Prem Prakash Vs. Union of India &
Ors [1984] INSC 151 (22 August 1984)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)
CITATION: 1984 AIR 1831 1985 SCR (1) 564 1984
SCALE (2)205
ACT:
Delhi Judicial Service Rules 1970-Vacancies
reserved for Scheduled Castes and Scheduled Tribes-Errors in calculating
reserved vacancies-If would prejudicially affect regularly selected Scheduled
Caste candidates.
Delhi Judicial Service Rules, 1970-Rules not
amended pursuant to the Administrative instructions-Whether the Administrative
instructions can prevail over the Rules- Whether Rules and Administrative
Instructions can be read together if there is no inconsistency between the two.
HEADNOTE:
Rule 18 of the Delhi Judicial Service Rules,
1970 (for short, the Rules) says that the Selection Committee shall prepare a
list of candidates in order of merit and forward it to the Administrator for
filling the vacancies then existing or any vacancy that may occur within a
period of one year of the preparation of the list. Rule 28 of the Rules lays
down that appointments made to the Service by competitive examination shall be
subject to order regarding special representation in the Service for Scheduled
Castes and Scheduled Tribes issued by the Central Government from time to time.
Paragraph 2.1 of the Brochure on "Reservation for Scheduled Castes and
Scheduled Tribes in Services" issued by the Central Government requires
that 15 per cent of the total vacancies are to be reserved for Scheduled Caste
candidates and 71/2 for Scheduled Tribe candidates.
Paragraph 4.2 of the Brochure prescribes that
the actual number of vacancies to be reserved for Scheduled Castes and
Scheduled Tribes in any recruitment should be determined on the basis of points
in the roster and also taking into account the reservations brought forward
from the previous year.
On 8th February, 1982, the Government of
India issued a Notification declaring that there would be no limit on the
period of validity of the list of selected candidates prepared to the extent of
declared vacancies either by the method of direct recruitment or through a
departmental competitive examination and that once a person is declared
successful according to the merit list of selected candidates which is based on
the declared number of vacancies, the appointing authority has the
responsibility to appoint him even if the number of vacancies undergoes a
change after his name has been included in the list of selected candidates.
565 In 1980, Respondent No. 3, High Court of
Delhi notified 16 vacancies of Sub-Judges for being filled through competitive
examination in the Delhi Judicial Service-11 vacancies were for open
candidates, 2 for Scheduled Castes and 3 for Scheduled Tribes which included
two carried forward vacancies also. The carried forward vacancies were
interchangeable in the sense that if candidates from Scheduled Tribes were not
available, the vacancies could be added to the quota reserved for Scheduled
Castes. The petitioners, Dal Chand Anand and Prem Prakash, who were members of
Scheduled Caste secured 10th and 11th position respectively in the merit list
of 11 candidates who qualified the examination and viva-voce test held in
pursuance of the above notification. They were Serial No. 3 Scheduled Caste
candidates. Since the petitioners did not figure in the final list of
candidates selected by the Administrator, Respondent No. 2, they filed present
writ petitions under Art. 32 of the Constitution to challenge their exclusion
and non-appointment.
Respondent No. 3 contended (1) that the
petitioners were excluded from the selections of 1980, on account of the fact
that only 11 candidates qualified in the examination of which 7 were general
candidates and therefore as against 7 general candidates only 1 Schedule Caste
candidate could be appointed; and (ii) That though the petitioners were in the
merit list of 11 persons for the year 1980, they could not be appointed as
Sub-Judges because two Scheduled Caste candidates who were wrongly excluded from
the reserved appointments of 1979 had to be accommodated in the merit list of
1980 and after adjusting them against the reserved vacancies of 1980, no
reserved vacancies were left for the petitioners.
Allowing the Writ Petitions,
HELD: (1) The error from which the
calculation of the High Court suffers is that the number of vacancies available
for the Scheduled Caste candidates was fixed by it according to the number of
candidates who qualified for the general seats. This is neither justified by
the Rules and administrative instructions nor indeed does such a method of
fixation of reserved vacancies disclose any acceptable basis. The quota of
seats available for reserved candidates cannot be made to depend on the
fortuitous circumstance as to how many candidates have qualified for the
general seats, since that would be contrary to the instructions contained in
paragraph 4.2 and 9.2 of the Brochure of 1978 and such a method will also lead
to the absurd and undesirable consequence that no candidate of the reserved
category will be appointed at all if only one or two candidates from the
general category qualify in the examination. The correct approach is to fix the
number of vacancies available for the reserved candidates on the basis of the
total number of vacancies which are intended to be filled at any particular
point of time. Therefore, the High Court could not have fixed the number of
vacancies available to the reserved candidates on the basis that only seven
persons had qualified for general seats. If a decision was taken to fill 10 or
11 posts only, the number of reserved vacancies should have been fixed upon
that basis and not on the basis that only 7 candidates had qualified for the
general seats.
[574D-E, G-H, 575A-B] 566 (2) In the process
of remedying injustice which was done to the 2 Scheduled Caste candidates of
1979, no injustice can be caused to the petitioners who had qualified for the
reserved seats in the examination held in 1980. Such a strange result is to be
avoided if not at all costs, at least within the framework of the Rules and the
administrative instructions governing the matter. Justice to one group at the
expense of injustice to another is perpetuation of injustice in some form or
the other. [577H, 57 D] (3) The statutory rules and administrative instructions
have to be read together unless they are contrary to each other. In the instant
case, since there is no in consistency between the statutory rules and the
administrative instructions, it is clear that the two have to be read together
by reason of Rule 28. Though the Rules of the Delhi Judicial Service have not
been amended so as to bring them inconformity with the administrative
instructions and notifications which have been issued by the Ministry of Home
Affairs, Department of Personnel and Administrative Reforms, from time to time,
that does not mean that administrative instructions can be ignored by the High
Court until that is done. Therefore, the Notification of 1982 is good authority
for adjusting the petitioners against the reserved vacancies for the year 1980,
since it is clear from the Notification (i) that if selected candidates are
available from the previous list, there should either be no further recruitment
until those candidates are absorbed or, in the alternative, vacancies which are
declared for the subsequent years should take into account the number of
persons who are already in the list of selected candidates who are still
awaiting appointment and (ii) that there should be no limit on the period of
validity of the list of selected candidates prepared to the extent of declared
vacancies and once a person is declared successful according to the merit list
of selected candidates, the appointing authority has the responsibility to
appoint him, even if the number of vacancies undergoes a change after his name
is included in the list of selected candidates. [577G, B-D, 576G-H; 577A]
ORIGINAL JURISDICTION: Writ Petition Nos.
4480 of 1980 and 2962 of 1981 (Under article 32 of the Constitution of India)
S.N. Jha for the Petitioner in W.P. 4480/80.
Girish Chandra for the Petitioner in W.P.
2962/81.
M.M. Abdul Khadar and R.N. Poddar for the
Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C. J. The petitioners, Prem Prakash and Dal Chand Anand, are members
of a scheduled caste. By these writ petitions under article 32 of the
Constitution, they ask for a writ of mandamus directing the respondents to
appoint them against 567 the vacancies reserved for members of Scheduled Castes
and Scheduled Tribes in the Delhi Judicial Service. They also ask for a writ of
prohibition to the effect that the respondents should not fill up the reserved
vacancies for which they competed, either by holding a fresh examination or by
appointing candidates who had qualified in any previous examination. The Union
of India, the Administrator of the Union Territory of Delhi and the Registrar
of the Delhi High Court are respondents 1, 2 and 3 to these petitions.
On September 26, 1979, the Registrar of the
Delhi High Court published a newspaper advertisement that the Delhi High Court
will hold an examination for recruitment of officers to the Delhi Judicial
Service on January 11, 12 and 13, 1980 in the time scale pay of Rs. 650-1200.
The advertisement stated that the total number of vacancies was 16, out of
which 2 were reserved for Scheduled Castes and 1 for Scheduled Tribes. In
addition, according to the advertisement, there were 2 carry-forward vacancies
for members of Scheduled Tribes. In case of non-availability of Scheduled Tribes
candidates, those vacancies were liable to be transferred as reserved vacancies
for Scheduled Castes candidates.
A competitive examination was held in
pursuance of the said advertisement in accordance with the Delhi Judicial
Service Rules, 1970 which were framed by the Lieutenant Governor of Delhi in
consultation with the High Court of Delhi. Rules 18 and 28 read thus:
"Rule 18-The Selection Committee shall
prepare a list of candidates in order of merit. Such list will be forwarded to
the Administrator for filling the vacancies then existing or any vacancy that
may occur within a period of one year of the preparation of the list."
"Rule 28-Appointments made to the Service by competitive examination shall
be subject to order regarding special representation in the Service for
Scheduled Castes and Scheduled Tribes issued by the Central Government from
time to time." The Brochure on 'Reservation for Scheduled Castes and
Scheduled Tribes in Services', (5th ed., 1978) issued by the Government of
India, Dept. of Personnel and Administrative Reforms, Ministry of Home Affairs
contains orders and instructions issued by 568 the Government of India from
time to time on the question of reservation of vacancies for Scheduled Castes
and Scheduled Tribes candidates. The relevant paragraphs of that Brochure read
as follows:
"2.1 Subject to Exemptions and
Exclusions referred in Chapter 3, the following reservations are in force in
favour of SC and ST in filling vacancies in posts and services under the Govt.
of India.
(1) Direct recruitment on an all India
basis:- SC ST (a) By open competition(i.e., 15% 71/2% through the UPSC or by
means of open competi- tive test held by any other authority)".
"4.2 The actual number of vacancies to
be reserved for SC and ST in any recruitment should be determined on the basis
of the points in the roster and also taking into account the reservations
brought forward from the previous year, the total number of reservations not
exceeding normally 50% of the total number of vacancies filled in that year.
However, the carry forward reserved vacancies would be available together with
the current reserved vacancies for utilisation even where the total number of
such reserved vacancies exceed 50% of the vacancies filled in that year
provided, the overall representation of SC/ST in the total strength of the
concerned grade or cadre is found to be inadequate, i.e., the total number of
SC/ST candidates in that grade has not reached the prescribed percentage of
reservation for SC/ST respectively, in the grade, as a whole".
"9.2 Advertisement of reserved vacancies
for posts filled by direct recruitment through examination:- Where direct
recruitment is made through examination, for reserved as well as unreserved
vacancies, a single advertisement would be issued for such examination but the
number of the vacancies reserved for SC and ST would 569 be specified clearly
in it and in case the required number of SC or ST candidates are not available
even by applying relaxed standards for the vacancy/vacancies reserved for them,
the remaining vacancy/vacancies should be filled by general candidate after
dereservation of such vacancy/vacancies, subject to the reservations being
carried forward as required." "11.1 Carryover of reservations:- If a
sufficient number of reserved communities candidates fit for appointments
against reserved vacancies are not forthcoming, such vacancies can be
dereserved after following prescribed procedure for dereservation as in Chapter
10 and thereafter they can be filled by candidates of other communities, but
the reservations shall be carried forward to subsequent three years of
recruitment (except in the case of..........................) where there will
be no carry forward of unfilled reserved vacancies, the total number of reservations
not exceeding normally 50% of the total number of vacancies to be filled in
that year. The surplus, if any, above 50% when the ceiling of 50% is applied,
shall be carried forward to the subsequent year of recruitment, subject,
however, to the condition that the particular vacancies carried forward do not
become time-barred due to their becoming more than three years old. However,
the carried forward reserved vacancies would be available together with the
current reserved vacancies for utilisation even where the total number of such
reserved vacancies exceeds 50% of the vacancies filled in that year provided,
the overall representation of SC & ST in the total strength of the
concerned grade or cadre is found to be inadequate, i.e., the total number of SC/ST
candidates in that grade has not reached the prescribed percentage of
reservation for SC/ST respectively, in the grade, as a whole".
"Note (2):-Any recruitment of SC/ST
candidates will first be counted against the additional quota brought forward
from the previous years in their chronological order. If SC/ST candidates are
not available for all the vacancies, the older, carried forward vacancies
should be filled first 570 and the comparatively later carried forward
vacancies should be further carried forward".
The petitioners appeared for the examination
and passed it, though by relaxation of the minimum standard prescribed for
passing the examination. They were then asked to appear at the viva voce test
conducted by the Selection Committee, which they did. Since, only seven open
candidates and four Scheduled Caste candidates qualified in these tests, the
High Court prepared a merit list of 11 candidates as against 16 vacancies which
were advertised. Dal Chand Anand, who is petitioner in Writ Petition No. 2962
of 1981, was 10th in the merit list while Prem Prakash, who is petitioner in
Writ Petition No. 4480 of 1980, was 11th in that list. They were respectively
3rd and 4th in the merit list amongst the 4 Scheduled Caste Candidates. Since
they did not figure in the final list of candidates selected by the
Administrator, they have filed these petitions to challenge their exclusion and
non-appointment.
A counter-affidavit has been filed on behalf
of respondent 3 by Shri Ramesh Sharma, Assistant Registrar of the Delhi High
Court. The position taken up by the Delhi High Court in that affidavit may be
summarized thus: The Delhi Judicial Service was constituted on August 2, 1971.
Rule 28, which provides for special
representation for members of the Scheduled Castes and Scheduled Tribes, is
applicable to the recruitment made through a competitive examination only and,
therefore, no reservations were made either in favour of Scheduled Castes or
Scheduled Tribes at the stage of the initial recruitment to the Service, which
was not by competitive examination. Representations were, however, made to the
Ministry of Law and Justice as a result of which, the Delhi Administration was
instructed administratively to take suitable steps, if necessary by amendment
of the recruitment Rules, so as to provide for reservations for the Scheduled
Castes and Scheduled Tribes at the initial constitution of the Service also. In
a meeting of officers of the Ministry of Law and Justice, the Delhi
Administration and the High Court, which was held in November, 1971, it was
decided that 15 per cent of the vacancies filled in the Delhi Judicial Service
should be reserved for Scheduled Castes and 71/2 per cent for Scheduled Tribes
and that, vacancies which ought to have been reserved for these categories at
the initial recruitment should be carried forward to the following year.
The statutory rules were not amended in
pursuance of this decision, which is but one instance of the wide chasm which
exists between the lip service paid to the need for 571 reservations for
backward classes and the actual performance in terms of social awareness.
The counter-affidavit says that the 6th
competitive examination at which the petitioners appeared was held in 1980. 16
Vacancies were notified, out of which 11 were for open candidates, 2 for
Scheduled Castes and 3 for Scheduled Tribes. Two out of the three vacancies
reserved for Scheduled Tribes were interchangeable in the sense that, if
candidates from Scheduled Tribes were not available, those vacancies could be
added to the quota reserved for Scheduled Castes.
The counter-affidavit of the High Court
contains a candid admission in paragraph 17 that when, in 1980 and 1981, the
High Court examined the question of reservation of vacancies for Scheduled Castes
and Scheduled Tribes right from the stage of initial constitution of the
Service in 1971, it found that "there was apparently a violation of
statutory Rules and the vacancies had been wrongly calculated by the Registry
of the High Court". The High Court rectified its error by recommending the
appointment of 2 Scheduled Caste candidates for the 1980 vacancies from amongst
the candidates who had qualified in the 1979 competitive examination but who,
on account of a mistaken calculation, were not appointed to the reserved seats.
We are happy to find that consistency in adhering to errors is not the
hobgoblin of our High Courts.
The factual position which emerges out of the
averments in the Writ Petitions and the counter affidavit filed on behalf of
the High Court is that though 16 vacancies were advertised, only 11 vacancies
could possibly be filled up.
The reason is that only 11 candidates passed
the competitive examination. Seven out of these 11 had competed for open seats
while four had competed for seats reserved for the Scheduled Castes If the four
reserved seats could be filled up by the appointment thereto of candidates who
appeared in the 1980 examination, there would be no difficulty in accommodating
the petitioners because. they are 10th and 11th in the merit list of 1980.
Normally, vacancies which are intended to be filled by holding an examination
in any particular year, are filled from amongst candidates who had appeared for
that examination. The situation in this case is, however, complicated by the
fact that two Scheduled Caste candidates, Ajaib Singh and Ram Swarup, who had
appeared for the competitive examination in the previous year, that is in 1979,
were wrongly denied appointments.
They had 572 passed the examination and
reserved vacancies were available in which they could and ought to have been
appointed. Ajaib Singh filed a Writ Petition in this Court (No 312 of 1980)
which was allowed by us by an order dated September 2, 1981.
That order reads thus :
"We are informed that the Delhi High
Court has decided in a full Court meeting to recommend the names of the
petitioner Ajaib Singh and another candidate Ram Swarup, for appointment to the
post for which they had applied, namely, the post of the Sub-Judge. The
duration of the panel which was prepared for the year 1979 expired on August
16, 1980, That makes it necessary to direct that the names of the petitioner
Ajaib Singh and the other candidate Ram Swarup should be included in the panel
for the year 1979 and the appointment of these persons be made by the Delhi
Administration despite the expiration of the period of that panel." The
High Court took the particular decision in a full Court meeting because it
found, and rightly so, that Ajaib Singh and Ram Swarup were denied appointments
due to an error on the part of its Registry in calculating the number of
reserved seats which were available in the year 1979. The error committed by
the High Court Registry is to be regretted and we hope that errors which betray
lack of care in matters which make or mar a person will not be repeated.
But the question which arose for the
administrative consideration of the High Court was whether the injustice done
to the two candidates should be perpetuated on the specious plea that, after
all, the High Court had taken a certain decision and that decision must be
respected, whether it is administrative or judicial. We are glad to find that
the High Court did not stand on a false sense of prestige and rectified the
injustice done to the two candidates by correcting an error for which they were
not to blame. On our part, we considered it unfair that they should be denied
appointments and be made to suffer injustice for the error of the Registry in
applying the reservation formula. The counter-affidavit filed on behalf of the
High Court shows that the first two seats, from out of the four seats which
were available to the Scheduled Caste candidates in the year 1980, have been
allotted to Ajaib Singh and Ram Swarup, subject to the result of these writ
petitions.
It is ironical that the rectification of
injustice done to some 573 two persons should result in injustice to two
others. But, that is exactly what has happened in this case, as if to
illustrate that one man's food is another man's poison. The contention of the
High Court is that though the petitioners were in the merit list of 11 persons
for the year 1980, they could not be appointed as Sub-Judges because, Ajaib
Singh and Ram Swarup who were wrongly excluded from the reserved appointments
of 1979 had to be accommodated in the merit list of 1980 and, after adjusting
them against the reserved vacancies of 1980, no reserved vacancies were left
for the candidates who were placed in the merit list of 1980. When, in
furtherance of the decision taken by the Full Court meeting of the High Court,
we directed on September 2, 1981 that the two candidates of 1979 must be
included in the 1979 panel and appointed as Sub-Judges despite the expiry of
the duration of that panel, little did we realise, and it was not so stated before
us, that the appointment of those two candidates of 1979 will mean the ouster
of these two candidates of 1980. Such a strange result is to be avoided, if not
at all costs, at least within the framework of the Rules and the administrative
instructions governing this matter. Justice to one group at the expense of
injustice to another is perpetuation of injustice in some form or the other.
The counter-affidavit of the Assistant
Registrar explains the arithmetic of the High Court decision as to why the petitioners
were excluded from the selections of 1980.
History has the habit of repeating itself
and, with great respect, the High Court has once again fallen into an error
while deciding whether, after accommodating Ajaib Singh and Ram Swarup in the
1980 selection, reserved vacancies were still available in which the
petitioners could be appointed.
The explanation of the High Court may best be
stated in the words of its Assistant Registrar. He says in paragraph 21 of his
counter-affidavit :
"It is submitted that in view of the
fact that only 11 candidates qualified in the examination of which 7 were
general candidates. Therefore, in accordance with the advice contained in the
D. O.
letter No. 36034/19/79-Est (SCT) dated August
13, 1979 of the Department of Personnel and Administrative Reforms, as against
7 general candidates only one Scheduled Caste candidate could be taken and
accordingly, 7 general candidates and 1 Scheduled Caste candidate and in
addition 2 more Scheduled Caste candidates as against 2 carried forward
exchangeable vacancies 574 of Scheduled Tribes were recommended for appointment
to the Delhi Judicial Service." The counter-affidavit says that the name
of Dal Chand Anand, who is petitioner in Writ Petition No. 2962 of 1981, was
recommended for appointment since he was 3rd amongst the four Scheduled Caste
candidates but that the, said recommendation was made under an erroneous belief
that a vacancy was available in which he could be appointed. When the mistake
was realised by the High Court, his name was dropped. In so far as the other
petitioner, Prem Prakash, is concerned, the explanation of the Assistant
Registrar is that no vacancy was available at all in which he could be
appointed since, he was 4th in the list of Scheduled Caste candidates.
The error from which the calculation of the
High Court suffers is that the number of vacancies available for the Scheduled
Caste candidates was fixed by it according to the number of candidates who
qualified for the general seats.
The counter-affidavit states expressly that
the availability of vacancies for candidates of the reserved category was
determined on the basis that only 7 candidates had qualified for the general
seats. This, according to us, is neither justified by the Rules and administrative
instructions nor indeed does such a method of fixation of reserved vacancies
disclose any acceptable basis. 16 Vacancies were advertised in the first
instance out of which, 11 were for general candidates and 5 for reserved
categories. It may be assumed that the Administration is not bound to fill all
the vacancies which are advertised and indeed, if the number of candidates who
qualify in the competitive examination is less than the number of vacancies
which are advertised, it is obvious that the vacancies which can be filled will
be less than the vacancies which are advertised. But the availability of
vacancies for the reserved categories cannot be made to depend upon the
accidental circumstance of how many candidates have qualified for general
seats. In the first place, that would be contrary to the instructions contained
in paragraphs 4.2 and 9.2 of the Brochure of 1978.
Secondly, such a method will lead to the
absurd and undesirable consequence that no candidate of the reserved category
will be appointed at all, if only one or two candidates from the general
category qualify in the examination. The correct approach is to fix the number
of vacancies available for the reserved candidates on the basis of the total
number of vacancies which are intended to be filled at any particular point of
time. According to paragraph 575
2.1 of the Brochure, 15% of the total
vacancies are required to be reserved for the Scheduled Caste candidates and 7
1/2% for the Scheduled Tribe candidates. Therefore, the High Court could not
have fixed the number of vacancies available to the reserved candidates on the
basis that only 7 persons had qualified for the general seats. If a decision
was taken to fill 10 or 11 posts only, the number of reserved vacancies should
have been fixed upon that basis and not on the basis that only 7 candidates had
qualified for the general seats. The High Court should have corrected its error
in these two cases with the same alacrity with which it corrected its error in
the case of the two Scheduled Caste candidates who had qualified in 1979.
There is an additional reason in support of
the view which we are disposed to take. On February 8, 1982 the Ministry of
Home Affairs, Department of Personnel and Administrative reforms, issued a
notification to the following effect :
"Sub:-Validity period of lists of
selected candidates prepared on the basis of direct recruitment/Department
competitive Examination.
The undersigned is directed to say that
reference are being received from time to time from Ministries/Deptts.
enquiring as to what should be the validity period of a list of selected
candidates prepared on the basis of direct recruitment or Departmental
competitive Examination Normally, in the case of direct recruitment a list of
selected candidates is prepared to the extent of the number of vacancies (other
persons found suitable being put on a reserve list, in case some of the persons
on the list of selected candidates do not become available for appointment).
Similarly, in the case of Departmental competitive Examinations the list of
selected candidates has to be based on the number of vacancies on the date of
declaration of results, as the examination is competitive and selection is
based on merit. A problem may arise when there is a fluctuation in the
vacancies after the list of selected candidates is announced.
The matter has been carefully considered.
Normally, recruitment whether from the open
market or through a 576 Departmental competitive Examination should take place
only when there are no candidates available from an earlier list of selected
candidates. However, there is a likelihood of vacancies arising in future: in
case, names of selected candidates are already available, there should either
be no further recruitment till the available selected candidates are absorbed
or the declared vacancies for the next examination should take into account the
number of persons already in the list of selected candidates awaiting
appointment. Thus, there would be no limit on the period of validity of the
list of selected candidates prepared to the extent of declared vacancies,
either by the method of direct recruitment or through a Departmental
Competitive Examination.
Once a person is declared successful
according to the merit list of selected candidates, which is based on the
declared number of vacancies, the appointing authority has the responsibility
to appoint him even if the number of the vacancies undergoes a change, after
his name has been included in the list of selected candidates. Thus, where
selected candidates are awaiting appointment, recruitment should either be
postponed till all the selected candidates are accommodated or alternatively
intake for the next recruitment reduced by the number of candidates already
awaiting appointment and the candidates awaiting appointment from a fresh list
from the subsequent recruitment or examination.
Ministry of Finance, etc. are requested to
bring the above instructions to the notice of all the appointing authorities
under them for information and guidance.
Sd/-(J. K. Sarma) Director." It is clear
from this notification that if selected candidates are available from the
previous list, there should either be no further recruitment until those
candidates are absorbed or, in the alternative, vacancies which are declared
for the subsequent years should take into account the number of persons who are
already in the list of selected candidates who are still awaiting appointment.
The notification further shows that there should be no limit on the period of validity
of the list of selected candidates prepared to the extent 577 of declared
vacancies. Once a person is declared successful according to the merit list of
selected candidates, the appointing authority as the responsibility to appoint
him, even if the number of vacancies undergoes a change after his name is
included in the list of selected candidates.
We must record our dissatisfaction at the
fact that the Rules of the Delhi Judicial Service have not been amended so as
to bring them in conformity with the administrative instructions and
notifications which have been issued by the Ministry of Home Affairs,
Department of Personnel and Administrative Reforms, from time to time. The
situation is virtually chaotic for which, we must clarify, the High Court of
Delhi cannot be blamed. It is surprising that though 13 years have gone by
since the Delhi Judicial Service was established, no attention whatsoever has
been paid to a matter which concerns the future of a large number of young men
and women who aspire for posts in the Judiciary. The instant case and the cases
of Ajaib Singh and Ram Swarup show that the worst sufferers of this inaction
are members of the Scheduled Castes and Scheduled Tribes. Sooner the Rules are
amended, easier will it be for the High Court to administer and superintend the
affairs of the subordinate Judiciary with the object of achieving the ideals
enshrined in Articles 16 (4), 38 and 46 of the Constitution.
Though the Rules ought to be amended, that
does not mean that administrative instructions can be ignored by the High Court
until that is done. The Assistant Registrar says in paragraph 9 of his
counter-affidavit that "administrative instructions cannot be allowed to
prevail over the statutory rules." That would be correct provided that the
administrative instructions are contrary to the statutory rules. In this case,
Rule 28 itself says that "Appointments made to the service by competitive
examination shall be subject to order regarding special representation in the
service for Scheduled Castes and Scheduled Tribes issued by the Central
Government from time to time." Therefore, far from their being any
inconsistency between the statutory rules and the administrative instructions
it is clear that the two have to be read together.
These writ petitions must therefore succeed.
Our reasons for allowing the petitions may be summed up thus: In the first
place..., in the process of remedying injustice which was done to the two
scheduled caste candidates of 1979, no injustice can be caused to the
petitioners who had qualified for the reserved seats in the exami- 578 nation
held in 1980. Secondly, the quota of seats available for reserved candidates
cannot be made to depend on the fortuitous circumstance as to how many
candidates have qualified for the general seats. The reserved quota must be
fixed on the basis of the total number of vacancies which are to be filled at a
given point of time. Thirdly, the notification of 1982 is good authority for
adjusting the petitioners against the reserved vacancies for the year 1980. The
statutory rules and administrative instructions have to be read together by
reason of Rule 28.
We accordingly direct that the High Court and
the Delhi Administration will take expeditious steps for notifying the
appointments of the petitioners, Dal Chand Anand and Prem Prakash, to the Delhi
Judicial Service. For purposes of seniority the former will rank higher than
the latter because that was their orders of seniority in the original merit
list of 1980. Since they have not actually worked as Sub-Judges during the
intervening period, they will not be entitled to any remuneration for that
period. They will however rank for seniority in the Delhi Judicial Service on
the footing that they were appointed when they ought to have been appointed,
that is to say, when the other candidates were appointed on the basis of the
result of the 1980 examination. In all other respects, including probation,
their appointment will be subject to the provisions of the relevant rules and
regulations.
In the result, the writ petitions are allowed
to the extent indicated above. Respondents 1 and 2 will pay to the petitioners
the costs of these petitions.
M.L.A. Petitions allowed.
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