State Government requested the
Commission to recommend the names of six more candidates on
the basis of the result of the corn petitive examination for
filling up the additional six vacancies. Accordingly after
completion of the requisite formalities, the Commission held
the competitive examination called the Punjab Civil Service
and Allied Services Examination in December, 1972/January,
1973 to select eligible candidates for the aforesaid 12
vacancies in the Punjab Civil Service and other vacancies in
the Allied Services. In the said examination, the appellant
who was a member of the Scheduled Castes secured third
position in the order of merit amongst the candidates
belonging to the Scheduled Castes-, the other two candidates
above him being Harinder Singh Khalsa and Hans Rai Megh.
The Commission recommended 12 persons including the
aforesaid three persons who belonged to the Scheduled Castes
for recruitment to the Punjab Civil Service (Executive
Branch). As the appellant had been placed at serial No. 3
in the order of merit amongst the candidates belonging to
the Scheduled Castes in the aforesaid examination and only
two posts, one each for the years 1971 and 1972, in the
Punjab Civil Service (Executive Branch) were available for
members of the Scheduled Castes on the basis of 20% quota
reserved for them against which Harinder Singh Khalsa and
Hans Raj Megh Were appointed, the appellant could not be
recruited to the Punjab Civil Service (Executive Branch).
He was, however, appointed as ‘A’ Class Tahsildar in one of
the Allied Services as per the second preference indicated
by him in his application seeking admission to the Punjab
Civil Service and Allied Services Examination. Consequent
upon his selection for appointment in the Indian
Administrative Service, Harinder Singh Khalsa, who had
joined the post of Extra Assis-
549
tant Commissioner in the Punjab Civil Service (Executive
Branch) on or about June 21, 1974 resigned his office and
was relieved therefrom on August 11, 1974. Being the next
candidate in order of merit amongst the-Scheduled Castes
candidates in the select list of the Punjab Civil Service
(Executive Branch), the appellant made a representation to
the State Government claiming on ad hoc basis the vacancy
caused by the resignation of Harinder Singh Khalsa in
accordance with the State Government’s instructions
contained in Circular letter No. WG II-13 (29)-61/5598 dated
March 6,1961.the validity whereof had been upheld by a
Division Bench of the Punjab & Haryana High Court vide
judgment dated May 26, 1966 in C.W. No. 3063 of 1965
entitled “Harbhajan Lal Mudgil & Anr. v. State of Punjab &
Ors. The said Circular letter reads as follows
“No. WGII-13(29)-61/5598
From
Shri E. N. Mangat Rai, I.C.S.
Chief Secretary to Government, Punjab
TO
All Heads of Departments, Commissioners of Divisions,
Deputy Commissioners and the District and Sessions Judges in
the Punjab and the Registrar, High Court, Punjab.
Dated : Chandigarh, the 6th March, 1961.
SUBJECT : Representation of members of Scheduled
Castes/Tribes and Backward Classes in service in Punjab.
Sir,
I am directed to refer to Punjab Government letter No.
28400WG-S-56/8090, dated the 9th November, 1956, wherein it
is stated that with a view to ensuring due representation to
members of Schedules Castes/Tribes and Backward Classes in
Government service recruitment on a Block System based on a
formula of rotation is to be made, and that the first
vacancy is to be reserved for a member belonging to these
Castes/Classes irrespective of his position inter se the
other candidate and the remaining four vacancies for others.
The instructions further enjoin that in case it is not
possible to fill the first reserved vacancy by appointment
of a candidate be- longing to Scheduled Caste/Tribe or
Backward classes, this vacancy may be filled by a candidate
other than one belonging to Scheduled Caste/Tribe or
Backward Classes, and the reservation be carried on from
vacancy to vacancy in the same block until a suitable
candidate for the vacancy in the block has been found.
According to the existing practice if the services of a
government servant belonging to Scheduled Caste/Tribe and
Backward Classes are terminated the resultant vacancy is
included in the normal pool of vacancies and is filled up in
accordance with the Block System. It has been observed that
in this way the underlying idea of giving due representation
to members of Scheduled Caste/Tribe and Backward Classes is
not
550
achieved. With a view to safeguard the interests of the
members of the Scheduled Castes/Tribes and Backward Classes,
it has been decided that if the services of a Government
Servant belonging to Scheduled Castes/Tribes or Backward’
Classes are terminated, the resultant vacancy should not be
included in the normal pool of vacancies to be filled in
accordance with the Block System but should be .filled up on
ad hoc basis from the candidates belonging to these castes
and classes. In other words the intention is that the posts
vacated by members of Scheduled Castes/Tribes and Backward
Classes should remain earmarked and be filled up by members
belonging to these Classes.
2. There will not be any practical difficulty in finding
suitable candidates belonging to Scheduled Castes/Tribes and
Backward Classes in so far as non-technical posts are
concerned. However, for the technical posts and those
requiring specialised training, or qualification suitable
personnel sessing requisite experience and qualification may
not be available. Therefore, in order to -avoid’ any
administrative inconvenience by keeping those posts in
abeyance for an indefinite period, such post may be filled
up by candidates other than those belonging to Scheduled
Castes/Tribes and Back-ward Classes on the condition that
whenever suitable persons belonging to such Castes/Classes
are available and there is need for filling tip a new
vacancy, the members of the Scheduled Castes/Tribes and
Backward Classes should be given their earlier quota for
making up their deficiency arisen out of a non-availability
of their technical persons at that time.
3. The receipt of this communication may please be
acknowledged.
Yours faithfully,
Sd/-
Deputy Secretary, General Administration
for Chief Secretary to Government, Punjab.”
The Government rejected the aforesaid claim of the
appellant, whereupon lie approached tbe Punjab & Haryana
High Court by means of the aforesaid petition which, as
already stated, was dismissed by the High. Court vide its
judgment and order dated September 3, 1976.
While repelling the contention advanced on behalf of the
State that if the vacancy caused by the resignation of
Harinder Singh Khalsa was offered to the Scheduled Castes
candidate, though on ad hoc basis, the number of vacancies
to be filled up by the Scheduled Castes and Scheduled Tribes
candidates would go beyond 50% and thereby exceed the limit
of reserved vacancies fixed by the statutory rules relating
to reservation of vacancies in the Punjab Civil Service
(Executive Branch) and holding that if the, vacancy caused
by the resignation of Harinder Singh Khalsa was filled up on
ad hoc basis by appointing a member of Scheduled Castes, the
number of vacancies filled by the Scheduled Castes
candidates would still remain the same and if a non-
Scheduled Castes candidate was appointed against that
551
vacancy, the very purpose of the Government’s instructions
contained in the aforesaid circular No. WG II-13 (29)-
61/5598 dated March 6, 1961 would be defeated, the High
Court still dismissed the aforesaid petition of the
appellant on the ground that as the State Government did not
choose to fill up the vacancy on ad hoc basis and a fresh
,competitive examination was held to fill up the vacancies
available for the years 1973 and 1974 in which the appellant
never appeared and the aforesaid vacancy caused by the
resignation of Harinder Singh Khalsa was filled up along
with the other vacancies in accordance with the Block System
keeping in view the reserved quota, and the merit list
prepared by the Commission stood exhausted by the appoint-
ment of 12 persons against the 12 vacancies available with
respect to the, years 1971 and 1972, the persons home on
that list had no right to be appointed against a vacancy
which occurred thereafter. The High Court further- held
that the appellant had no locus standi to challenge the non-
inclusion of the vacancy caused by the, resignation of
Harinder Singh Khalsa in the reserved quota.
We frankly confess we are unable to understand the rationale
or approach of the High Court which manifestly runs counter
to the aforesaid instructions- of the Government contained
in Circular No. WG 11-13(29)-61/5598 dated March 6, 1961.
The instructions not only deprecate the then existing
practice according to which in case of termination of the
services of a Government servant belonging to Scheduled
Castes/Tribes and backward classes, the resultant vacancy
was included in the normal pool of vacancies to be filled up
in- accordance with the block system and characterise it as
repugnant to the dominant idea of giving due representation
to the members of Scheduled Castes/Scheduled Tribes and
backward classes but go on to lay down in unmistakable terms
that if the services of a Government servant be-longing to
Scheduled Castes/Tribes or Backward Classes are terminated,
the resultant vacancy should not be included in the normal
pool of vacancies to be filled up in accordance with the
block system but should be filled up on ad hoc basis from
the candidates belonging to these castes and classes. The
instructions put the matter beyond the pale of controversy
by emphatically declaring that the intention of the
Government was that the posts vacated by members of
Scheduled Castes/Tribes and Backward Classes should remain
earmarked and be filled up by the members belonging to the
Scheduled Castes/Tribes and Backward Classes.
In face of these clear and categorical instructions, the
contention advanced on behalf of the State that the vacancy
meant for Scheduled Castes having been ince utilised by
Harinder Singh Khalsa ceased to be a reserved vacancy and
the appellant had no right to be appointed against it cannot
be countenanced and consequently the claim of the appellant
cannot but be upheld. We have, no doubt in our mind that
the resultant vacancy caused by the resignation of Harinder
Singh Khalsa should have gone to the appellant who belonged
to the Scheduled Caste and was entitled to it both on the
basis of the merit and the policy statement contained in the
aforesaid Circular letter of the Government as well as the
fact that no competitive examination had been held by the
Commission between 1972
552
and the end of 1974 in which the appellant could have or
should have appeared. ‘Ale may also state that the
statutory rules relating to reservation of vacancies cannot
operate as an impediment in the way of the appointment of
the appellant as it would by no means increase the number of
the two posts reserved by the Government itself for the
members of the castes to which the appellant belonged,
during the relevant years.
For the foregoing reasons, we are unable to sustain the
judgment and order of the High Court. In the result, the
appeal succeeds and is hereby allowed with costs quantified
at Rs. 2,000/-.
P.B.R.
Appeal allowed.
553