Supreme Court of India
KULWINDER PAL SINGH AND ANR.versusSTATE OF PUNJAB AND ORS.
- Citation
- 2016 INSC 413
- Decided
- 12 May 2016
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
The Court held that mere inclusion in the select list does not confer an indefeasible right to appointment; the government may lawfully refrain from filling vacancies provided the decision is not arbitrary, and de‑reservation of a Scheduled‑Caste reserved post was impermissible under the Punjab SC & BC Act, 2006 and Article 16(4B), thus the appellants have no legal right to the unfilled posts.
Summary
The Punjab Public Service Commission advertised 52 posts of Punjab Civil Services (Judicial Branch) in 2007‑08, with 27 General and 25 reserved seats. After the examination, 27 General, 10 SC and 5 OBC candidates joined, and the remaining eight reserved posts were de‑reserved; seven of these were filled by General candidates and one by an OBC candidate. Three General candidates who were next in the merit list did not join and sought appointment to the resulting vacancies. The High Court dismissed their petitions, holding that the select list does not create a vested right and that the vacancies were already exhausted due to earlier appointments, including temporary posts created for the “Sidhu scam” case. On appeal, the Supreme Court affirmed that inclusion in the select list is not a guarantee of appointment, that the government’s decision not to fill the vacancies was not arbitrary, and that de‑reservation of a Scheduled‑Caste post violated the Punjab SC & BC Act, 2006 and Article 16(4B). Consequently, the appellants have no legal right to the unfilled posts. The appeals were dismissed.
Issues considered
- Whether a candidate whose name appears in the select list has a vested right to appointment.
- Whether the government's refusal to fill the vacancies is arbitrary or unreasonable.
- Whether de‑reservation of reserved category posts, particularly a Scheduled‑Caste post, is permissible under the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 and Article 16(4B) of the Constitution.
- Whether the appellants can claim appointment against existing vacancies after the select list has been exhausted.
- Whether the High Court erred in entertaining the de‑reservation issue not raised before it.
Legislation cited
- Constitution of Indias. Art.14, s. Art.16(4B)
- Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006s. 7
Subjects
appointmentselect listreservationde‑reservationArticle 14Article 16Punjab Civil Servicespublic service commissionequal opportunityadministrative discretion
Judgment
[2016] 4 S.C.R. 439
KULWINDER PAL SINGH AND ANR. A
v.
STATE OF PUNJAB AND ORS.
(Civil Appeal Nos. 5035-5036 of2016)
MAYl2,2016 B
[T. S. THAKUR, CJI AND R. BANUMATHI, J.]
Service Law - Appointment - Claim for - Advertisement for
filling 52 posts of Punjab Civil Services (Judicial Branch) - Out of
52 posts 27 were General category and 25 were reserved (including
reservation of 10 posts for Scheduled Castes) - After final result of c
the examination 27 candidates from General category, 10 candidates
from Scheduled Castes and 5 from Other Backward Classes were
declared successful and consequently joined service - 8 posts were
de-reserved in respect of remaining unfilled vacant posts - Against
the de-reserved 8 posts, 7 candidates from General Category D
(candidates upto SI.No. 34 in the merit list) and 1 from Other
Backward Classes were offered appointment - Three candidates of
General Category since did not accept the appointment, candidates
at serial Nos. 35, 36 and 37 sought issuance of appointment against
the three vacant posts - The Administrative Committee of High Court
denied appointment taking note of the fact that pursuant to direction E
of Supreme Court to appoint 22 candidates selected in the years
1998, 1999, 2000 and 2001, State Government had sanctioned 16
posts to accommodate the 22 appointments (as only 6 posts were
available then) which were liable to be abolished as and when the
vacancies became available and thus the 3 vacancies were consumed F
- Writ Petition - Dismissed by High Court - On appeal, held: Finding
place in Select List does not give right of appointment to the
candidate - It is open to Government not to fill up the vacancies -
However, such decision of the Government should not be arbitrary
and unreasonable - As agaif!St the 27 posts of General Category
advertised, 31 candidates had already joined - It is not permissible G
to fill up the vacancies over and above the vacancies advertised -
De-reservation of? posts which were filled up by General Category
candidates was also not correct - The appellants cannot claim any
legal right in respect of the posts of reserved category remaining
unfilled.as the candidates much more than the vacancies advertised, H
439
440 SUPREME COURT REPORTS [2016] 4 S.C.R.
A we.re permitted_to join.
Constitution of India - Art. 14 - Art. 14 does not envisage
negative equality - Merely because some persons are granted benefit
illegally or by mistake, it does not confer right upon the appellants
to claim equality.
Dismissing the appeals, the Court
B
HELD: 1. It is well-settled that merely because the name
of a candidate finds place in the Select List, it would not give him
indefeasible right to get an appointment as well. The name of a
candidate may appear in the merit list but he has no indefeasible
right to an appointment. It is always open to the Government
c not to fill up the vacancies, however such decision should not be
arbitrary or unreasonable. Once the decision is found to be based
on some valid reason, the Comi would not issue any mandamus
to Government to fill up the vacancies. [Paras 11, 12, 13) [446-E;
447-B-C)
D Food Corporation of Ind{a and Ors. v. Bhanu Lodh
and Ors. 2005 (2) SCR 350 : (2005) 3 SCC 618; All
India SC & ST Employees 'Association & Anr. v. A. Arthur
Jeen & Ors. 2001 (2) SCR 1183 : (2001) 6 SCC 380
and Union of Public Service Commission v. Gaurav
Dwivedi and Ors. 1999 (3) SCR 649 : (1999) 5 SCC
E 180; State of Orissa & Am'. v. Rajkishore Nanda and
Ors. (2010) 6 SCC 777: 2010 (7) SCR 301; Mano}
Manu and Anr. v. Union of India & Ors. 2013 (10)
SCALE 204: (2013) 12 sec 171:20J3 (10) SCR 8 -
relied on.
F 2. Twenty two other candidates were declared successful
by the Supreme Court pertaining to the selection of the years
1998, 1999, 2000 and 2001 as Civil Judges (Junior Division),
they were to be accommodated, as rightly resolved by the
Administrative Committee in the meeting dated 06.07.2011. The
three resultant vacancies of the year 2007-2008 stood consumed
G
with the joining of the said seventeen candidates and the same
could not be filled up from the select list of that year. The decision
of the Administrative Committee observing that the three
resultant vacancies stood consumed is based on factual situation
arising there and cannot be said to be arbitrary. [Para 13) [447-
H C-D)
KULWINDER PAL SINGH AND ANR. v. STATE OF PUNJAB 441
AND ORS.
3. The High Court was right in finding fault with the de- A
reservation of the seven posts which were filled by candidates
belonging to General Category. Out of 52 posts of Pun.iab Civil
Service (Judicial Branch) advertised for the year 2007-2008, 08
posts of reserved category were not filled up and Public Service
Commission de-reserved the same. Out of the said eight de-
B
reserved posts, one post was filled up by a Backward Class
candidate and the remaining seven posts by General Category
candidates. As observed by the High Court, so far as two posts
of physically handicapped, three posts of ex-servicemen and one
post of sports person is concerned, there was no statutory
prohibition in respect of de-reservation. However, in respect of c
de-reservation of one post of Scheduled Caste category, Section
7 of Punjab Scheduled Castes and Backward Classes (Reservation
in Services) Act, 2006, there is a bar on de-reservation of the
post reserved for scheduled caste candidates. However, sub-
clause (2) provides an exception to this general rule by laying
D
down that in public interest the authorities may by passing an
order in writing de-reserve the seats reserved for candidates
belonging to Scheduled Castes category. After insertion of clause
(4B) in Article 16 of the Constitution vide Eighty First
(Amendment) Act, 2000, de-reservation could not have been
done. Under Article 16(4B) of the Constitution of India, unfilled E
vacancies reserved for Scheduled Castes or Scheduled Tribes
candidates are to be carried forward independent of ceiling of
reservation of fifty per cent. The seats reserved for Scheduled
Castes and Scheduled Tribes categories are to be filled only by
specified category. [Paras 15,16] [448-C-F; 449-C-D]
F
4. Article 14 of the Constitution oflndia is not to perpetuate
illegality and it does not envisage negative equalities. Merely
because some persons have been granted benefit illegally or by
mistake, it does not confer right upon the appellants to claim
equality. [Para 17] [449-F; 450-B-C]
G
State of U.P. And Ors. v. Rajkumar Sharma And Ors.
(2006) 3 SCC 330 : 2006 (2) SCR 877 - relied on.
5. The plea of the appellants to consider their case as against
the existing vacancies, does not merit acceptance. Appointment
to an additional post or to existing vacancies would deprive H
442 SUPREME COURT REPORTS [2016) 4 S.C.R.
A candidates who were not eligible for appointment to the post on
the date of submission of the applications mentioned in the
advertisement but became eligible for appointment thereafter.
[P~r.a 18] 1_450-D]
6. As against twenty seven posts of general category
B advertised for the year 2007-2008, thirty one general category
candidates have joined and are working. The vacancies cannot
be filled up over and above the number of vacancies advertized,
recruitment of the candidates in excess of the notified vacancies
would amount to denial of equal opportunity to eligible candidates.
Wara 141 [447-E-FJ
c
Rakhi Ray And Ors. v. High Court of Delhi And Ors.
(2010) 2 SCC 637 : 2010 (2) SCR 239 - relied on.
7. The High Court rightly held that the candidates much
more than the vacancies advertised have already been permitted
D to join and thus the appellants cannot claim any legal right in
respect of the posts of reserved category remaining nnfilled. The
impugned judgment docs not suffer from any infirmity warranting
interference in exercise of jurisdiction under Article 136 of the
Constitution of India. [Para 18) [450-E)
E Gujarat State Deputy Executive Engineers' Association
v. State of Gujarat & Ors. (1994) 2 SLR 710 (SC):
(1994) Supp. 2 SCC 591 - referred to.
Case Law Reference
(1994) Supp. 2 sec 591 referred to Para6
F 7905 (2) SCR 350 relied on Para 12
2001 (2) SCR 1183 relied on Para 12
1999 (3) SCR 649 relied on Para 12 ·
2010 (7) SCR 301 relied on Para 11
7013 (10) SCR 8 relied on Para 13
G
2010 (2) SCR 239 relied on Para 14
7006 (2) SCR 877 relied on Para 17
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5035-
5036 of20 I 6.
H From the Judgment and Order dated 13.02.2012 in CWP No.
KULWINDER PAL SINGH AND ANR. v. STATE OF PUNJAB 443
AND ORS.
20135 of 2008 and CWP No. 20189 of2008 passed by the High Court A
of Punjab & Haryana at Chandigarh.
Ms. Kamini Jaiswal, Ms. ShumailaAltaf, Ad vs. for the Appellant.
Manjeet Singh, Sr. Adv., Rakesh Khanna, AAG, Mrs. Vivekta
Singh, Rahul Gupta, Jasdeep Dhillon, Kuldip Singh, Advs. for the
Respondents. B
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. These appeals are preferred againstthe common judgment dated
13.02.2012 whereby the High Court of Punjab and Haryana dismissed c
the writ petitions C.W.P. No.20135 of2008, C.W.P. No.20189 of2008
and C. W.P. No.21746 of2008, holding that the appellants cannot claim
any legal right in respect of the posts remained unfilled as the select list
stood exhausted with the joining of the candidates to the extent of posts
advertised. ·
D
3. Brief facts which led to filing of these appeals are as follows:
Punjab Public Service Commission issued advertisement for filling up 52
posts of Punjab Civil Services (Judicial Branch) vi de advertisement dated
07.03.2007: Out of 52 posts, 27 posts were for General Category; 25
posts for reserved category which included 03 posts for Ex-servicemen;
E
02 posts for Physically Handicapped; I 0 posts for Scheduled Castes; 03
posts for Scheduled Caste Ex-servicemen; 05 posts for Backward
Classes; 01 post for Backward Class Ex-servicemen and 01 post for
Sports Person. Preliminary examination was conducted on 27.05.2007.
The main examination was conducted from 20'h to 22nd July, 2007. The
viva voce was conducted from 28',, to 30:h November, 2007 and final F
result was declared on 01.12.2007. 27 candidates from general category,
10 candidates from scheduled castes and 05 candidates from backward
classes were declarnd successful and have joined in terms of letters of
appointment issued to them. Eight posts were de-reserved in respect of
the remaining unfilled vacant posts. As against the said de-reserved posts,
G
seven candidates from the general category i.e. candidates upto SI. No.34
and 01 candidate from backward classes were offered appointments.
However, three candidates belonging to general category namely Sum it
Garg,Vijayant Sehgal and Yogesh Chaudhary placed at SI. No. I, 5 and
32 respectively did not join the service. Resultantly, thi1ty one general
category candidates accepted the appointment and joined service. H
444 SUPREME COURT REPORTS [2016] 4 S.C.R.
A 4. The appellants, who belong to general category have appeared
in preliminary examination and subsequently in the main examination
including viva voce figured in the final merit list as they stood at SI. Nos.
37 and 36 and Parminder Singh Grewal at SI. No. 35. Since three
candidates did not join service, the appellants submitted the representation
on 02.04.2008 to the High Court for issuance of appointment orders to
B them. The representation of the appellants was considered in the sixteenth
meeting of the Administrative Committee held on 08.12.20 I 0 and it was
resolved to recommend the names of the appellants subject to approval
of the Full Court. Again the matter was considered in the eighteenth
meeting of the Administrative Committee held on 06.07.2011 wherein it
c was decided that the appellants cannot be offered appointments due to
lack of vacancies. In Punjab, there was an ongoing litigation regarding
selection of the judicial officers (Junior Division) in 1998, 1999, 2000 and
2001 (known as Sidhu scam). In the said litigation in C.W.P. No.1626
of2003, as per the order of the Supreme Court, twenty two candidates
were to be appointed. At that time in the Punjab Judicial Service, only
D
six posts were available and therefore sixteen temporary posts were
sanctioned by the Punjab Government on 22.07.2008 with a specific
condfoon that those temporary posts shall be adj~sted against the
vacancies created due to future retirements/promotions/vacancies etc.
and these sixteen posts shall be abolished one by one as and when a
E vacancy is available. In the meeting held on 06.07.2011, the
Administrative Committee took note of the order of this Court and
observed that three resultant vacancies of the year 2007-2008 stood
consumed with the joining of seventeen candidates of the litigation
pertaining to Sidhu scam case.
F 5. Feeling aggrieved, appellants filed writ petitions before the High
Court contending that three vacancies which remained unfilled due to
non-joining of three candidates should have been offered to them as
they were next in the order of merit. The High Court dismissed the writ
petitions holding that the appellants have no right to be appointed against
the vacancies falling vacant due to non-joining of three candidates of
G general category. It was further held that as against 27 vacancies
available for general category candidates, 31 general category candidates
have already joined and are actually working i.e. candidates much more
than the vacancies advertised have been permitted to join and thus the
select list of2007-2008 stands exhausted. Aggrieved thereof, appellants
H have preferred these appeals. Be it noted that Parmin,Jer Singh Grewal
KULWINDER PAL SINGH AND ANR. v. STATE OF PUNJAB 445
AND ORS. [R. BANUMATI-11, J.]
whose writ petition also came to be dismissed by the common judgment A
has not preferred any appeal.
6. Learned counsel for the appellants Ms. Kamini Jaiswal submitted
that the appellants had a right to be appointed in lieu of three vacancies
falling vacant on account of non-joining of the candidates. To substantiate
the contention, learned counsel relied on Gujarat State Deputy Executive B
Enf{ineers 'Association v. State of Gujarat & Ors., ( 1994) 2 SLR 710
(SC): (1994) Supp. 2 SCC 591. It was contended that the High Court
erred by considering the issue of de-reservation of post even though the
same was not raised before it. It was further urged that once the High
Court concluded its view upon de-reservation, High Court should have
directed cancellation of other candidates on their said de-reserved post
c
as a necessary corollary of holding de-reservation improper.
7. Per contra, learned counsel for the respondents contended that
because the names of appellants were .in the select list, the appellants
have no indefeasible right of appointment. Drawing our attention to
Annexure P-10, learned counsel submitted that the said three resultant D
vacancies of the year 2007-2008 were consumed with the joining of
seventeen candidates relating to "Sidhu scam case" and the appellants
have no right to claim appointment.
8. We have carefully considered the rival contentions and perused
the impugned judgment and material on record. E
9. As against 27 posts of general category advertised, all 27
candidates joined. Out of de-reserved 08 posts, 0 I post was filled by a
backward class candidate and the remaining 07 posts by general category
candidates. Admittedly, Sumit Garg, Vijayant Sehgal and Yogesh
Chaudhary placed at SI. Nos. I, 5 and 32 of the merit list to whom F
appointment letters were issued, have not joined. Resultantly, as against
27 posts advertised for general category, 31 general category candidates
have joined and are working.
I 0. There is no denying that the appellants were placed in the
select list at SI: Nos. 35, 36 and 37. In the sixteenth meeting of G
Administrative Committee held on 08.12.20 l 0, considering the
representation of the appellants it was "resolved to reco111111end. suNect
to approval of the full court, to the Government of Punjab for their
appoi111111ent as Civil Judges subject to availability of vacancies".
But in the eighteenth meeting of the Administrative Committee held on
I-I
446 SUPREME COURT REPORTS [2016] 4 S.C.R.
A 06.07.2011, the Committee took note of the direction issued by the
Supreme Court to appoint twenty two candidates selected in the years
I 998, 1999, 2000 and 200 I who were not earlier appointed due to Sidhu
scam. At that time only six vacancies were available. To accommodate
those twenty two candidates, Government of Punjab had sanctioned
sixteen temporary posts, with the stipulation thatthe post will be abolished
B
one by one as and when a vacancy becomes available. Relevant minutes
of the eighteenth meeting of the Administrative Committee dated
06.07.2011 reads as under:-
"The writ petitions filed by 22 candidates selected in the years
1998, 1999, 2000 and 2001 were allowed on 27.05.2008 and were
c ordered to be appointed as Civil Judges in Punjab. At that time
only 6 vacancies were available. To give effect to the said judgment
of this Court, 16 temporary posts were sanctioned on 22.07.2008
by the Punjab Government with the stipulation that the posts will
be abolished one by one as and when a vacancy becomes available.
D As per the orders of Hon 'ble Supreme Court in that matter, only
17 candidates were issued appointment letters, 3 resultant
vacancies of the year 2007-2008, stood consumed with the joining
of 17 candidates."
11. It is fairly well-settled that merely because the name of a
candidate finds place in the select list, it would not give him indefeasible
E
right to get an appointment as well. The name of a candidate may appear
in the merit list but he has no indefeasible right to an appointment (vide
Food Corporation of India and Ors. v. Bhanu Lodh and Ors.,(2005)
3 SCC 618; All India SC & ST Employees' Association & Am: v. A.
Arthur Jeen & Ors. (2001) 6 SCC 380 and Union of Public Service
F Commission v. Gaurav Dwivedi and Ors. (1999) 5 SCC 180.
12. This Court again in the case of State ojOrissa & Am: v.
Rajkishore Nanda and Ors. (2010) 6 SCC 777, held as under:
"14. A person whose name appears in the select list does not
acquire any indefeasible right of appointment Empanelme,nt at
G the best is a condition of eligibility for the purpose of appointment
and by itself does not amount to selection or create a vested right
to be appointed. The vacancies have to be filled up as per the
statutory rules and in conformity with the constitutional mandate.
H 16. A select list cannot be treated as a reservoir for the purpose
KULWINDER PAL SINGH AND ANR. v. STATE OF PUNJAB 447
AND ORS. [R. BANUMATHI, J.]
of appointments, that vacancy can be filled up taking the names A
from that list as and when it is so required ... "
13. In Mano} Manu and Am'. v. Union of India & Ors. 2013
(I 0) SCALE 204: (2013) 12 SCC 171, it was held that merely because
the name of a candidate finds place in the select list, it would not give the
candidate an indefeasible right to get an appointment as well. It is always B
open to the government not to fill up the vacancies, however such decision
should not be arbitrary or unreasonable. Once the decision is found to be
based on some valid reason, the court would not issue any mandamus to
government to fill up the vacancies. As noticed earlier, because twenty
two other candidates were declared successful by the Supreme Court
pertaining to the selection of the years 1998, 1999, 2000 and 200 I as c
Civil Judges (Junior Division), they were to be accommodated, as rightly
resolved by the Administrative Committee in the meeting dated
06.07.2011. The three resultant vacancies of the year 2007-2008 stood
consumed with the joining of the said seventeen candidates and the same
could not be filled up from the select list of that year. The decision of the D
Administrative Committee observing that the three resultant vacancies
stood consumed is based on factual situation arising there and cannot be
said to be arbitrary.
14. As noticed earlier, as against twenty seven posts of general
category advertised for the year 2007-2008, thirty one general category E
candidates have joined and are working. In Rakhi Ray And Ors. vs.
High Court of Delhi And Ors. (2010) 2 SCC 637, observing that the
vacancies cannot be filled up over and above the number of vacancies
advertized, recruitment of the candidates in excess of the notified
vacancies would amount to denial of equal opportunity to eligible
candidates, this Court held as under:- F
"12. In view of above, the law can be summarised to the effect
that any appointment made beyond the number of vacancies
advertised is without jurisdiction, being violative of Articles I 4
and 16( I) of the Constitution oflndia, thus, a nullity, inexecutable
and unenforceable in law. In case the vacancies notified stand G
filled up, the process of selection comes to an end. Waiting list,
etc. cannot be used as a reservoir, to fill up the vacancy which
comes into existence after the issuance of notification/
advertisement. The unexhausted select list/ waiting list becomes
meaningless and cannot be pressed in service any more.
H
448 SUPREME COURT REPORTS [2016] 4 S.C.R.
A 13. In the instant case, as 13 vacancies of the general category
had been advertised and filled up, the selection process so far as
the general category candidates is concerned, stood exhausted
and the unexhausted select list is meant only to be consigned to
record room."
B 15. On behalf of the appellants, it was contended that once posts
were de-reserved and appointments were made as against the said de-
reserved posts and the de-reservation was not challenged, High Court
erred in going into the question of de-reservation. As noticed above, out
of52 posts of Punjab Civil Service (Judicial Branch) advertized, 08 posts
of reserved category were not filled up and Public Service Commission
c de-reserved the same. Bifurcation of the said de-reserved posts is as
under:-
I. Ex-servicemen, Punjab - 3 posts
2. Physically Handicapped, Punjab-2 posts
3. Sports Person, Punjab - I post
D 4. Scheduled Caste, Ex-servicemen, Punjab - I post
5. Ex-servicemen, Backward Class - I post
Out of the said eight de-reserved posts, one post was filled up by
a backward class candidate and the remaining seven posts by general
category candidates. As observed by the High Court, so far as two
E posts of physically handicapped, three posts of ex-servicemen and one
post of sports person is concerned, there was no statutory prohibition in
respect of de-reservation. However, in respect of de-reservation of one
post of scheduled caste category, Section 7 of Punjab Scheduled Castes
and Backward Classes (Reservation in Services) Act, 2006 prohibits
de-reservation and stipulates the manner in which such de-reservation
F could be done. Section 7 of the Scheduled Castes and Backward Classes
(Reservation in Services)Act, 2006 as extracted in the impugned judgment
reads as under:-
"7.(1) There shall be no de-reservation of any reserved vacancy
by any appointing authority in any establishment, which is to be
G filled up by direct recruitment or by promotion. In case, a qualified
or eligible Sch.eduled Castes or Backward Classes candidate, as
the case may be, is not available to fill up such vacancy, in that
situation, such vacancy shall remain unfilled.
(2) Notwithstanding anything contained in sub-section( I), if, in
H the public interest, it is deemed necessary to fill up any vacancy
KULWINDER PAL SINGH AND ANR. v. STATE OF PUNJAB 449
AND ORS. [R. BANUMATHI, J.]
referred to in that sub-section, the appointing authority shall refer A
the vacancy to the Department of Welfare of Scheduled Castes
and Backward Classes for de-reservation. Upon such reference,
the Department of Welfare of Scheduled Castes and Backward
Classes may, if it is satisfied that it is necessary or expedient so to
do, by order in writing, de-reserve the vacancy, subject to the
B
condition thatthe vacancy so de-reserved, shall be carried forward
against a subsequent unreserved vacancy."
16. By perusal of Section 7, it appears that as a general rule there
is a bar on de-reservation of the post reserved for scheduled caste
candidates. However, sub-clause (2) provides an exception to this general
rule by laying down that in the public interest the authorities may by c
passing an order in writing de-reserve the seats reserved for candidates
belonging to scheduled castes category. After insertion of clause (4B)
in Article 16 of the Constitution vide Eighty First (Amendment) Act,
2000, de-reservation could 1iot have been done. Under Article 16(4B) of
the Constitution oflndia, unfilled vacancies reserved for scheduled castes D
or scheduled tribes candidates are to be carried forward independent of
ceiling ofreservation of fifty per cent. The seats reserved for scheduled
castes and scheduled tribes categories are to be filled only by specified
category. Therefore, High Court was right in finding fault with the de-
reservation of the seven posts which were filled by candidates belonging
to general category and we do not find any reason warranting E
interference.
17. Learned counsel, for the appellants contended that when the
other cai1didates were appointed in the post against de-reserved category,
the same benefit should also be extended to the appellants. Article I 4 of
the Constitution of India is not to perpetuate illegality and it does not F
envisage negative equalities. In State of UP And Ors. v. Rajkumar
Sharma And Ors. (2006) 3 SCC 330 it was held as under:-
"15. Even if in some cases appointments have been made by
mistake or wrongly that does not confer any right on another
person. Article 14 of the Constitution does not envisage negative G
equality, and ifthe State committed the mistake it cannot be forced
to perpetuate the same mistake. (See Sneh Prabha v. State of
UP (1996) 7 SCC 426; Secy., Jaipur Developnlent Authority
v. Dau/at Mal Jain(l997) 1 SCC 35; State of Haryana v. Ram
Kumar Mann(l997) 3 SCC 321; Faridabad C.T. Scan Centre H
450 SUPREME COURT REPORTS [2016] 4 S.C.R.
A v. D. G, Health Services (1997) 7 SCC 752; Jalandhar
Improvement Trust v. Sampuran SinRh (1999) 3 494; State of
Punjab v. Dr. Rajeev Sarwal (1999) 9 SCC 240; Yogesh Kumar
v. Govt. of NCT, Delhi (2003) 3 SCC 548; Union of India v.
International Trading Co. (2003) 5 SCC 437 and Kastha
Niwarak Grihnirman Sahakari Sanstha Maryadit v. President,
B
Indore Development Authority (2006) 2 SCC 604.)"
Merely because some persons have been granted benefit illegally
or by mistake, it does not confer right upon the appellants to claim equality.
18. Learned counsel for the appellants submitted that the appellants
c have been pursuing the matter for about eight years and even today
there are vacancies in Punjab Judicial Service and thus prayed that
direction be issued to the respondents to consider the case of the
appellants as against the existing vacancies. This contention does not
merit acceptance. Appointment to an additional post or to existing
vacancies would deprive candidates who were not eligible for appointment
D to the post on the date of submission of the applications mentioned in the
advertisement but became eligible for appointment thereaft'er. After
referring to Rakhi Ray, Rqjkishore Nanda and other decisions, High
Court rightly held that the candidates much more than the vacancies
advertised have already been permitted to join and thus the appellants
E cannot claim any legal right in respect of the posts ofreserved category
remaining unfilled. The impugned judgment does not suffer from any
infirmity warranting interference in exercise of our jurisdiction under
A11icle 136 of the Constitution oflndia.
19. The appeals are dismissed. In the facts and circumstances of
F the case, we make no order as to costs.
Kalpana K. Tripathy Appeals dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "appointment"Sign in to search