Punjab-Haryana High Court
Ajy Pall Singh And Ors vs State Of Punjab And Ors on 11 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.19240 of 2012 & 11334 of 2013
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
I.
Civil Writ Petition No.19240 of 2012
Date of decision: 11.12.2014
Ajay Pal Singh and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
II.
Civil Writ Petition No.11334 of 2013
Bikramjit Singh
..... Petitioner
Versus
State of Punjab and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.D.V.Sharma, Sr.Advocate with
Ms.Shivani Sharma, Advocate
for the petitioners.
Mr.Rajiv Prashad, Addl. AG, Punjab.
*****
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
This order will dispose of two petitions, namely, CWP No.19240 of 2012 and CWP No.11334 of 2013 as both involve the same issue. The facts are taken from CWP No.19240 of 2012. Both the matters were ordered to be heard with each other and can be conveniently disposed PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 :2: of by a common judgment.
2. The question of law raised by the petitioner is as to whether a test can be prescribed for judging the suitability of scheduled caste candidates along with the general category candidates who possess the minimum prescribed educational qualification or whether scheduled caste candidates are to be tested on their ability which have been issued by the Punjab Government. In other words, the issue raised is that the scheduled caste candidates when are tested along with general category candidates, then they should be tested and appointed by lowering their merit against the posts which were meant for reserved category, otherwise it would make the reservation meaningless. This argument is based on the assumption that as a matter of long practice of lowering the threshold marks for scheduled caste candidates vis-a-vis the open general category candidates for selection and appointment on public posts.
3. The facts briefly are that the Punjab Government in the Department of Food and Civil Supplies, Punjab advertised 1289 posts of Inspectors Grade-II (Group-C). Punjab Scheduled Castes & Backward Classes (Reservation in Services) Act, 2006 prescribes 25% posts in direct recruitment for the reserved category of scheduled castes. Of these posts, 5% of the vacancies in the quota of scheduled castes has to be offered to Balmikis and Mazhabi Sikhs, if available, as a first preference from amongst the scheduled castes. It is stated that the issue of the validity of sub- reservation is under consideration before the Supreme Court arising from a matter decided in this Court in Gurmail Singh v. State of Punjab and others. The Division Bench of this Court struck down sub reservation following the law laid down by the Supreme Court in E.V.Chinnaiah v. State of Andhra Pradesh; AIR 2005 SC 162 where the preference given to Balmikis and PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 :3: Mazhabi Sikhs has been held to be unconstitutional while some other petitions on the point are pending in this Court including CWP No.16221 of 2006 titled Hardip Singh, Advocate and others v. State of Punjab and others. It is asserted that no clarification has been made in the Punjab Act as was the case in Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 where the scheduled castes were divided into 4 groups by quota in the prescribed percentages. The petitioner is a member of the scheduled caste category. Of the 1289 posts, 322 posts were reserved for the candidates in this Balmikis/Mazhabi Sikhs category. Out of 322 posts, 161 posts were meant for scheduled castes (Balmikis/Mazhabi Sikhs). It is asserted that since Section 4(5) of the Punjab Act has been declared ultra-vires the Constitution, all the 322 posts are to be filled in from the scheduled caste candidates irrespective of their classification. The selection was based on a written examination alone. There were to be no interviews in the selection process. The merit list was prepared on the basis of the written examination. Petitioner No.1 secured 28.08% marks in the examination while his co- petitioners have secured 20.72, 32.71 and 28.60 marks respectively as witnessed in the download from the official website of the department. As per the advertisement, minimum prescribed percentage is fixed at 35% flat for all categories of candidates including scheduled caste candidates. The petitioners have not been selected or appointed as they failed to secure 35% marks. It is pleaded that only 119 candidates could pass the written examination from the scheduled caste category. Out of these 119 candidates, 18 persons belonging to Balmikis/Mazhabi Sikhs have been able to clear the written test. In this manner, 203 posts are lying vacant as were ear-marked for the members of the scheduled caste category. In case, 50% reservation is to be taken into account for Balmikis/Mazhabis Sikhs, to which category, the PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 :4: petitioners belong, then 143 posts in their quota are lying vacant, which is a startling figure. This is notwithstanding the argument that sub-reservation is unconstitutional and, therefore, the petitioners claim consideration against the total number of posts in their category. The list of successful candidates belonging to SC (Balmikis and Mazhabis) are 18 in number and out of these, one Manpreet Singh Matto has been appointed in the general category and has to be treated as such and outside the advertised quota.
4. Mr.D.V.Sharma relies on a Punjab Government circular dated 14th May, 1969 to promote his case. It would be best to reproduce those instructions for a better understanding of the case. They read : -
"1. I am directed to address you on the above mentioned subject and to say that sometimes written examination is held for candidates of Scheduled Castes and Backward Classes at the time of recruitment in addition to the minimum prescribed qualifications, as a result, the qualifications of the Scheduled Caste and Backward Classes candidates against reserved posts become higher and the candidates belonging to Scheduled Castes and Backward Classes who possess minimum prescribed qualifications for the post/posts are not appointed.
2. The Government, after considering this matter, has decided that Scheduled Castes/Backward Classes candidates who possess minimum prescribed qualifications should not be put to any such test that may deprive them of the posts reserved for them. In case appointing authority/recruiting institution consider it necessary can hold some other test among the Scheduled Castes candidates in order to test the level of their ability. But the posts reserved for them should be given to them according to their qualification. The meaning of these instructions is that the reserved posts be offered to Scheduled Castes/Backward classes candidates who fulfill the minimum prescribed qualifications so that they can get their due right in the State Service."PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document
CWP No.19240 of 2012 & 11334 of 2013 :5:
5. These instructions come in aid of scheduled caste candidates where the selection is based on written examination and in addition thereto, to the minimum prescribed qualifications. Even in cases where the scheduled caste candidates have higher qualifications but do not make the grade in the written examination are not appointed. In order to meet this exigency, Government decided that SC/BC candidates who possess minimum prescribed qualifications should not be put to any such test that may deprive them of the posts reserved for them. In case, the appointing/recruiting institution consider it necessary, it can hold some other tests among the scheduled caste candidates in order to test the level of their ability. The posts reserved for them should be given to them according to their qualifications. The meaning of these instructions are that the scheduled caste candidates should be given posts reserved for them who fulfil the minimum qualifications so that they can get their due right in State service.
6. In the four decades that have passed the prescription of the instructions, much water has flown under the bridge where the law has been shaped and re-shaped to meet the current felt necessities of the time in the matter of recruitment of scheduled caste candidates as well as general category candidates and to balance their interests. To support appointment today based merely on minimum prescribed qualifications by doing away with written examination even where it is prescribed, would be contrary to rule of law in absence of a policy decision in writing issued under article 16 (4) of the Constitution of India. I am inclined to think that the vintage instructions of 1969 would not hold the ground presently as the times have changed and so has the law on the subject. Standards to education and access to it is higher and far more substantial today which was not within the reach of scheduled caste categories before 1969. In the written reply filed by the PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 :6: State, nothing is said of these instructions or of their current operation. However, the other instructions relied upon by the petitioners dated 5th May, 1970 have been commented upon and it is stated that educational qualifications are not the sole criteria and only such candidates irrespective of their category or caste have to qualify the written examination with minimum 35% marks as prescribed in the advertisement. Only thereafter, a candidate can be considered eligible for selection to the post of Inspector Grade-II. The petitioners having failed to make the pass percentage and thus they have been declared ineligible for selection. The State defends on the settled law that once the selection procedure commences it cannot be changed or altered subsequently in the middle or after the completion of the process of selection. Reliance on this principle is placed at Maharashtra State Road Transport Corporation and others v. Rajindra Bhim Ram Mandve & others; 2002 (I) RSJ 208, Pitta Naveen Kumar & others v. Raja Narasiash Zangiti & others; 2006 (4) RSJ 785 and Madan Mohan Sharma and another v. State of Rajasthan & others 2008 (2) SLR 207.
7. In this case, the process of selection and issuance of appointment letters stands completed and the selection has become a dead ball. They have supported Government order passed on 9th August, 2012 in CWP No.14652 of 2010 where it was decided that the recruitment process stands completed and no benefit could be given to the petitioners by way of offering them appointments relating to the same selection. The moot note in the advertisement on which this case turns reads as follows : -
"Note : Minimum qualifying marks for candidates of all categories will be 35% (Thirty-Five Percent) of the total marks. In case some qualifying candidates obtain equal marks then for selection, preference will be given to a candidate with higher score in the Graduation degree."PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document
CWP No.19240 of 2012 & 11334 of 2013 :7:
8. The State in its wisdom has placed an embargo of minimum 35% of the total marks to be the governing principle of selection irrespective of the general category and the reserved category. When field is not occupied, direct instructions on the point of reservation under article 16(4) becomes an enabling provisions but not a mandatory one as explained as early as in Indira Sawhney v. Union of India; 1992 Supp. (3) SCC 217 where a large number of principles have been laid down and inter alia that executive instructions on reservation have to be read into the rules. The question then depends on existence of clear and unambiguous policy decisions of the State Government expressed through the power conferred in article 162 read with article 16(4) and article 46 of the Constitution of India. If the Government has not thought it fit in lowering the entry grade in the selection process of Inspectors Grade-II in the Department of Food and Civil Supplies, Punjab, none can be compelled upon it by a fiat of the writ Court to act de hors the advertised terms and conditions of the advertisement and the petitioners cannot legitimately make a grievance of it. If the posts have remained unfilled in the category of scheduled castes and the recruitment process as admittedly come to a close, then the principles laid down in Shankarsan Dash v. Union of India; 1991 (3) SCC 47 become applicable. In this constitution bench decision, the Supreme Court examined its earlier decisions in State of Haryana and others v. Subhash Chander Marwaha, 1974 SCR 165, Neelima Shangia v. State of Haryana and others, 1986 (4) SCC 268 and Jitendra Kumar v. State of Punjab and others; 1985 (1) SCR 899. The law was reconciled harmoniously and the Supreme Court held that where vacancies are notified and the selection of candidates was made on the basis of a competitive examination and the process of selection and PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 :8: appointment is completed, then merely because some candidates have not joined and vacancies have remained unfilled, then a candidate whose name appeared in the merit list acquired no indefeasible right of appointment if a vacancy arose by non-joining of some candidate. Such posts which remain unfilled have to be advertised in the fresh recruitment process where the selection is thrown open once again but two all eligible candidates acquiring qualifying and eligibility status meanwhile are to be considered whether in the general category or in the reserved category. The Supreme Court observed that ordinarily, the notification amounts to an invitation to qualified candidates to apply for recruitment and on their selection; they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons and if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test and no discrimination can be permitted. The question referred to the constitutional bench was answered and it was observed that there is no discordant note found in the decisions in Subhash Chander Marwaha, Miss Neelima Shangla and Jitendra Kumar cases
9. The judgments in Ajit Singh Janjua I , Ajit Singh Janjua-II; AIR 1996 SC 1189 : 1996 (2) SCC 715 : JT 1999 (7) SC 153 respectively and the cases in Rajesh Kumar Gupta and others v. State of U.P. and others; 2005 (5) SCC 172, State of Punjab and others v. Manjit Singh and others; 2003 (11) SCC 559 are of no help to the petitioners to succeed on an argument that the scheduled caste category candidates have to be selected on PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 :9: marks lower than the minimum prescribed marks of 35% which is uniform to all candidates to qualify for selection.
10. In Manjit Singh's case, the Supreme Court has occasion to deal with a situation arising out of exclusion of candidates at the stage of short- listing itself and on the basis of minimum qualifying marks which amounts to depriving the eligible SC candidates from participating in the selection but the present is not a case of short-listing where rights of the scheduled caste candidates have suffered deprivation and prejudice.
11. Mr. Sharma has relied on paragraphs 8, 9 and 10 of the judgment to submit that the scheduled caste candidates have to be tested in relaxation of marks. The paragraphs are reproduced : -
"8. But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down upto 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut-off marks is fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100 in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting, as observed above, any number of candidates required in certain proposition of the number of vacancies, they may be shortlisted in order of merit from serial No.1 upto the number of candidates required.
9. In the present case, the stand of the appellant Commission is that for medical services where the members of service have to deal with the health and life of the people, they must have some minimum standard of efficiency and it is the bounden duty of the Commission to PARITOSH KUMAR ensure the same. It is perhaps with this view in mind that 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 : 10 : the Commission fixed 45% minimum qualifying cut off marks for general category candidates and 40% cut-off marks for Scheduled Caste candidates. We feel, here lies the fallacy in the whole reasoning of the Commission. It is no doubt true that the Commission is an independent and autonomous body and has to work without influence of any authority or the Government. It is rather under duty to act independently. But at the same time the fact cannot be lost sight of that the State Government is competent to lay down the qualifications for different posts, and frame rules for the purpose or take policy decisions which may of course not be against the law. In this context, we may refer to the provisions contained under article 320 of the Constitution.
10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list upto the number of the candidates required in order to merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cut-off marks say for example out of Rs.10,000 if 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so any candidate who is otherwise eligible upto 500th position whatever be the percentage about or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks."
12. The position which emerges from shortlisting and lowering the marks for reserved category is to treat them as a separate class to bring them to the stage of the main selection and in this manner, the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks but these principles are not extended to the main selection or written PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 : 11 : examination from which will come the pantheon of the successful. The results of the main examination and the marks secured therein will be broken in as many as parts as there is reservation, both horizontal and vertical where candidates from the reserved category would be treated separately and not equally with the general category candidates. I do not see what help Mr.Sharma can derive from the ruling and similarly from the division Bench judgment of this Court in Dr.Lovekesh Kumar and others v. State of Punjab and others; 1998 (1) RSJ 566 on which he made a special mention that he had argued the case on behalf of the petitioners.
13. In any case, Government have explained the Punjab Government letter dated 14th May, 1969 in the subsequent instructions dated 5th May, 1969 which is as follows : -
"In this connection, it is also clarified that the directions issued vide Punjab Government letter No.3925-6- S.W.69/9778 dated 14.5.1969 are applicable on the recruitments made through interview or other sources except the recruitments made through the competitive examinations. For the posts which are to be filled in through the competitive examinations, the candidates belonging to the Scheduled Castes and Backward Classes who will acquire the minimum prescribed standard of merit will be considered against the reserved posts and the competition of their suitability will be held amongst themselves.
So far as the question of filling up the vacancies by way of interview or some other source is concerned, the directions mentioned in the aforesaid letter of the Punjab Government are quite clear, meaning thereby that the candidates belonging to Scheduled Castes/Backward Classes possessing minimum qualification or experience should not be put to any test to check their suitability for appointments against reserved post. However, the Scheduled Caste candidates can be put to test among themselves to ascertain the merit."PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document
CWP No.19240 of 2012 & 11334 of 2013 : 12 :
14. It has been explained that the Government letter dated 14th May, 1969 is applicable on recruitment made through interview or other sources except the recruitment made through competitive examination. For the posts which are to be filled in through the exclusive competitive examination process, the candidates belonging to the scheduled caste and backward class categories who will secure the minimum prescribed standard of merit will be considered against the reserved posts and the competition of their suitability will be held amongst themselves. This is the subtle difference that stands culled out of the 1969 instructions by the policy maker which were once good but have fallen into disuse or desuetude. The State remain well within its rights to determine the suitability of candidates in a selection process and once it has set the rules of the game, the same has to be adhered to it, otherwise, it would be snubbed for having acted arbitrarily and in a discriminatory manner. It also remains within its jurisdiction to test the suitability for appointments to public service to build efficiency in administration. I find nothing unconstitutional, irrational, unfair or arbitrary in State action in adhering to the cut off percentage of marks for eligibility to successfully run its administration or that the prescription tends to treat unequals unequally. The State can be seen only guarding and watching its impersonal interests not aimed at a class or classes of persons. Besides, if the petitioners were aggrieved by the prescription of 35% marks they should have laid the challenge in a court of law before entering the examination hall. If they failed in their attempt they cannot be allowed to usurp unfilled vacancies for no valid rhyme or reason.
15. For the foregoing reasons, I find no ground warranting interference in the matter. The petitioners have not demonstrated a PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.19240 of 2012 & 11334 of 2013 : 13 : fundamental right to appointment and their claim cannot be decreed by the writ Court. Accordingly, both the petitions stands dismissed without costs.
(RAJIV NARAIN RAINA) JUDGE December 11, 2014 Paritosh Kumar PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document