Punjab-Haryana High Court
Gagandeep Singh Garg And Another vs State Of Punjab And Ors on 2 April, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
CWP No. 17496 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: 2.4.2012
CWP No. 17496 of 2010
Gagandeep Singh Garg and another ......Petitioners
vs.
State of Punjab and ors .....Respondents
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE A.N.JINDAL Present: - Mr. Puneet Gupta, Advocate for the petitioner.
Mr. Sandeep Moudgil, DAG, Punjab for Respondent No 1 Mr. Ashok Bhardwaj, Advocate for respondent No. 2. HEMANT GUPTA, J Petitioners have filed the present petition claiming a writ of certiorari challenging the Advertisement No.1 dated 10.5.2010 (Annexure P-1) and Corrigendum dated 31.8.2010 (Annexure P-2) on the ground that it provides for excessive reservation of Scheduled Castes and Backward Classes, which is in contravention of Article 14 and 16 of the Constitution of India.
An advertisement for recruitment of Punjab Civil Services (Judicial Branch) was published on 10.5.2010 inviting applications to fill 85 posts including 25 for General category; 29 for Scheduled Castes including 12 backlog vacancies and 13 CWP No. 17496 of 2010 -2- for Backward Class including 5 as backlog vacancies. Subsequently, a corrigendum dated 31.8.2010 was issued. Vide the aforesaid corrigendum, the posts advertised were corrected to be read as General category-34 posts, Scheduled Castes and others-26 posts including 12 posts of backlog and Backward Classes-11 posts including 5 backlog posts.
The entire challenge of the petitioners is that there are no unfilled backlog vacancies as earlier advertised vacancies have been filled up in the earlier recruitment years and that the said vacancies advertised violate the cap of 50% of reservation laid down by Hon'ble Supreme Court in Indra Sawhney vs. Union of India (1992) Supp (3) SCC 217. It is contended that in terms of Article 16(4-B) of the Constitution of India, there has to be a time cap on the carry forward rules in view of the judgment of Hon'ble Supreme Court in M. Nagaraj and others vs. Union of India and ors, (2006) 8 SCC 212. The petitioners have also referred to Section 7 of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 (for short the 'Act') to aver that the said Act cannot provide support to the respondents in order to justify the unlimited carry forward time by resorting to the provisions of the Act. In the written statement, it is averred that the State Government is bound to fill up 17 vacancies of backlog and that the provisions of the aforesaid Act are applicable to PCS(Judicial) branch as well. CWP No. 17496 of 2010 -3-
Before we consider the arguments raised by learned counsel for the petitioners, it may be stated that Article 16(4-B) was inserted by the 81st Constitutional Amendment w.e.f 9.6.2000 to remove the infirmities consequent to the judgment of Hon'ble Supreme Court in R.K.Sabharwal v. State of Punjab, (1995) 2 SCC 745. The said provision reads as under: -
(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up determining the ceiling of fifty percent reservation on total number of vacancies of that year.
To give effect to the said Constitutional provisions, the Act have been enacted which is applicable to all establishments of the State Government as defined in Section 2
(c) of the Act. Section 6 deals with question of backlog of vacancies whereas Section 7 of the Act deals with the de-
reservation of the reserved vacancies. The said provisions read as under: -
CWP No. 17496 of 2010 -4-
6. To implement backlog of vacancies: - (1) The backlog or carry forward reserved vacancies for Scheduled Castes shall be treated as a separate class of vacancies and the ceiling of fifty percent on filling up these reserved vacancies in succeeding year or years, shall not apply to such class of vacancies.
(2) The vacancies, referred to in sub-section (1) shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.
(3) The backlog or carried forward reserved vacancies for Scheduled Castes shall be calculated keeping in view the total number of vacancies filled up in each cadre or service.
7. De-reservation of reserved vacancy: - (1) There shall be no de-reservation of any reserved vacancy by any appointing authority in any establishment, which is to be filled up by direct recruitment or by promotion. In case, a qualified or eligible Scheduled 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 (1), if in the public interest, it is deemed necessary to fill up any vacancy referred to in that sub-section, the appointing authority shall refer 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 condition that the vacancy so -de-reserved shall be CWP No. 17496 of 2010 -5- carried forward against a subsequent unreserved vacancy.
Learned counsel for the petitioners refers to M. Nagaraj's case (supra), to contend that the appropriate government have to introduce a time cap depending upon the factual situation. Therefore, the unlimited time in the State Legislation runs counter to the aforesaid judgment. The reliance is placed on the following para 100:
100. As stated above, Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling liit of 50% on current vacancies continues to remain. In working out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore, if the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration.
Therefore, in each case, the appropriate government will now have to introduce the time-cap depending upon the fact situation. What is stated hereinabove is borne out by the service rules in some of the States where the carry-over rule does not extend beyond three years.
CWP No. 17496 of 2010 -6-We do not find any merit in the argument raised by learned counsel for the petitioners. In M. Nagaraj's case (supra), the broad issues that arose for determination related to the (1) Validity, (2) Interpretation and (3) Implementation of (i) the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000, the Constitution (Eighty-second Amendment) Act, 2000, and the Constitution (Eighty-fifth Amendment) Act, 2001. The Court did not examine the validity of individual enactments of the States and that question was left for decision in individual writ petition by the appropriate Bench in accordance with law laid down in the aforesaid case. It was held that Articles 16(4-A) and 16(4-B) are the classifications within the principle of equality under Article 16(4) of the Act and such are the enabling provisions. It was held to the following effect: -
107. ....Therefore, there is a basic difference between "equality in law" and "equality in fact" (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-
B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Article 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4) namely backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16 (4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in which is to be decided on the facts of each CWP No. 17496 of 2010 -7- case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of "guided power". We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.
xxx xxx
116. ...Article 16(4-B) is also an enabling provision. It seeks to make classification on the basis of the differentia between current vacancies and carry- forward vacancies. In the case of Article 16(4-B) we must keep in mind that following the judgment in R.K.Sabharwal's case (supra),the concept of post- based roster is introduced. Consequently, specific slots for OBC's, SCs and STs as well as GC have to be maintained in the roster. For want of a candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category. Therefore, by Article 16(4-B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand. Article 16(4-B) is a direct consequence of the judgment of this Court in R.K.Sabharwal's case (supra), by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4- A) and 16(4-B) together form part of the same scheme. As stated above, Articles 16(4-A) and 16(4-B) are both inspired by observations of the Supreme Court in Indra Sawhney's case (supra), and R.K.Sabharwal's case (supra). Therefore, we uphold the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional amendments, therefore, do not obliterate equality.
CWP No. 17496 of 2010 -8-
xxx xxx
121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the State to provide for reservation keeping in mind the overall efficiency of the State administration under Article
335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on the one hand and SCs and STs on the other hand as held in Indra Sawhney's case (supra), the concept of post-based roster with in built concept of replacement as held in R.K.Sabharwal's case (supra).
122. We reiterate that the ceiling limit of 50% the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse."
In respect of the validity of the State Acts, the Court observed as under: -
110. As stated above, the boundaries of the width of the power, namely the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we CWP No. 17496 of 2010 -9- have to consider the law as enacted by various States providing for reservation if challenged. At that time, we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.
In the present case there is no challenge to the extent of reservations or that there is no backwardness or inadequacy of representation of the Scheduled Castes and Backward Classes in the services. Therefore, in the absence of any challenge, Section 6 and 7 of the Act cannot be said to be in any way violative of Article 16(4-B) of the Constitution.
Section 3(2) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, as amended in the year 2002, provided that if in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered CWP No. 17496 of 2010 -10- together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub- section (1). The Hon'ble Supreme Court in State of Uttar Pradesh vs. Sangam Nath Pandey, (2011) 2 SCC 105 examined the said provisions and found the process of reservation irregular though the Act was not found to be invalid. The provisions of the aforesaid Act are pari-materia to the provisions of the Act. It was held to the following effect: -
28. The terminology of the aforesaid section is clear and unambiguous. Therefore, construed in its ordinary, literal sense, the sub-section provides that the carried-forward vacancies are not to be included in calculating the 50% cap as contained in proviso 2 to Section 3(1). The special recruitment may be held in that very year or in the succeeding year or years of recruitment as a separate class of vacancy.
33. A harmonious construction of Sections 2(d), 3(2) and 3(5) would lead to the conclusion, as stated by the Division Bench, that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject-matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy.CWP No. 17496 of 2010 -11-
In view of the above, when the constitutional validity of the 81st Amendment to the Constitution has been held to be valid and that there is challenge to the provisions of the State Act and that the backlog vacancies have remained unfilled, even though advertised earlier, we do not find any merit in the present petition.
Dismissed.
(HEMANT GUPTA) JUDGE (A.N.JINDAL) JUDGE 2.4.2012 preeti