{"id":149772,"date":"1984-08-22T00:00:00","date_gmt":"1984-08-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/prem-prakash-vs-union-of-india-and-ors-on-22-august-1984"},"modified":"2016-05-02T15:38:12","modified_gmt":"2016-05-02T10:08:12","slug":"prem-prakash-vs-union-of-india-and-ors-on-22-august-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/prem-prakash-vs-union-of-india-and-ors-on-22-august-1984","title":{"rendered":"Prem Prakash vs Union Of India And Ors on 22 August, 1984"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Prem Prakash vs Union Of India And Ors on 22 August, 1984<\/div>\n
Equivalent citations: 1984 AIR 1831, \t\t 1985 SCR (1) 564<\/div>\n
Author: Y Chandrachud<\/div>\n
Bench: Chandrachud, Y.V. ((Cj)<\/div>\n
           PETITIONER:\nPREM PRAKASH\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT22\/08\/1984\n\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nVARADARAJAN, A. (J)\nSEN, AMARENDRA NATH (J)\n\nCITATION:\n 1984 AIR 1831\t\t  1985 SCR  (1) 564\n 1984 SCALE  (2)205\n\n\nACT:\n     Delhi Judicial  Service Rules  1970-Vacancies  reserved\nfor  Scheduled\t Castes\t and   Scheduled  Tribes-Errors\t  in\ncalculating reserved vacancies-If would prejudicially affect\nregularly selected Scheduled Caste candidates.\n     Delhi Judicial  Service Rules,  1970-Rules not  amended\npursuant  to  the  Administrative  instructions-Whether\t the\nAdministrative instructions  can  prevail  over\t the  Rules-\nWhether Rules  and Administrative  Instructions can  be read\ntogether if there is no inconsistency between the two.\n\n\n\nHEADNOTE:\n     Rule 18  of the Delhi Judicial Service Rules, 1970 (for\nshort, the  Rules) says\t that the  Selection Committee shall\nprepare a  list of  candidates in order of merit and forward\nit to  the Administrator  for  filling\tthe  vacancies\tthen\nexisting or  any vacancy  that may  occur within a period of\none year  of the  preparation of  the list.  Rule 28  of the\nRules lays  down that  appointments made  to the  Service by\ncompetitive examination\t shall be subject to order regarding\nspecial representation\tin the\tService for Scheduled Castes\nand Scheduled  Tribes issued  by the Central Government from\ntime to\t time. Paragraph 2.1 of the Brochure on \"Reservation\nfor Scheduled  Castes  and  Scheduled  Tribes  in  Services\"\nissued by  the Central\tGovernment requires that 15 per cent\nof the\ttotal vacancies\t are to\t be reserved  for  Scheduled\nCaste candidates  and 71\/2  for Scheduled  Tribe candidates.\nParagraph 4.2  of the  Brochure prescribes  that the  actual\nnumber of  vacancies to be reserved for Scheduled Castes and\nScheduled Tribes  in any recruitment should be determined on\nthe basis  of points  in the  roster and  also\ttaking\tinto\naccount the  reservations brought  forward from the previous\nyear.\n     On 8th February, 1982, the Government of India issued a\nNotification declaring\tthat there  would be no limit on the\nperiod of  validity  of\t the  list  of\tselected  candidates\nprepared to  the extent\t of declared vacancies either by the\nmethod of  direct  recruitment\tor  through  a\tdepartmental\ncompetitive examination\t and that  once a person is declared\nsuccessful  according\tto  the\t  merit\t list\tof  selected\ncandidates  which   is\tbased  on  the\tdeclared  number  of\nvacancies, the\tappointing authority  has the responsibility\nto appoint  him even  if the number of vacancies undergoes a\nchange after  his name\thas been  included in  the  list  of\nselected candidates.\n565\n     In 1980, Respondent No. 3, High Court of Delhi notified\n16  vacancies\tof  Sub-Judges\t for  being  filled  through\ncompetitive examination\t in the\t Delhi\tJudicial  Service-11\nvacancies were\tfor open  candidates, 2 for Scheduled Castes\nand 3  for  Scheduled  Tribes  which  included\ttwo  carried\nforward vacancies  also. The  carried forward vacancies were\ninterchangeable\t in   the  sense  that\tif  candidates\tfrom\nScheduled Tribes  were not available, the vacancies could be\nadded to  the  quota  reserved\tfor  Scheduled\tCastes.\t The\npetitioners, Dal  Chand Anand  and Prem\t Prakash,  who\twere\nmembers of  Scheduled Caste  secured 10th  and 11th position\nrespectively  in   the\tmerit  list  of\t 11  candidates\t who\nqualified  the\t examination  and  viva-voce  test  held  in\npursuance of  the above notification. They were Serial No. 3\nScheduled Caste\t candidates. Since  the petitioners  did not\nfigure in  the final  list of  candidates  selected  by\t the\nAdministrator, Respondent  No. 2,  they filed  present\twrit\npetitions under\t Art. 32  of the  Constitution to  challenge\ntheir exclusion and non-appointment.\n     Respondent No.  3 contended  (1) that  the\t petitioners\nwere excluded from the selections of 1980, on account of the\nfact that only 11 candidates qualified in the examination of\nwhich 7\t were general  candidates and therefore as against 7\ngeneral candidates  only 1 Schedule Caste candidate could be\nappointed; and\t(ii) That though the petitioners were in the\nmerit list  of 11  persons for the year 1980, they could not\nbe appointed  as  Sub-Judges  because  two  Scheduled  Caste\ncandidates who\twere  wrongly  excluded\t from  the  reserved\nappointments of\t 1979 had  to be  accommodated in  the merit\nlist of\t 1980 and  after adjusting them against the reserved\nvacancies of  1980, no\treserved vacancies were left for the\npetitioners.\n     Allowing the Writ Petitions,\n^\n     HELD: (1)\tThe error  from which the calculation of the\nHigh Court suffers is that the number of vacancies available\nfor the Scheduled Caste candidates was fixed by it according\nto the\tnumber of  candidates who  qualified for the general\nseats.\tThis   is  neither   justified\tby   the  Rules\t and\nadministrative instructions nor indeed does such a method of\nfixation  of  reserved\tvacancies  disclose  any  acceptable\nbasis. The  quota of seats available for reserved candidates\ncannot be  made to  depend on the fortuitous circumstance as\nto how many candidates have qualified for the general seats,\nsince that  would be  contrary to the instructions contained\nin paragraph  4.2 and 9.2 of the Brochure of 1978 and such a\nmethod\twill   also  lead  to  the  absurd  and\t undesirable\nconsequence that  no candidate of the reserved category will\nbe appointed  at all  if only one or two candidates from the\ngeneral category  qualify in  the examination.\tThe  correct\napproach is to fix the number of vacancies available for the\nreserved candidates  on the  basis of  the total  number  of\nvacancies which\t are intended to be filled at any particular\npoint of  time. Therefore,  the High  Court could  not\thave\nfixed the  number of  vacancies available  to  the  reserved\ncandidates  on\t the  basis  that  only\t seven\tpersons\t had\nqualified for general seats. If a decision was taken to fill\n10 or 11 posts only, the number of reserved vacancies should\nhave been  fixed upon  that basis  and not on the basis that\nonly 7\tcandidates had\tqualified  for\tthe  general  seats.\n[574D-E, G-H, 575A-B]\n566\n     (2) In  the process  of remedying\tinjustice which\t was\ndone to\t the  2\t Scheduled  Caste  candidates  of  1979,  no\ninjustice can be caused to the petitioners who had qualified\nfor the reserved seats in the examination held in 1980. Such\na strange  result is  to be  avoided if not at all costs, at\nleast  within\tthe  framework\t of  the   Rules   and\t the\nadministrative instructions governing the matter. Justice to\none  group  at\tthe  expense  of  injustice  to\t another  is\nperpetuation of\t injustice in some form or the other. [577H,\n57 D]\n     (3) The statutory rules and administrative instructions\nhave to\t be read  together unless  they are contrary to each\nother. In the instant case, since there is no in consistency\nbetween\t the   statutory  rules\t  and\tthe   administrative\ninstructions, it  is clear  that the  two have\tto  be\tread\ntogether by reason of Rule 28. Though the Rules of the Delhi\nJudicial Service  have not  been amended so as to bring them\ninconformity  with   the  administrative   instructions\t and\nnotifications which have been issued by the Ministry of Home\nAffairs, Department of Personnel and Administrative Reforms,\nfrom time  to time,  that does\tnot mean that administrative\ninstructions can  be ignored by the High Court until that is\ndone. Therefore,  the Notification of 1982 is good authority\nfor adjusting the petitioners against the reserved vacancies\nfor the\t year 1980,  since it is clear from the Notification\n(i) that  if selected  candidates  are\tavailable  from\t the\nprevious list, there should either be no further recruitment\nuntil those  candidates are absorbed or, in the alternative,\nvacancies which are declared for the subsequent years should\ntake into  account the\tnumber of persons who are already in\nthe list  of selected  candidates  who\tare  still  awaiting\nappointment and\t (ii) that  there should  be no limit on the\nperiod of  validity  of\t the  list  of\tselected  candidates\nprepared to  the extent\t of declared  vacancies and  once  a\nperson is declared successful according to the merit list of\nselected  candidates,\tthe  appointing\t authority  has\t the\nresponsibility\tto  appoint  him,  even\t if  the  number  of\nvacancies undergoes  a change  after his name is included in\nthe list of selected candidates. [577G, B-D, 576G-H; 577A]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION:  Writ Petition Nos. 4480 of 1980
\nand 2962 of 1981
\n     (Under article 32 of the Constitution of India)
\n     S.N. Jha for the Petitioner in W.P. 4480\/80.
\n     Girish Chandra for the Petitioner in W.P. 2962\/81.
\n     M.M. Abdul Khadar and R.N. Poddar for the Respondent.
\n     The Judgment of the Court was delivered by
\n     CHANDRACHUD, C.  J. The  petitioners, Prem\t Prakash and
\nDal Chand  Anand, are members of a scheduled caste. By these
\nwrit petitions\tunder article  32 of  the Constitution, they
\nask for\t a writ\t of mandamus  directing the  respondents  to
\nappoint them against
\n567<\/span>
\nthe vacancies  reserved for  members of Scheduled Castes and
\nScheduled Tribes  in the  Delhi Judicial  Service. They also
\nask for\t a writ\t of  prohibition  to  the  effect  that\t the
\nrespondents should  not fill  up the  reserved vacancies for
\nwhich they  competed, either  by holding a fresh examination
\nor  by\tappointing  candidates\twho  had  qualified  in\t any
\nprevious examination.  The Union of India, the Administrator
\nof the\tUnion Territory\t of Delhi  and the  Registrar of the
\nDelhi High  Court are  respondents  1,\t2  and\t3  to  these
\npetitions.\n<\/p>\n
     On September  26, 1979, the Registrar of the Delhi High
\nCourt published\t a newspaper  advertisement that  the  Delhi
\nHigh Court  will hold  an  examination\tfor  recruitment  of
\nofficers to the Delhi Judicial Service on January 11, 12 and
\n13, 1980  in  the  time\t scale\tpay  of\t Rs.  650-1200.\t The
\nadvertisement stated  that the total number of vacancies was
\n16, out\t of which 2 were reserved for Scheduled Castes and 1
\nfor  Scheduled\t Tribes.  In   addition,  according  to\t the
\nadvertisement, there  were  2  carry-forward  vacancies\t for
\nmembers of  Scheduled Tribes. In case of non-availability of
\nScheduled Tribes  candidates, those vacancies were liable to
\nbe transferred\tas reserved  vacancies for  Scheduled Castes
\ncandidates.\n<\/p>\n
     A competitive  examination was held in pursuance of the
\nsaid advertisement  in accordance  with the  Delhi  Judicial
\nService Rules,\t1970 which  were framed\t by  the  Lieutenant
\nGovernor of  Delhi in  consultation with  the High  Court of
\nDelhi. Rules 18 and 28 read thus:\n<\/p>\n
\t  “Rule 18-The\tSelection Committee  shall prepare a
\n     list of candidates in order of merit. Such list will be
\n     forwarded\tto   the  Administrator\t  for  filling\t the
\n     vacancies then  existing or  any vacancy that may occur
\n     within a  period of  one year of the preparation of the
\n     list.”\n<\/p><\/blockquote>\n
\t  “Rule\t 28-Appointments  made\tto  the\t Service  by
\n     competitive  examination  shall  be  subject  to  order
\n     regarding special\trepresentation in  the\tService\t for
\n     Scheduled Castes  and Scheduled  Tribes issued  by\t the
\n     Central Government from time to time.”<\/p><\/blockquote>\n
     The Brochure  on ‘Reservation  for Scheduled Castes and
\nScheduled Tribes in Services’, (5th ed., 1978) issued by the
\nGovernment of  India, Dept.  of Personnel and Administrative
\nReforms,  Ministry  of\tHome  Affairs  contains\t orders\t and
\ninstructions issued by
\n568<\/span>
\nthe Government of India from time to time on the question of
\nreservation of\tvacancies for Scheduled Castes and Scheduled
\nTribes candidates.  The relevant paragraphs of that Brochure
\nread as follows:\n<\/p>\n
\t  “2.1 Subject to Exemptions and Exclusions referred
\n     in Chapter\t 3, the\t following reservations are in force
\n     in favour\tof SC  and ST  in filling vacancies in posts
\n     and services under the Govt. of India.\n<\/p><\/blockquote>\n
\t  (1)  Direct recruitment on an all India basis:-\n<\/p><\/blockquote>\n
\t\t\t\t\t       SC      ST\n\t       (a) By open competition(i.e.,   15%   71\/2%\n\t\t   through the UPSC or by\n\t\t   means of open competi-\n\t\t   tive test held by any\n\t\t   other authority)\".\n<\/pre>\n
\t  “4.2 The actual number of vacancies to be reserved
\n     for SC  and ST  in any recruitment should be determined
\n     on the  basis of  the points  in the  roster  and\talso
\n     taking into  account the  reservations brought  forward
\n     from  the\t previous  year,   the\t total\t number\t  of
\n     reservations not  exceeding normally  50% of  the total
\n     number of\tvacancies filled  in that year. However, the
\n     carry forward  reserved vacancies\twould  be  available
\n     together  with   the  current  reserved  vacancies\t for
\n     utilisation  even\t where\tthe  total  number  of\tsuch
\n     reserved vacancies\t exceed 50%  of the vacancies filled
\n     in that  year provided,  the over all representation of
\n     SC\/ST in  the total  strength of the concerned grade or
\n     cadre is found to be inadequate, i.e., the total number
\n     of SC\/ST  candidates in  that grade has not reached the
\n     prescribed\t percentage   of   reservation\t for   SC\/ST
\n     respectively, in the grade, as a whole”.
\n\t  “9.2 Advertisement of reserved vacancies for posts
\n     filled by direct recruitment through examination:-
\n\t  Where\t  direct   recruitment\t is   made   through
\n     examination,  for\t reserved  as\twell  as  unreserved
\n     vacancies, a  single advertisement\t would be issued for
\n     such  examination\tbut  the  number  of  the  vacancies
\n     reserved for SC and ST would
\n569<\/span>
\n     be specified  clearly in  it and  in case\tthe required
\n     number of SC or ST candidates are not available even by
\n     applying relaxed  standards for  the  vacancy\/vacancies
\n     reserved  for  them,  the\tremaining  vacancy\/vacancies
\n     should   be   filled   by\t general   candidate   after
\n     dereservation of such vacancy\/vacancies, subject to the
\n     reservations being carried forward as required.”
\n\t  “11.1 Carry over of reservations:-\n<\/p><\/blockquote>\n
\t  If a\tsufficient number  of  reserved\t communities
\n     candidates\t fit   for  appointments   against  reserved
\n     vacancies are  not forthcoming,  such vacancies  can be
\n     dereserved after  following  prescribed  procedure\t for
\n     dereservation as  in Chapter 10 and thereafter they can
\n     be filled\tby candidates  of other communities, but the
\n     reservations shall\t be carried  forward  to  subsequent
\n     three  years   of\trecruitment   (except  in  the\tcase
\n     of……………………..) where  there will  be  no
\n     carry forward of unfilled reserved vacancies, the total
\n     number of\treservations not  exceeding normally  50% of
\n     the total\tnumber of  vacancies to\t be filled  in\tthat
\n     year. The\tsurplus, if  any, above 50% when the ceiling
\n     of 50%  is applied,  shall be  carried forward  to\t the
\n     subsequent year  of recruitment,  subject, however,  to
\n     the condition  that the  particular  vacancies  carried
\n     forward do not become time-barred due to their becoming
\n     more than three years old. However, the carried forward
\n     reserved vacancies would be available together with the
\n     current reserved  vacancies for  utilisation even where
\n     the total number of such reserved vacancies exceeds 50%
\n     of the  vacancies filled  in that\tyear  provided,\t the
\n     overall representation of SC & ST in the total strength
\n     of\t the  concerned\t grade\tor  cadre  is  found  to  be
\n     inadequate, i.e.,\tthe total number of SC\/ST candidates
\n     in that grade has not reached the prescribed percentage
\n     of reservation for SC\/ST respectively, in the grade, as
\n     a whole”.\n<\/p><\/blockquote>\n
\t  “Note (2):-Any  recruitment  of  SC\/ST  candidates
\n     will first\t be counted  against  the  additional  quota
\n     brought  forward  from  the  previous  years  in  their
\n     chronological  order.   If\t SC\/ST\tcandidates  are\t not
\n     available for  all the  vacancies, the  older,  carried
\n     forward vacancies should be filled first
\n570<\/span>
\n     and the  comparatively later  carried forward vacancies
\n     should be further carried forward”.<\/p><\/blockquote>\n
     The petitioners appeared for the examination and passed
\nit, though  by relaxation of the minimum standard prescribed
\nfor passing  the examination. They were then asked to appear
\nat the\tviva voce test conducted by the Selection Committee,
\nwhich they  did. Since,\t only seven open candidates and four
\nScheduled Caste\t candidates qualified  in these\t tests,\t the
\nHigh Court prepared a merit list of 11 candidates as against
\n16 vacancies  which were advertised. Dal Chand Anand, who is
\npetitioner in  Writ Petition  No. 2962\tof 1981, was 10th in
\nthe merit list while Prem Prakash, who is petitioner in Writ
\nPetition No.  4480 of 1980, was 11th in that list. They were
\nrespectively 3rd  and 4th  in the  merit list  amongst the 4
\nScheduled Caste Candidates. Since they did not figure in the
\nfinal list of candidates selected by the Administrator, they
\nhave filed  these petitions to challenge their exclusion and
\nnon-appointment.\n<\/p>\n
     A\tcounter-affidavit   has\t been  filed  on  behalf  of
\nrespondent 3  by Shri  Ramesh Sharma, Assistant Registrar of
\nthe Delhi  High Court.\tThe position  taken up\tby the Delhi
\nHigh Court  in that  affidavit may  be summarized  thus: The
\nDelhi Judicial\tService was  constituted on  August 2, 1971.
\nRule 28,  which\t provides  for\tspecial\t representation\t for
\nmembers of  the Scheduled  Castes and  Scheduled Tribes,  is
\napplicable to  the recruitment\tmade through  a\t competitive
\nexamination only  and, therefore,  no reservations were made
\neither in  favour of Scheduled Castes or Scheduled Tribes at
\nthe stage  of the  initial recruitment to the Service, which
\nwas not\t by competitive\t examination. Representations  were,
\nhowever, made to the Ministry of Law and Justice as a result
\nof  which,   the   Delhi   Administration   was\t  instructed
\nadministratively to  take suitable  steps, if  necessary  by
\namendment of  the recruitment  Rules, so  as to\t provide for
\nreservations for  the Scheduled\t Castes and Scheduled Tribes
\nat the\tinitial constitution  of  the  Service\talso.  In  a
\nmeeting of  officers of the Ministry of Law and Justice, the
\nDelhi Administration  and the  High Court, which was held in
\nNovember, 1971,\t it was\t decided that  15 per  cent  of\t the
\nvacancies filled  in the  Delhi Judicial  Service should  be
\nreserved  for\tScheduled  Castes  and\t71\/2  per  cent\t for
\nScheduled Tribes  and that,  vacancies which  ought to\thave
\nbeen  reserved\t for  these   categories  at   the   initial
\nrecruitment should be carried forward to the following year.
\nThe statutory  rules were  not amended\tin pursuance of this
\ndecision, which\t is but one instance of the wide chasm which
\nexists between the lip service paid to the need for
\n571<\/span>
\nreservations for backward classes and the actual performance
\nin terms of social awareness.\n<\/p>\n
     The counter-affidavit  says that  the  6th\t competitive
\nexamination at\twhich the  petitioners appeared\t was held in
\n1980. 16  Vacancies were  notified, out of which 11 were for
\nopen candidates,  2 for Scheduled Castes and 3 for Scheduled
\nTribes.\t Two   out  of\tthe  three  vacancies  reserved\t for
\nScheduled Tribes  were interchangeable in the sense that, if
\ncandidates from\t Scheduled Tribes  were not available, those
\nvacancies could be added to the quota reserved for Scheduled
\nCastes.\n<\/p>\n
     The counter-affidavit  of the  High  Court\t contains  a
\ncandid admission  in paragraph\t17 that\t when, in  1980\t and
\n1981, the High Court examined the question of reservation of
\nvacancies for  Scheduled Castes\t and Scheduled\tTribes right
\nfrom the  stage of  initial constitution  of the  Service in
\n1971, it  found that  “there was  apparently a\tviolation of
\nstatutory  Rules   and\tthe   vacancies\t had   been  wrongly
\ncalculated by  the Registry  of the  High Court”.  The\tHigh
\nCourt rectified its error by recommending the appointment of
\n2 Scheduled  Caste candidates  for the\t1980 vacancies\tfrom
\namongst\t the  candidates  who  had  qualified  in  the\t1979
\ncompetitive examination\t but who,  on account  of a mistaken
\ncalculation, were  not appointed  to the  reserved seats. We
\nare happy  to find that consistency in adhering to errors is
\nnot the hobgoblin of our High Courts.\n<\/p>\n
     The factual position which emerges out of the averments
\nin the\tWrit Petitions\tand the\t counter affidavit  filed on
\nbehalf of  the High  Court is  that though 16 vacancies were
\nadvertised, only  11 vacancies\tcould possibly be filled up.
\nThe reason is that only 11 candidates passed the competitive
\nexamination. Seven  out of  these 11  had competed  for open
\nseats while  four had  competed for  seats reserved  for the
\nScheduled Castes  If the four reserved seats could be filled
\nup by  the appointment thereto of candidates who appeared in
\nthe 1980  examination,\tthere  would  be  no  difficulty  in
\naccommodating the  petitioners because.\t they are  10th\t and
\n11th in\t the merit  list of  1980. Normally, vacancies which
\nare intended  to be  filled by holding an examination in any
\nparticular year,  are filled from amongst candidates who had
\nappeared for  that examination.\t The situation\tin this case
\nis, however,  complicated by  the fact\tthat  two  Scheduled
\nCaste candidates,  Ajaib  Singh\t and  Ram  Swarup,  who\t had
\nappeared for  the competitive  examination in  the  previous
\nyear, that  is in  1979, were  wrongly denied  appointments.
\nThey had
\n572<\/span>
\npassed the examination and reserved vacancies were available
\nin which  they could and ought to have been appointed. Ajaib
\nSingh filed  a Writ  Petition in this Court (No 312 of 1980)
\nwhich was allowed by us by an order dated September 2, 1981.
\nThat order reads thus :\n<\/p>\n
\t  “We are  informed that  the Delhi  High Court\t has
\n     decided in\t a full Court meeting to recommend the names
\n     of the petitioner Ajaib Singh and another candidate Ram
\n     Swarup, for  appointment to the post for which they had
\n     applied,  namely,\t the  post  of\tthe  Sub-Judge.\t The
\n     duration of  the panel  which was prepared for the year
\n     1979  expired   on\t August\t 16,  1980,  That  makes  it
\n     necessary to  direct that\tthe names  of the petitioner
\n     Ajaib Singh  and the  other candidate Ram Swarup should
\n     be included  in the  panel for  the year  1979 and\t the
\n     appointment of  these persons  be\tmade  by  the  Delhi
\n     Administration despite  the expiration of the period of
\n     that panel.”<\/p><\/blockquote>\n
     The High  Court took  the particular decision in a full
\nCourt meeting  because it  found, and rightly so, that Ajaib
\nSingh and  Ram Swarup  were denied  appointments due  to  an
\nerror on  the part of its Registry in calculating the number
\nof reserved seats which were available in the year 1979. The
\nerror  committed  by  the  High\t Court\tRegistry  is  to  be
\nregretted and  we hope that errors which betray lack of care
\nin matters  which make or mar a person will not be repeated.
\nBut  the   question  which   arose  for\t the  administrative
\nconsideration of  the High  Court was  whether the injustice
\ndone to\t the two  candidates should  be perpetuated  on\t the
\nspecious plea  that, after  all, the  High Court had taken a
\ncertain\t decision  and\tthat  decision\tmust  be  respected,
\nwhether it  is administrative  or judicial.  We are  glad to
\nfind that  the High  Court did not stand on a false sense of
\nprestige  and  rectified  the  injustice  done\tto  the\t two
\ncandidates by correcting an error for which they were not to
\nblame. On our part, we considered it unfair that they should
\nbe denied  appointments and  be made to suffer injustice for
\nthe error  of  the  Registry  in  applying  the\t reservation
\nformula. The  counter-affidavit filed  on behalf of the High
\nCourt shows  that the  first two seats, from out of the four
\nseats which were available to the Scheduled Caste candidates
\nin the\tyear 1980, have been allotted to Ajaib Singh and Ram
\nSwarup, subject to the result of these writ petitions.\n<\/p>\n
     It is ironical that the rectification of injustice done
\nto some
\n573<\/span>
\ntwo persons  should result  in injustice to two others. But,
\nthat is\t exactly what  has happened  in this  case, as if to
\nillustrate that\t one man’s food is another man’s poison. The
\ncontention of  the High Court is that though the petitioners
\nwere in the merit list of 11 persons for the year 1980, they
\ncould not  be appointed\t as Sub-Judges\tbecause, Ajaib Singh
\nand Ram\t Swarup who  were wrongly excluded from the reserved
\nappointments of\t 1979 had  to be  accommodated in  the merit
\nlist of\t 1980 and, after adjusting them against the reserved
\nvacancies of  1980, no\treserved vacancies were left for the
\ncandidates who\twere placed in the merit list of 1980. When,
\nin furtherance\tof the\tdecision taken\tby  the\t Full  Court
\nmeeting of  the High Court, we directed on September 2, 1981
\nthat the two candidates of 1979 must be included in the 1979
\npanel and  appointed as Sub-Judges despite the expiry of the
\nduration of  that panel,  little did  we realise, and it was
\nnot so\tstated before  us, that the appointment of those two
\ncandidates of  1979  will  mean\t the  ouster  of  these\t two
\ncandidates of  1980. Such a strange result is to be avoided,
\nif not\tat all\tcosts, at  least within the framework of the
\nRules and  the administrative  instructions  governing\tthis
\nmatter. Justice\t to one group at the expense of injustice to
\nanother is  perpetuation of  injustice in  some form  or the
\nother.\n<\/p>\n
     The  counter-affidavit   of  the\tAssistant  Registrar
\nexplains the arithmetic of the High Court decision as to why
\nthe petitioners\t were excluded\tfrom the selections of 1980.
\nHistory has  the habit\tof repeating  itself and, with great
\nrespect, the  High Court has once again fallen into an error
\nwhile deciding\twhether, after accommodating Ajaib Singh and
\nRam Swarup  in the  1980 selection,  reserved vacancies were
\nstill available in which the petitioners could be appointed.
\nThe explanation\t of the High Court may best be stated in the
\nwords of its Assistant Registrar. He says in paragraph 21 of
\nhis counter-affidavit :\n<\/p>\n
\t  “It is  submitted that  in view  of the  fact that
\n     only 11  candidates qualified  in\tthe  examination  of
\n     which  7\twere  general\tcandidates.  Therefore,\t  in
\n     accordance with  the advice  contained  in\t the  D.  O.
\n     letter No.\t 36034\/19\/79-Est (SCT) dated August 13, 1979
\n     of\t the  Department  of  Personnel\t and  Administrative
\n     Reforms, as  against  7  general  candidates  only\t one
\n     Scheduled\tCaste\tcandidate   could   be\t taken\t and
\n     accordingly, 7 general candidates and 1 Scheduled Caste
\n     candidate\tand  in\t addition  2  more  Scheduled  Caste
\n     candidates as  against 2  carried forward\texchangeable
\n     vacancies
\n574<\/span>
\n     of Scheduled Tribes were recommended for appointment to
\n     the Delhi Judicial Service.”<\/p><\/blockquote>\n
     The counter-affidavit  says that  the name of Dal Chand
\nAnand, who  is petitioner in Writ Petition No. 2962 of 1981,
\nwas recommended for appointment since he was 3rd amongst the
\nfour  Scheduled\t  Caste\t candidates   but  that\t  the,\tsaid
\nrecommendation was  made under\tan erroneous  belief that  a
\nvacancy was  available in  which he could be appointed. When
\nthe mistake  was realised  by the  High Court,\this name was
\ndropped. In so far as the other petitioner, Prem Prakash, is
\nconcerned, the\texplanation of\tthe Assistant  Registrar  is
\nthat no\t vacancy was  available at  all in which he could be
\nappointed since,  he was  4th in the list of Scheduled Caste
\ncandidates.\n<\/p>\n
     The error\tfrom which the calculation of the High Court
\nsuffers is  that the  number of\t vacancies available for the
\nScheduled Caste\t candidates was fixed by it according to the
\nnumber of  candidates who  qualified for  the general seats.
\nThe counter-affidavit states expressly that the availability
\nof vacancies  for candidates  of the  reserved category\t was
\ndetermined on the basis that only 7 candidates had qualified
\nfor the\t general seats.\t This, according  to us,  is neither
\njustified by  the Rules\t and administrative instructions nor
\nindeed does  such a method of fixation of reserved vacancies
\ndisclose any  acceptable basis. 16 Vacancies were advertised
\nin the\tfirst instance\tout of\twhich, 11  were for  general
\ncandidates and\t5 for reserved categories. It may be assumed
\nthat the  Administration  is  not  bound  to  fill  all\t the
\nvacancies which\t are advertised and indeed, if the number of
\ncandidates who\tqualify in  the competitive  examination  is
\nless than  the number  of vacancies which are advertised, it
\nis obvious  that the  vacancies which  can be filled will be
\nless than  the\tvacancies  which  are  advertised.  But\t the
\navailability of vacancies for the reserved categories cannot
\nbe made\t to depend  upon the  accidental circumstance of how
\nmany candidates\t have qualified\t for general  seats. In\t the
\nfirst place,  that would  be contrary  to  the\tinstructions
\ncontained in paragraphs 4.2 and 9.2 of the Brochure of 1978.
\nSecondly,  such\t a  method  will  lead\tto  the\t absurd\t and
\nundesirable consequence\t that no  candidate of\tthe reserved
\ncategory will  be appointed  at all,  if  only\tone  or\t two
\ncandidates  from   the\tgeneral\t  category  qualify  in\t the
\nexamination. The  correct approach  is to  fix the number of
\nvacancies available for the reserved candidates on the basis
\nof the\ttotal number  of vacancies  which are intended to be
\nfilled\tat  any\t particular  point  of\ttime.  According  to
\nparagraph
\n575<\/span>
\n2.1 of the Brochure, 15% of the total vacancies are required
\nto be\treserved  for the  Scheduled Caste  candidates and 7
\n1\/2% for the Scheduled Tribe candidates. Therefore, the High
\nCourt could not have fixed the number of vacancies available
\nto the\treserved candidates on the basis that only 7 persons
\nhad qualified for the general seats. If a decision was taken
\nto fill\t 10  or\t 11  posts  only,  the\tnumber\tof  reserved
\nvacancies should  have been fixed upon that basis and not on
\nthe basis  that only  7 candidates  had\t qualified  for\t the
\ngeneral seats.\tThe High  Court should\thave  corrected\t its
\nerror in  these two  cases with the same alacrity with which
\nit corrected  its error\t in the\t case of  the two  Scheduled
\nCaste candidates who had qualified in 1979.\n<\/p>\n
     There is  an additional  reason in\t support of the view
\nwhich we  are disposed\tto take.  On February  8,  1982\t the
\nMinistry  of  Home  Affairs,  Department  of  Personnel\t and
\nAdministrative\treforms,   issued  a   notification  to\t the
\nfollowing effect :\n<\/p>\n
\t     “Sub:-Validity  period  of\t lists\tof  selected
\n\t       candidates prepared  on the  basis of  direct
\n\t       recruitment\/Department\t\t competitive
\n\t       Examination.\n<\/p><\/blockquote>\n
\t  The undersigned  is directed to say that reference
\n     are   being   received   from   time   to\t time\tfrom
\n     Ministries\/Deptts. enquiring  as to  what should be the
\n     validity  period  of  a  list  of\tselected  candidates
\n     prepared  on   the\t basis\t of  direct  recruitment  or
\n     Departmental competitive Examination
\n\t  Normally, in the case of direct recruitment a list
\n     of selected candidates is prepared to the extent of the
\n     number of vacancies (other persons found suitable being
\n     put on  a reserve\tlist, in case some of the persons on
\n     the list of selected candidates do not become available
\n     for   appointment).   Similarly,\tin   the   case\t  of
\n     Departmental  competitive\t Examinations  the  list  of
\n     selected candidates  has to  be based  on the number of
\n     vacancies on the date of declaration of results, as the
\n     examination is  competitive and  selection is  based on
\n     merit. A  problem may arise when there is a fluctuation
\n     in the  vacancies after the list of selected candidates
\n     is announced.\n<\/p><\/blockquote>\n
\t  The  matter\thas   been   carefully\t considered.
\n     Normally, recruitment  whether from  the open market or
\n     through a
\n576<\/span>
\n     Departmental competitive  Examination should take place
\n     only when\tthere are  no candidates  available from  an
\n     earlier list  of selected candidates. However, there is
\n     a likelihood  of vacancies\t arising in future: in case,
\n     names of  selected candidates  are\t already  available,
\n     there should  either be no further recruitment till the
\n     available\tselected  candidates  are  absorbed  or\t the
\n     declared vacancies for the next examination should take
\n     into account  the number of persons already in the list
\n     of\t selected  candidates  awaiting\t appointment.  Thus,
\n     there would  be no\t limit on  the period of validity of
\n     the list  of selected candidates prepared to the extent
\n     of declared  vacancies, either  by the method of direct
\n     recruitment  or   through\ta  Departmental\t Competitive
\n     Examination.\n<\/p><\/blockquote>\n
\t  Once a  person is declared successful according to
\n     the merit\tlist of\t selected candidates, which is based
\n     on the  declared number  of vacancies,  the  appointing
\n     authority has the responsibility to appoint him even if
\n     the number\t of the\t vacancies undergoes a change, after
\n     his name  has been\t included in  the list\tof  selected
\n     candidates.  Thus,\t  where\t selected   candidates\t are
\n     awaiting  appointment,  recruitment  should  either  be
\n     postponed\ttill   all  the\t  selected  candidates\t are
\n     accommodated  or  alternatively  intake  for  the\tnext
\n     recruitment reduced by the number of candidates already
\n     awaiting  appointment   and  the\tcandidates  awaiting
\n     appointment from  a  fresh\t list  from  the  subsequent
\n     recruitment or examination.\n<\/p><\/blockquote>\n
\t  Ministry of  Finance, etc.  are requested to bring
\n     the  above\t instructions  to  the\tnotice\tof  all\t the
\n     appointing authorities  under them\t for information and
\n     guidance.\n<\/p><\/blockquote>\n
Sd\/-(J. K. Sarma)
\nDirector.”\n<\/p>\n
It  is\t clear\tfrom  this  notification  that\tif  selected
\ncandidates are\tavailable  from\t the  previous\tlist,  there
\nshould\teither\t be  no\t  further  recruitment\tuntil  those
\ncandidates are\tabsorbed or,  in the  alternative, vacancies
\nwhich are declared for the subsequent years should take into
\naccount the number of persons who are already in the list of
\nselected candidates  who are still awaiting appointment. The
\nnotification further  shows that there should be no limit on
\nthe period  of validity\t of the\t list of selected candidates
\nprepared to the extent
\n577<\/span>
\nof declared  vacancies. Once a person is declared successful
\naccording to  the merit\t list of  selected  candidates,\t the
\nappointing authority  as the  responsibility to appoint him,
\neven if the number of vacancies undergoes a change after his
\nname is included in the list of selected candidates.\n<\/p>\n
     We must record our dissatisfaction at the fact that the
\nRules of the Delhi Judicial Service have not been amended so
\nas to  bring them  in  conformity  with\t the  administrative
\ninstructions and notifications which have been issued by the
\nMinistry  of  Home  Affairs,  Department  of  Personnel\t and
\nAdministrative Reforms,\t from time to time. The situation is
\nvirtually chaotic for which, we must clarify, the High Court
\nof Delhi  cannot be  blamed. It is surprising that though 13
\nyears have  gone by  since the\tDelhi Judicial\tService\t was
\nestablished, no\t attention whatsoever  has been\t paid  to  a
\nmatter which  concerns the future of a large number of young
\nmen and\t women who  aspire for\tposts in  the Judiciary. The
\ninstant case  and the  cases of\t Ajaib Singh  and Ram Swarup
\nshow that  the worst  sufferers of this inaction are members
\nof the\tScheduled Castes  and Scheduled\t Tribes. Sooner\t the
\nRules are  amended, easier  will it be for the High Court to
\nadminister and\tsuperintend the\t affairs of  the subordinate
\nJudiciary with\tthe object of achieving the ideals enshrined
\nin Articles 16 (4), 38 and 46 of the Constitution.\n<\/p>\n
     Though the\t Rules ought  to be  amended, that  does not
\nmean that  administrative instructions can be ignored by the
\nHigh Court  until that is done. The Assistant Registrar says
\nin paragraph 9 of his counter-affidavit that “administrative
\ninstructions cannot be allowed to prevail over the statutory
\nrules.”\t That\twould\tbe   correct   provided\t  that\t the
\nadministrative instructions  are contrary  to the  statutory
\nrules. In  this case, Rule 28 itself says that “Appointments
\nmade to\t the service  by competitive  examination  shall  be
\nsubject to  order regarding  special representation  in\t the
\nservice for  Scheduled Castes and Scheduled Tribes issued by
\nthe Central  Government from  time to  time.” Therefore, far
\nfrom their  being any  inconsistency between  the  statutory
\nrules and  the administrative  instructions it is clear that
\nthe two have to be read together.\n<\/p>\n
     These  writ   petitions  must  therefore  succeed.\t Our
\nreasons for allowing the petitions may be summed up thus: In
\nthe first  place…, in\t the process  of remedying injustice
\nwhich was  done to  the two  scheduled caste  candidates  of
\n1979, no  injustice can be caused to the petitioners who had
\nqualified for the reserved seats in the exami-\n<\/p>\n
578<\/span><\/p>\n
nation held  in 1980. Secondly, the quota of seats available
\nfor reserved  candidates cannot\t be made  to depend  on\t the
\nfortuitous circumstance\t as  to\t how  many  candidates\thave
\nqualified for  the general seats. The reserved quota must be
\nfixed on  the basis  of the  total number of vacancies which
\nare to\tbe filled  at a\t given point  of time.\tThirdly, the
\nnotification of\t 1982 is  good authority  for adjusting\t the
\npetitioners against  the reserved  vacancies  for  the\tyear
\n1980. The  statutory rules  and administrative\tinstructions
\nhave to be read together by reason of Rule 28.\n<\/p>\n
     We accordingly direct that the High Court and the Delhi
\nAdministration will take expeditious steps for notifying the
\nappointments of\t the petitioners,  Dal Chand  Anand and Prem
\nPrakash, to  the Delhi\tJudicial Service.  For\tpurposes  of
\nseniority the  former  will  rank  higher  than\t the  latter
\nbecause that  was their\t orders of seniority in the original
\nmerit list  of 1980.  Since they have not actually worked as
\nSub-Judges during  the intervening  period, they will not be
\nentitled to  any remuneration  for that\t period.  They\twill
\nhowever rank  for seniority in the Delhi Judicial Service on
\nthe footing that they were appointed when they ought to have
\nbeen appointed,\t that is  to say,  when the other candidates
\nwere appointed\ton the\tbasis of  the  result  of  the\t1980
\nexamination. In\t all other  respects,  including  probation,
\ntheir appointment  will be  subject to the provisions of the
\nrelevant rules and regulations.\n<\/p>\n
     In the  result, the  writ petitions  are allowed to the
\nextent indicated  above. Respondents 1 and 2 will pay to the
\npetitioners the costs of these petitions.
\nM.L.A.\t  Petitions allowed.\n<\/p>\n
579<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Prem Prakash vs Union Of India And Ors on 22 August, 1984 Equivalent citations: 1984 AIR 1831, 1985 SCR (1) 564 Author: Y Chandrachud Bench: Chandrachud, Y.V. ((Cj) PETITIONER: PREM PRAKASH Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT22\/08\/1984 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) VARADARAJAN, A. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-149772","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPrem Prakash vs Union Of India And Ors on 22 August, 1984 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/prem-prakash-vs-union-of-india-and-ors-on-22-august-1984\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Prem Prakash vs Union Of India And Ors on 22 August, 1984 - 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