Jagjit Singh Vs. State of Punjab
[1978] INSC 74 (28 March 1978)
SINGH, JASWANT 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]
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.
Back
