Malkhan
Singh Vs. Union of India & Ors [1997] INSC 9 (7 January 1997)
A.M.
AHAMADI, SUJATA V. MANOHAR Mrs. Sujata
V. Manohar, J.
ACT:
HEAD NOTE:
The
petitioner is a practising advocate of more than 21 years' standing. He applied
for the post of an Additional District & Sessions Judge in the Delhi Higher
Judicial service in response to an advertisement which was issued in June 1985.
The advertisement was in respect of four vacancies out of which two vacancies
were in the general category, one was reserved for a Scheduled Caste candidate
and one was reserved for a Scheduled Tribe candidate. The petitioner who
belongs to a Scheduled Caste, applied for one of these vacancies. For the two
vacancies which were reserved for general category candidates, one Mr. Malhotra
and one Mr. singh were appointed. As against the two vacancies which were
reserved for the Scheduled Caste and Scheduled Tribe candidates, three
scheduled Caste candidates were selected. No. suitable Scheduled Tribe
candidate was, however, available. The select panel approved by the Full court
of the Delhi High Court. The three candidates on the select panel, in the order
of the merit were: 1 Padam Singh, (2) the petitioner and 3 L.D Mual. Padam
Singh who was at the head of the select Panel was at the head of the Select
Panel was appointed against the vacancy for a Scheduled Caste candidate. The
petitioner who was at the serial No.2 was not appointed in the vacancy which
was meant for a Scheduled Tribe candidate and it was kept unfilled. There being
no other vacancies, the petitioner and L.D Mual were not given appointments.
Several
vacancies have arisen thereafter, but the petitioner was not appointed. Hence
he filed a written petition in the Delhi High Court against his not being
appointed. A Full Bench of the Delhi High Court has considered the case of the
petitioner along with the cases of several other petitioner who had also
challenged their non appointment in respect of subsequent vacancies. In the
case of the petitioner the Delhi High Court has held that he was not entitled
to be appointed and has dismissed his petition.
In
order to understanding the claim of the petitioner it is necessary to examine
the position regarding filling of vacancies in respect of Additional District
and Sessions Judges from the year 1979 onwards. In 1979 there was one vacancy
for the post of Additional District & Sessions Judge. For filling of
vacancies in the Delhi Higher Judicial Service after giving due effect to
reservations in favour of the Scheduled Castes and Scheduled Tribes, under Rule
22 of the Delhi Higher Judicial Service Rules 1970, reservations have to be
made in accordance with the orders issued by the Central Govt. from time to
time. Accordingly a roaster is maintained. The vacancy in the 1979 was at roster
point 4 which is reserved for Scheduled Tribe candidate. Since it was a single
vacancy, it was treated as unreserved and it was filled by a general category
candidate, Smt. Usha Mehra. Thereafter, in the 1981 three vacancies arose.
These vacancies were at a roster points 5,6 and 7. Since the vacancy at the
roster point 4 had been filled by a general category candidate, the reservation
in favour of a Scheduled Tribe candidate was shifted to the roster point 5.
Roster point 6 was for a general category. Roster point 7 was for a Scheduled
Caste candidate. However, roster point 7 was treated as for general category
candidate, Since out of three vacancies only one could be reserved. In other
words, the three vacancies which arose in 1981 were considered as one for a
Scheduled Tribe candidate and two for general category candidates. The two
roster points 6 and 7 for general category candidates were filled after
advertisement. However, the vacancy which was reserved fora Scheduled Tribe
candidate could not be filled since no suitable candidate was available. It
was, thereafter, carried forward.
In
1983, one vacancy was advertised for a Scheduled Tribe candidate. To this
vacancy roster point 5 was applied which was reserved for a Scheduled Tribe
candidate and which had remained unfilled in 1981. Once again no suitable
candidate was available. It was a proposal was made to the Central Govt. for dereservation
of that vacancy.
The
next recruitment was in 1985. Four vacancies were advertised. These were at
roster points 8,9,10 and 11.
All
these roster points are meant for the general category candidates. However, the
reservation for a Scheduled Tribe candidate at roster point 4 had remained
unfilled and had been carried forward in 1981 as well as in 1983. However, the
reservation for a Scheduled Tribe candidate. Roster point 9 was kept for a
Scheduled Caste candidate in view of the fact that in 1981, roster point 7
which was for a scheduled Caste candidate, had been filled by a general
category candidate. Hence the reservation at the roster point 7, was
transferred to roster point 9. Roster points 10 and 11 remained for general
category candidates. These roster points 10 and 11 remained for general
category candidates. These roster points 10 and 11 were filled by general category
candidates. The roster points 10 and 11 were filled by the general category
candidates. The roster point which has meant for a Scheduled Caste candidates
(roster point 9) was filled by Padam Singh which roster point 8 for a Scheduled
Tribe candidate once again remained unfilled.
It is
the contention of the petitioner that this was the third recruitment year of
carrying forward a vacancy meant for a Scheduled Tribe candidate. As per the
relevant rules and instructions applicable to this roster, in the third year of
carry forward, the Scheduled Caste vacancy was exchangeable with a Scheduled
Caste vacancy. Hence he being on the select panel in that year for a Scheduled
Caste candidate, should have been appointed to the vacancy which was meant for
a Scheduled Tribe candidate by exchanging it for a Scheduled Caste candidate.
In
order to appreciate this submission it is necessary to refer to the relevant
rules. The Brochure on reservation for Scheduled Castes and Scheduled Tribes in
services issued by the Govt. of India, Department of Personnel and
Administrative Reforms, Ministry of Home Affairs contain orders and
instructions issued by the Govt of India from time to time on the question of
reservations of vacancies for Scheduled Castes and Scheduled Tribes. Chapter 8
of this Brochure deals with the procedure for filling reserved vacancies in
recruitment through U.P.S.C or by advertisement. On the subject pf a single
vacancy arising in any given year which is meant for a reserved category
candidate, the instructions of the Department of Personnel and A.R.O.M
No.1/9/74-Estt. (SCT) dated 29th of April, 1975 state that the matter has been
considered in the light of the judgment of this Court dated 11th of October,
1973 in the case of Arati Ray Choudhury v. union of India & ors.(vide AIR
1974 SC 532). It was now been decided in partial modification of the earlier
orders referred there that "where only one vacancy occurs in the initial
recruitment year and the corresponding roster point happens to be for a
Scheduled Caste or Scheduled Tribe, it should be treated as unreserved and
filled accordingly and the reservation carried forward to subsequent three
recruitment years hitherto. In the subsequent year(s), even if there is only
one vacancy, it should be treated as "reserved" against a carried
forward reservation from the initial recruitment year and a Scheduled
Caste/Scheduled Tribe candidate, if available, should be appointed in that
vacancy, although it may happen to be the only vacancy in that recruitment
year......". It was in the light this instruction that in 1979 when a
single vacancy arose at roster point 4 which was reserved for a Scheduled Tribe
candidate. It was filled by a general category candidate and the reservations
was carried forward to the next three recruitment years. This also explains why
in 1981 the carried forward vacancy for a Scheduled Tribe candidate remained
unfilled and was carried forward to 1983 when once again the vacancy for a
Scheduled Tribe candidate remained unfilled. A proposal, however, for dereservation
was submitted for the purpose of filling it by a general category candidate. We
are not concerned with this aspect. What is material to note is that both in
1989 and in 1983 the vacancy for a Scheduled Tribe candidate remained unfilled
and the reservation was carried forward while other candidates were recruited.
In 1985 therefore, the reservation which was for a Scheduled Tribe candidate
was being advertised for the third time.
Chapter
11 of the Brochure deals with carrying forward of reservations and exchange of
reservation between Scheduled Castes and Scheduled Tribes. Paragraph 11.1
states as follows :- "11.1 carry forward of reser vations.
If
sufficient number of Scheduled Castes and Scheduled Tribes candidates fit for
the appointment against reserved vacancies are not available, such vacancies
can be dereserved after following the prescribed procedure for dereservation as
in chapter 10 and such reserved vacancies can be filled by candidates of other
communities. After such dereservation, reservations are carried forward to
subsequent three recruitment years.....
NOTE
(1) : Recruitment year shall mean a 'calendar year' and for purposes of the
three years' limit for carry forward of reserved vacancies shall mean the in
which recruitment is actually made.
NOTE
(2) : .........
Paragraph
11.2 as follows .....
"11.2
Exchange of reservation between Scheduled Castes and Scheduled Tribes.
While
vacancies reserved for Scheduled Castes and Scheduled Tribes may continue to be
treated as reserved for the respective community only, Scheduled Tribes
candidates may also be considered for appointment against a vacancy reserved
for Scheduled Castes candidates and vice-versa where such a vacancy could not
be filled by a Scheduled Caste or Scheduled Tribe candidate even in the third
year to which the reservation is carried forward. The normal provision is that
the exchange is permissible only for the reservations which have been carried
forward to third and subsequent year of recruitment.........." There is
considerable merit in the contention of the petitioner that 1985 was the third
recruitment year for the reservation meant for a Scheduled Tribe candidate and
in that year the reservation could have been exchanged for a Scheduled Caste
candidate, especially in view of the definition of "recruitment year"
in Note (1) to paragraph 11.1. The benefit of such exchange was not given to
the petitioner because of the erroneous view taken by the High Court that the
post was not exchangeable in 1985. We need not, however, examine this matter
any further because the petitioner has by now attained the age of fifty years
and he has very fairly accepted that it would not now be appropriate to appoint
him as an Additional District Judge, and he will be content if his stand is
vindicated.
In
these circumstances, we pass no order on the special leave petition which is
disposed of.
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