Vs. State of Haryana & Ors  INSC 353 (3 August 1995)
K. Ramaswamy, K. Paripoornan, K.S.(J)
1996 AIR 351 1995 SCC (5) 625 1995 SCALE (5)56
O R D
have heard the learned counsel on both sides. The undisputed facts are that the
appellant as a general candidate and the third respondent, Dr. Nitya Anand to
backward class quota were selected for appointment as lecturer in the Haryana
Medical Education Service as per H.M.E.S. Rules, 1965 (for short, `the Rules').
The Public Service Commission recommended the names of the appellant and Dr. Nitya
Anand along with three other candidates for appointment as lecturers. It would
appear that Dr. Diwakar Jain and Dr. Sidharth Dass had not joined the service.
Dr. Om Prakash Kalra initially had joined the service, he too left the service.
Consequently the appellant, as general candidate and Dr. Nitya Anand remained
question is whether the appellant is senior to Nitya Anand. The contention of
the appellant is that since the order of merit given by the Selection Committee
and the letter of appointment do indicate that the appellant is high up in the
order of merit to Dr. Nitya Anand, he is senior to the later. While maintaining
inter se seniority by wrong interpretation Dr. Nitya Anand has been made senior
to the appellant which is contrary to the IInd proviso to Rule 13 of the Rules.
This contention was not accepted by the High Court in the impugned Judgment
dated May 3, 1993 in Civil W.P. No. 4946/93 by the
Punjab & Haryana High Court at Chandigarh. Shri Manoj Kumar, learned counsel appearing for the appellant relying
upon the instruction issued by the Chief Secretary, dated April 27,1972 and the
Judgment of the Warehousing Corporation in Civil W.P. No.2006/92 dated June 2,
1992 contended that when the Selection Committee had mentioned inter se
seniority in the order of merit, the State has no power to interfere with the
inter se seniority.
same seniority shall be continued to be maintained while fixing inter se
seniority after the appointment given to the respective candidates. The High Court,
therefore was not right in upholding the action of the respondents. The learned
counsel for the respondents have resisted the contention.
have given our anxious consideration to the respective contentions. The
question is whether Dr. Nitya Anand is senior to the appellant. In 100 point
roaster maintained by the State Government, the Government have earmarked some
places to the reserved candidates. In the instructions issued by the Chief
Secretary on April 27, 1972, it was specifically stated that the vacancies
reserved for Scheduled Castes and Backward Classes shall be filled up to those
specified points enumerated in the roaster. To give effect to the Public Policy
of reservation envisaged in Article 16(4) read with Articles 14 and 16(1) and
consistent with Art. 335, the State prescribed certain percentage of posts or
vacancies and they are required to be filled as per the roaster. Admittedly,
initially 2% posts were reserved for the backward classes which was later
increased to 10% .
1 to 9 were filled up by the general candidates.
consequence of the reservation to the backward classes, vacancy No.10 was
reserved for the backward classes.
Dr. Nitya Anand belongs to the backward class.
question, therefore, is whether the placement of Dr. Nitya Anand in the 10th
place and relegation of the appellant to lower in the order of ranking in the
roaster is valid in law. It is true that Rule 13 of the Rules envisages that
the seniority inter se of members of the service shall be determined by the
length of continuous service on any post in the service provided further that
in the case of two or more members appointed by direct recruitment, the order
of merit determined by the Commission shall not be disturbed in fixing the
seniority. In other words, where the inter se merit has been determined by the
public Service Commission or the Selection Committee, as the case may be, and
recommended to the Government for appointment, while accepting the
recommendations so made, the Government do require to maintain the order of
merit determined by the Public Service Commission/Committee. But the question
is whether the merit list prepared gets disturbed, then the roaster has been
maintained and the placement of the candidates in the order specified in the
roaster when filled up and is it illegal, arbitrary or unconstitutional. It is
seen that when the roaster is maintained to give effect to the constitutional
policy of reservation to render socioeconomic justice to the concerned
sections, respective places assigned to the candidates belonging to them,
general candidates, backward classes or Scheduled Castes or Scheduled Tribes,
as the case may be, the change in the order of merit inevitably get affected. If
original order of merit prepared by the Public Service Commission or Selection
Committee, if remains unaffected, roaster becomes redundant and always remains
unimplemented. The reserved candidates always remain at the bottom of the
select list unless selected as general candidates in the order of merit. To
relieve such injustice and hardship, roaster is maintained and vacancies are
filled up in the order maintained therein.
placement of candidates shall be to the respective points fixed in the roaster.
Take for instance vacancy No. 1 and 6, as pointed out in the Chief Secretary's
letter have admittedly been reserved for Scheduled Castes. Suppose recruitment
was made to fill up ten vacancies, three candidates from Scheduled Castes were
selected. The first one as general and second and third were selected on the
basis of reserved quota. The question is whether the first candidate will be
put in the quota allotted to the Scheduled Castes in the roaster. Having been
selected as a general candidate, though he is more meritorious than the second
and third candidates, he will not get the placement in the roaster, reserved
for Scheduled Castes i.e. No. 1 and 6 points. Consequently candidates Nos. 2
and 3 will get the placement at No.1 and 6 and the first candidate will get the
placement in the order of merit along with the general candidates according to
the order of merit maintained by the Selection Committee or the Public Service
Commission. He cannot complain that having been selected in the merit, he must
be placed in the placement reserved for Scheduled Castes at point No. 1 in the
roaster. Equally, though general candidate is more meritorious in the order of
merit prepared by the Public Service Commission or the Selection Committee,
when the appointments are made and the vacancies are filled up according to the
roaster, necessarily and inevitably the Reserved candidates though less
meritorious in the order of merit maintained by the Public Service Commission
would occupy the respective places assigned in the roaster. Thereby they steal
a march over some of the general candidates and get seniority over the general
candidates. This scheme is, therefore, constitutional, valid and is not
Chief Secretary in his letter obviously was in error in directing to maintain
the roaster the same inter seniority maintained by the Public Service
Commission or Selection Committee. If that is given effect to, the roaster
points would remain unfilled and rotation therein get disturbed. It is obvious
that the interpretation of the Rule by the Chief Secretary was found favour
with the Division Bench which was strongly relied upon by the appellant. The
order of merit indicated in the second proviso would be applicable only inter
se to the general candidates or reserved candidates but gets changed when
vacancies are filled up as per roaster and appointments are made thereunder.
The High Court, therefore, was right in holding that the 2nd proviso to Rule 13
is in applicable to the facts and was also right in its finding that when
appointments are made to fill up the vacancies in the order of roaster, the
order of merit prepared by the Selection Committee get changed. In these
circumstances, the appeal is dismissed but without costs.