Punjab-Haryana High Court
Ravinder Singh And Ors. vs State Of Punjab And Ors. on 16 January, 1992
Equivalent citations: (1992)101PLR313
JUDGMENT V.K. Bali, J.
1. This judgment would dispose of Civil Writ Petition Nos. 10314, 12140 and 12483 of 1991 as identical questions of fact and law are involved in all the petitions.
2. The prayer of the petitioners who are all law graduates and belong to weaker sections of Society is for issuance of an appropriate writ especially in the nature of mandamus directing the respondents, the State of Punjab and the Punjab Public Service Commission to hold viva voce test for their ultimate selection and absorption as Subordinate Judges in the State of Punjab under reserved quota earmarked for them in the advertisement dated September 8, 1990 pursuant to which written test was held from 1-4-19.91 to 4-4-1991. The aforesaid prayer stems from the following facts :-
3. All the petitioners are law graduates having obtained the degree from one or the other Universities established under the Statute and affiliated with the University Grant Commission which degree admittedly enables them to compete for the posts of Subordinate Judges in the P. C. S. (Judicial Branch). All the petitioners belong to Scheduled Castes and Scheduled Tribes segments of the community. In the wake of its policy to ameliorate the lot of this section of the Society, the Government had been issuing instructions from time to time so as to earmark the quota of vacancies which has necessarily to go to them. In so far as reservation of Scheduled Castes and Scheduled Tribes in the P. C. S. (Judicial Branch) is concerned, the policy of the Government was always taken to its logical ends by giving it recognition in all the advertisements that were issued by the Punjab Public Service Commission with a view to fill up the vacancies that might be available from time to time. Vide advertisement dated September 8, 1990, the Punjab Public Service Commission invited applications for the recruitment of 52 posts in the Punjab Civil Service (Judicial Branch). The contents thereof manifest that 14 posts were reserved for Scheduled Castes, 3 for Backward Classes, 8 for Ex-servicemen and one for children/grand children of freedom fighters of Punjab. The rest of the posts were obviously meant for the general category candidates. The petitioners who were eligible to appear in the competitive examination that was held in consequence of advertisement, reference of which has been given above, did apply for and appeared against their respective roll numbers and in the written test that was held, they secured 45% or more marks but they were not called for interview. However, in obedience to the directions issued by this Court in Civil Writ Petition No. 9071 of 1991 titled "Sanjay Khanna and Ors. v. State of Punjab and Ors. , C. W. P. No. 9071 of 1991". they were interviewed by the Punjab Public Service Commission as they had obtained 45% or more marks in the written test. The result declared by the Punjab Public Service Commission. further demonstrates that all the petitioners obtained more than 45 marks in the written examination. It is in the wake of aforesaid facts and circumstances that the prayer of the petitioners is to appoint them on the posts of Subordinate Judges in P. C. S. (Judicial Branch). Before the matter is discussed any further, the stage is ripe to look into the Rules of 1951 particularly with regard to eligibility of candidates in particular belonging to Scheduled Castes or Scheduled Tribes as were obtainable immediately prior to the advertisement inviting applications as also the written examination and the amendments that came into being during the currency of selection process. Rules 7 and 8 of the Rules of 1951 which have a direct bearing upon the controversy involved in this litigation as were amended by notification dated April 10, 1989 i. e. immediately before the advertisement and written examination run as under :-
"7. No candidates shall be credited with any marks in any paper unless he obtains atleast 3.3% marks in it and no candidates shall be called for the viva voce test unless he obtains atleast forty five percent marks in the aggregate of all the written paper which he has passed and thirty three percent marks in the language paper of Punjabi (in Gurmukhi Script)".
4 It is underlined portion which came to be added by virtue of amendment vide notification dated April 10, 1989.
"8. No candidate shall be considered to have qualified in the examination unless he obtains atleast fifty-five percent marks in the aggregate of all the papers including viva voce test and atleast thirty three percent marks in the language paper of Punjabi (Gurmukhi Script). The standard of the language paper will be that of Matriculation Examination of the Punjab School Education Board or equivalent to it".
5. Rule 8 as re-produced above was substituted vide the very notification i. e. dated April 10, 1989.
6. The aforesaid Rules were substituted vide notification dated June 4, 1991 which read as under :-
"7(1) No candidate shall be credited with any marks in any paper unless he obtains atleast thirty three percent marks in it".
(2) No candidate shall be called for the viva-voce test unless he obtains atleast fifty percent qualifying marks marks in the aggregate of all the written papers".
Provided that the candidates belonging to Scheduled Castes, Scheduled Tribes and Backward Classes categories shall be called for , the viva-voce test if they obtained forty-five percent qualifying marks in the aggregate of all the written papers.
"(3). The minimum qualifying marks in the language paper Punjabi (Gurmukhi Script) shall be thirty three percent. The standard of language paper will be that of Matriculation Examination of the Punjab School Education Board or its equivalent".
"8. The merit of the qualified candidates shall be determined by the Punjab Public Service Commission according to the aggregate marks obtained in the written papers and viva-voce".
Provided that in the case of two or more candidates obtaining equal marks, the candidate older in age shall be placed higher in the order of merit".
7. A reading of the Rules before and after the issuance of advertisement inviting applications would, thus, reveal a significant change in the Rules brought about during the selection process. It is significant to observe that the aforesaid amendment was necessitated on account of the fact that there was anomaly in the Rules of 1951. Unamended Rule 8, inter alia, provides that the candidate has to obtain fifty-five percent marks in the aggregate of all the papers including viva voce test to become eligible for appointment to the service. A candidate was eligible for viva voce test if he had obtained forty-five percent marks in the written test i. e. 405 out of 900. The total marks allocated for the written test are 900 and the total marks allocated for viva voce are 100, thus, making a total of 1000 marks. Even if a candidate was given 100% marks i. e. 100 out of 100 marks in the viva voce test but if he had obtained only 45% marks in the written test, he could not be selected and appointed although he was eligible for interview in as much as he would certainly fall short of 55% of the total marks. Calling such candidates was, thus, an exercise in futility. This anomaly was noticed by a Judge of this Court who was nominated by the Chief Justice as an expert under the Rules at the time of viva voce test with regard to another examination held earlier. The High Court being convinced of the anomaly as was noticed by the Judge of this Court recommended to the Government that Rules of 1991 should be suitably amended so as to provide that a candidate who has obtained 50% marks instead of 55% marks in the aggregate of all the papers including viva voce test should be eligible for appointment in the service. The recommendation in the matter aforesaid was conveyed to the Government vide letter dated November 20, 1990.
8. The matter with regard to recruitment to P.C.S. (Judicial Branch) examination came to be considered by the department of Home Affairs and Justice on January 22, 1991. Although 33 posts were to be filled only 19 candidates, 17 belonging to general category and 2 candidates belonging to Scheduled Caste category were invited for appointment. While discussing the matter with regard to recommendation of more general category candidates by de-reserving the posts, the Department of Home Affairs and Justice submitted a a memorandum for the Governor-in-Counsel where it was observed that the requisite number of all categories except general category could not be successful in the examination and, therefore, the Commission had not been able to make complete recommendations of all categories. The reason why recommendations against reserved quota of Scheduled Castes/Scheduled Tribes was not made, was stated to be inability of candidates belonging to such categories to achieve the eligibility criteria. With a view that backlog of vacancies reserved for Scheduled Castes and Backward Classes could be filled, amendment in the Rules for conducting the examination was suggested. It was specifically mentioned in the aforesaid memorandum that the existing Rules were not conducive to normal in take of Scheduled Castes and Backward Classes. What to say of clearing the back-log, likelihood of more posts going begging was in the offing. The course for de-reservation was opined to be disadvantageous to Scheduled Castes and Backward Classes. After discussing the matter in great details, the memorandum goes on to record as follows :-
"In order to fill up the reserved vacancies, the Administrative Department has also decided to relax 5% marks in the minimum pass percentage marks in respect of Scheduled Castes and Backward Classes in the P.C.S. (Judicial Branch) Examination and the matter regarding amendment of P.C.S (Judicial Branch) Rules, 1951, accordingly is under process. This amendment in the Service Rules is being finalised shortly and will be made applicable to the next coming examination to be held in February, 1991. The Administrative Department has taken up this so as to enable the maximum reserved category candidates to qualify the P.C.S. (Judicial Branch) Examination against their quotas."
9. After decision in the manner indicated above was taken, the requisite notification amending Rules 7 and 8 then came into being on June 4, 1991 by which date written examination in consequence of advertisement for filling up the posts had since already taken place. The written examination was held from 1-4-1991 to 4-4-1991. Even though the amendment of the Rules had come into being on June 4, 1991, the petitioners were not called for interview and in fact only those who secured more than 50 marks in the written examination were so called. As referred to above, the petitioners and others were interviewed in consequence of the directions given in the Writ Petition, reference of which has been given above.
10. The cause of the petitioners is sought to be fortified on the ground that the Punjab Public Service Commission is not competent authority to interpret the Rules of 1951 and in accordance with the amended Rules, all the candidates belonging to Scheduled Castes who had secured 45% marks were entitled to be called for interview. The Commission could not arrogate to itself the authority which does not belong to it. It is also the case of the petitioners that' the amendment in question had not taken away the vested right of anyone and, therefore, the same has necessarily to be interpreted as retrospective in operation. It is also contended that in any case, the amendment would be retrospective by implication and necessary intendment as viewed in the background under which the same came into being. It is also stated that it is only the anomaly that was done away with by virtue of the amendment in the Rules and on that count as well, the same would have a retrospective operation. It is further stated that it is only the procedural part which was subject matter of amendment and that being so, the amendment in procedure would always be retrospective. It is also contended that even if the amendment is to be given prospective operation, the appointments having not been made when the amendment came into being, the said process could be done and completed only under the law in existence when the appointments were to be made.
11. The State of Punjab despite service has not chosen to file any reply. The only reply available on the record is the one filed by the Punjab Public Service Commission. By way of preliminary objection, it is averred that the petitioners had not secured the requisite merit to be called for interview and their petition was a typical manifestation of prevailing syndrome whereby candidates who fail to come up to the required standard of merit, try to obstruct selection. It is also pleaded that in compliance with the directions issued by this Court in Civil Writ Petition No. 9071 of 1991, other candidates in addition to 84 candidates have already been interviewed by the Commission. 73 candidates who secured marks in the written papers between 45% to 50% were called for interview from 17th to 18th and from 24th to 26th July, 1991 but such candidates who had not secured in aggregate 550 marks out of 1,000 could not be appointed as per provisions contained in Rule 8(i) of P.C.S. (Judicial Branch) (Ist Amendment) Rules 1989. The fact that the petitioners have secured 45% or more marks has been admitted and it has also been admired that even if those who have secured 45% marks were to get 100% marks in viva voce, they could not come in the zone of selection. On the question of operation of amended Rules 7 and 8, the plea of the Commission is that inasmuch as at the time of publication of advertisement and holding the examination, the Rules of 1989 were applicable, it is the eligibility provided under the said Rules alone which would govern the field. In short, the plea of respondent-Commission repeated a number of times is that it is only the Rules existing in 1989 that would be relevant and the amendment that came into being in 1991 would apply only to the examination that may be held next. It is significant to mention that the background under which the amendments were brought about in the year 1991 has not been denied.
12. After hearing the learned counsel for the parties at length, we are of the considered view that the cause of the petitioners is meritorious and, therefore, the present petitions must succeed. Our Constitution requires steps to be taken to see where unequals are competing, conditions are created by relaxation or otherwise so that they can compete in terms of equality with others in respect of jobs and employments in the State. Sufficient indication of what we have stated above is available from Article 38 contained in part IV dealing with the directive principles of the State policy as also the mandate spelled out from Articles 14, 15 and 16 dealing with fundamental rights contained in part III.
13. Article 335 of the Constitution of India provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Article 46 provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. Article 16 embodies fundamental rights of all citizens to equality of opportunity in the matters relating to employment and appointment to any office in the State. Such equality, however, is departed in the case of Scheduled Castes/Tribes as spelled out from clause 4 of the said Article which is as follows :-
"16(4). Nothing in this article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
14. There is no denying the fact that Scheduled Castes and Scheduled Tribes for reasons historical or otherwise are unequal with the general members of the community in respect of ability and qualification for public employment. It is by keeping this background in view, that the merit of this class to compete on conditions of equality, certain relaxations and other factors ensuring equality are imperative and it is for this reason that the framers of the Constitution thought it equitable, just and proper to provide exception in the equality class so enshrined in Article 16 of the Constitution of India. Indeed, to provide relaxation of minimum marks in the case of Scheduled Castes and Scheduled Tribe candidates as compared to the general category candidates, in the amendment brought about in 1991 was with a view to accommodate the candidates of such category even though they were not to be equal in calibre to the general class candidates. The need for such a change was even noticed by the Apex Court after thoroughly going into the matter with regard to prevailing eligibility criteria in the neighbouring State of Haryana. The opinion of the Supreme Court was brought to the notice of the Government by issuing a' mandate to consider the question as to what should be the minimum percentage of marks which may protect efficiency in service as also the interests of unequals while competing with general category candidates. It is pertinent to mention here that in the State of Haryana as well, the eligibility criteria for Scheduled Castes/Scheduled Tribe candidate is to obtain 55% marks in aggregate to secure appointment to the posts of Subordinate Judges. In dealing with the cause of Scheduled Caste/Scheduled Tribe candidates who prayed for issuance of a mandate to lower the qualifying marks in Writ Petition No. 1147 of 1988 decided on April 4, 1990 this is how the Supreme Court determined the matter :-
"In that view of the matter, in our opinion, in the interest of justice and our constitutional mandates and in the light of the efficiency of the services and with a view to create a sense of justice, it is necessary for the Government concerned to consider this question as to what should be the minimum percentage of marks necessary for the administration. We direct that the Government will make a conscious decision objectively before the next selections for the post in Haryana Judicial Service take place and determine a minimum percentage of marks consistent with efficiency and the need for ensuring equality of opportunity to Scheduled Castes and Scheduled Tribes".
15. Thus, while considering the retrospectivity or otherwise of amendments brought about in Rules 7 and 8 in 1991 indeed, the constitutional provisions noticed above and the background under which the same came into being shall have to be kept in mind While dealing with the memorandum containing concessions for Scheduled Castes/ Scheduled Tribe candidates, the Supreme Court in The Comptroller & Auditor General of India, Gian Prakash, New Delhi and Anr. v. K. S. Jagannathan and Anr., (1986) 2 S. L. J. 1, had observed as follows : -
"The treatment meted out to the members of the Schedule Castes throughout the ages was an affront to Human Rights. It was in a spirit of atornment for the wrong done to them and to make restitution for the injury and injustice inflicted upon them that the framers of the Constitution enacted Article 16(4) placing them in a separate class in matters relating to employment or appointment to any office under the State, formulated the Directive Principle embodied in Article 46, and proclaimed the great Constitutional mandate set out in Article 335.
33. It is equally not possible to equate the members of the Scheduled Tribes with goods imported from abroad. They too are human beings like other human being with this difference that for centuries they have preferred to follow the primitive ways of their forefathers. Remote and almost inaccessible in their hilly fastness and secluded forests, civilization has passed them by. The benefits of high sophisticated technology is an unknown to them as its hazards of noxious fumes and poisonous gasses. Simple and naive, they have become a rich mine for exploitation by the human products of civilization. Their lands have been stolen from them by skulduggery and they have been tricked into selling the products of their craft and skill for a song. It was to protect them from such exploitation and to enable them to participate in the mainstream of the nation's life that they have been given special treatment by Articles 16(4), 46 and 335 of the Constitution.
34. The interpretation to be placed upon the said Office Memorandum dated January ,21, 1977, must, therefore, be in keeping with the above provisions of the Constitution and not as if the said Office Memorandum were an entry in Tariff Schedule or a notification levying import duty upon goods"
16. It shall, thus, be seen from the above quoted passage that for interpretation to be placed upon the amendments of Rules 7 and 8 brought about in 1991, the provisions of the Constitution have to be taken into account and the matter is not to be equated as if the interpretation is with regard to Tariff Schedule or matters dealing with levy of import or export duty upon goods.
17. Once the facts of the case have been grasped, it is time to examine the matter on the points that have been pressed by the learned counsel appearing for the petitioners. It is by now a settled proposition of law that there is power to amend both prospectively as also retrospectively. Every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. It is also well settled that unless there are words in the Rules showing the intention to effect existing rights, the Rule must be held to be prospective. In the absence of any express provision or necessary intendment, the rule cannot be given retrospective effect except in the matter of procedure. For what we have said above, sufficient support is available from the recent decision rendered by the Supreme Court in "P. Mahendran and Ors. v. State of Karnataka and Ors. , A. I. R. 1990 S. C. 405. The facts of this case would reveal that if concession as is now available in 1991 Rules is given to the Scheduled Caste/Scheduled Tribe candidates, no one would be adversely affected. On the contrary, we find from the records and in particular the memorandum, reference of which has been given above, and produced by the learned counsel appearing for the State at the time of hearing that even with regard to examination held in 1989, some of the general category candidates were accommodated in the absence of Scheduled Caste/Scheduled Tribes candidates coming under the parameter of eligibility. The posts meant for Scheduled Caste/Scheduled Tribes were carried forward and it was specifically observed that accommodating general class candidates on the posts meant to be occupied by the Scheduled Caste would cause injustice to the latter. The rules do not provide any where that if suitable reserved category candidates are not available, the seats shall be thrown open to the general category candidates. Having thus seen that the amendments if applied retrospectively would not cause harm to any one, it still remains to be seen as to whether by necessary intendment, the same can be held to be retrospective in nature. The facts re-produced above would demonstrate that it is on June 4, 1991 that it was said that relaxation to be provided to Scheduled Castes/ Scheduled Tribe candidates would apply for the examination to be held in February, 1991. It is an admitted position that the reference therein is to the present examination as no examination was held in February, 1991 and the same was actually held in April 1991. While interpreting enactment of Rules or Regulations,' the Court can well go into the background and the reasons necessitating the enactment of Rules and Regulations. Viewed in the background of the case and in particular the memorandum, reference of which has been given above, the amendments brought about in 1991 have to be interpreted retrospectively. Retrospective effect can also be gathered from the language of the enactment and the object and intent of the legislature in enacting it. It has been so held by the Supreme Court in "Sree Bank Ltd. v. Sarkar Dutt Roy and Co., A. I. R. 1966 S. C. 1953". Simply because it took time in amending the rules on account of procedural wrangles and proverbial delay in the various offices it cannot come as an impediment in the way of the petitioners to seek the desired relief particularly when the whole exercise in amending the Rules was to protect their rights. In the facts and circumstances of this case, we thus, hold that the amendment in the Rules is retrospective. We are inclined to accept the contention of learned counsel for the petitioners that the amendment in the present case pertained to a procedural matter and on that count too it has to be interpreted to be retrospective in nature. The procedural amendments are normally retrospective. Change in law of procedure operates retrospectively as no one has a vested right in any course of procedure. Whenever the mode of procedure is altered, the rights arc not altered and it is only a different mode which is prescribed to achieve a particular thing. In "Anant Gapal Sheorey v. The State of Bombay, A. I. R. 1958 S. C. 915, the Supreme Court held :-
"There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. Ha has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament, the mode of procedure is altered he has no other right than to proceed according to the altered mode."
18. A change in the Saw of procedure, thus, operates retrospectively unlike the law relating to vested rights which is prospective and if it involves vested right of somebody then it cannot possibly be retrospective.
19. The Punjab Civil Services (Judicial Branch) Rules 1951 are in parts A, B, C, D, E, F and G. Part A deals with qualifications of candidates for appointment to the service. Part B pertains to the preparation and submission of rolls. Part C which contains Rules 7 and 8 is with regard to examination of candidates. The opening part of Part C is with regard to rules and instructions which are liable to alterations from year to year dealing with the examination of candidates for admission to Judicial Branch of the Punjab Civil Service. Rule 1 deals with the place where the examination is to be held from time to time whereas Rules 2 deals with the fee for examination. Rule 3 prescribes that every candidate whose roll is forwarded to the Commission shall send the treasury receipts for the admission fee to the Commission. Rule 4 deals with the setting up of examination paper and earmarking of awards. Rule 5 gives power to the Judge of the High Court to declare what the subject of the examination shall be. Rule 6 deals with the object of the examination which is to test the practicability of the candidates rather the range of their theoretical knowledge. It is then Rules 7 and 8 the purpose of which may not be stated as the Rules have been quoted above. The word "Procedure" as defined/described in Webster's Seventh New Collegiate Dictionary mentions "A particular way of accomplishing something or of acting, a step in a procedure, a series of steps followed in a regular definite order, a traditional or established way of doing things." Part C of the Rules of 1951, thus, prescribes the procedure in which an examination is to be held and any change brought about in the said Rules would be a change in the procedure with a view to ultimately select and appoint candidates in P.C.S. (Judicial). As held earlier, a change brought about in procedure would be retrospective. We are inclined to accept even the third argument raised by the learned counsel for the petitioners appearing in this case. It is no doubt true that the amendment came into being when it was noticed by the Judge by this Court. There was an anomaly in the existing Rules. Even though a candidate securing 45% marks was made eligible for interview as per Rule 7 of the 1989 Rules, by 8 of the said Rules, the right of a person to be interviewed was rendered totally nugatory. There was no purpose whatsoever to call a candidate for viva voce test if he had obtained 4 5% marks as he could never meet the eligibility criteria even if he was to secure 100 marks in the interview. By virtue of amendment brought about in 1991, it is only a lacuna which was removed. The amendment, thus, has to be held to be of clarificatory nature. It is only something' which was amiss that was inserted and in such a situation, it is only the correct position which shall be said to be in existence ever since when the original Rule or clause containing lacuna came into being In the facts and circumstances of the present case, thus, the amendment brought about in 1991 shall be deemed to be in existence in the Rules that were available prior to the advertisement that came into being with regard to holding of present examination. Even if the matter is looked from another angle i.e. inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by by the language of the relevant provisions therein. The very purpose of the amendment leaves us with no choice but to hold that the amendments brought about in 1991 were retrospective in nature. It was held by the Supreme Court in "Ashok Marketing Ltd. and Anr. v. Punjab National Bank and Ors., A.I.R. 1991 S. C. 855 as under :-
"In the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the' clear intendment conveyed by the language of the relevant provisions therein".
20. Mr. Chatrath, learned counsel for the petitioners also contends that the Punjab Public Service Commission is discriminating against his clients inasmuch as the candidates belonging to Scheduled Castes/ Scheduled Tribes were appointed in relaxation of the minimum qualifying standard prescribed with regard to some other examinations. For the reason that the petitions are being allowed on other grounds as also for the reason that sufficient material has not been placed on the record to make out a case of discrimination, we do not wish to go into this point.
21. The only ground pressed into service at the time of arguments on behalf of Commission is that the amendment of the Rules cannot be given retrospective effect and for this stand reliance has been placed upon the judgment rendered by the Supreme Court in "P. Mahendran and Ors. v. State of Karnataka'', A. 1. R. 1991 S. C. 855. The facts of the said case would go to show that the amending Rules of 1987 which were the subject matter of interpretation in the said case did not contain any express provision giving the amendment retrospective effect nor there was anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. The facts also show that by changing eligibility criteria, the rights of other candidates were adversely affected who qualified for selection and appointment on the date they applied for the post and the procedure of selection had already commenced when the amending Rules came into force. It was clearly observed that the amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment It was further observed that the construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. The process of selection in the said case had started in the year 1983 which had to be completed in accordance with law. The amended Rule was not applied to invalidate the selection already made by the Commission. The ratio of the case as noticed above cannot apply in the facts and circumstances of the present Case.
22. As already observed, the unamended Rule 8 provides eligibility criteria of obtaining atleast 55% marks in the aggregate of all the papers including viva voce test for the purpose of appointment to the service. The aforesaid Rule was repealed and replaced by the new rule which now does not talk of obtaining minimum of 55% marks for appointment to the service. Admittedly, by the time the amendment in the rule came into being in 1991, only written test had been conducted and even the process of interview had not been gone into. The earlier rule having been repealed, the provisions of the new rule have to be given effect as appointments were yet to be made. For the aforesaid reason as well, the ratio of P. Mahendran and Ors. case (supra) would not be applicable to the facts of the present case.
23. Before parting with this judgment, it requires to be observed that the learned counsel appearing for the petitioners cited "Devinder Pal Singh v. The State of Punjab, 1983 (1) S. L. R. 100;, ''State of M.P. and Anr. v. Kumari Nivedita Jain, A. I. R. 1991 S. C. 2045, "The Comptroller & Auditor General of India and Ors. v. Mohan Lal Mehrotra, 1991 (1) J. T. 138 (S. C.), and "Kanwal Parkash and Ors. v. The State of Punjab, 1976 (2) S. L. R. 801. The aforesaid judgments only notice justification for reserving seats for reserved categories under the mandate of Article 16 of the Constitution as also the said reservation would not be violative of Article 14 even if the minimum standard prescribed is further relaxed. The judgment also deal with the justification of issuing instructions or circulars with a view to supplement the statutory rules and the initial presumption in favour of Scheduled Castes/Scheduled Tribes that they are not properly represented.
24. In Civil Writ Petition No. 12483 of 1991, the prayer is for issuance of a direction to the respondents to consider the case of the petitioner under reserve category of Scheduled Castes for Selection to the Punjab Civil Services (Judicial) and not to treat the petitioner in general category. Petitioner Harjinder Pal applied for the reserve category of Scheduled Caste and submitted Scheduled Caste Certificate in the prescribed proforma alongwith his application copy whereof is Annexure PT/2. The petitioner was born in village Jhander Kalan, Tehsil Nawan Shehar, District Jalandhar which is evident from the Scheduled Castes Certificate issued in the name of his father copy whereof is Annexure P-3. The aforesaid fact is also supported by the certificate issued in favour of the petitioner which is also attached with the petition. The petitioner has been residing in Chandigarh for more than 25 years as his father has been working in the Directorate of Rural Developments and Panchayats Punjab at Chandigarh. The petitioner while applying had given his permanent address of the village in his application form. In the interview that was held on June 19, 1991, the petitioner was also called and he was only informed vide interview letter that he was required to bring the L.L.B. (Professional) certificate with him. It is at the time of interview that the petitioner came to know that he was being 'considered only under the general category and not under the Scheduled Caste category. The aforesaid action was presumably on account of the fact that the petitioner had submitted alongwith his application, the Scheduled Caste certificate from the competent authority of Chandigarh and not from the concerned authority from the State of Punjab. The case of the petitioner is that he was asked if he wished to be considered under the reserved category of Scheduled Caste candidates, he should submit the certificate from the State of Punjab and even though there was no need to do so yet he carried out the oral directions given by the Commission of the necessary certificate of Scheduled Caste candidate issued by the Sub Divisional Officer (Civil) of Nawan Shehar District Jalandhar was submitted to the Commission on June 21, 1991 copy whereof is Annexure P-9. A special request was made to the Commission that he should be considered under the reserved category of Scheduled Caste candidates. On the aforesaid facts, Dr. Balram K Gupta; the learned counsel appearing for Harjinder Pal submits that the Commission had no where prescribed that the candidates belonging to Scheduled Caste category are required to submit" the necessary certificate only from the State of Punjab and such a requirement was neither provided in the relevant Rules nor in the advertisement dated September 8, 1990 whereas on the other hand, the advertisement specifically provided that the candidates belonging to Scheduled Caste/Scheduled Tribes of all States and Backward Classes of Punjab alone would be required to pay Rs. 25/- as examination fee. In the absence of requirement to submit certificate from the State of Punjab, no candidate can be rejected to be considered under the Scheduled Caste category, contends the counsel. In alternative the submission is that in any case a Scheduled Caste certificate even attested by Sub Divisional Officer, {Civil) was also submitted and therefore, the action of the respondent-Commission in not considering him in the reserved category of Scheduled Caste was not justified. In support of his contention, the learned counsel relies upon the circular dated February 22, 1985 issued by the Government of India, Ministry of Home Affairs. The above-mentioned circular was sent by the Government of Punjab itself on May 18, 1985 to all concerned authorities for information and necessary action. The aforesaid circular dated February 22, 1985 Issued by the Government of India provides a clarification that a Scheduled Caste/Scheduled Tribe person who had migrated from the State of origin to some other State for the purpose of seeking education and employment etc. will be deemed to be Scheduled/Caste/ Scheduled Tribe of the State of his origin and shall be entitled to derive benefit from the State of origin and not from the State to which he has migrated The counsel also relies upon decision rendered in "Marri C. Shekhar Rao v. The Dean Seth G. S. Medical College", 1990 J. T. 285 (S. C). The Supreme Court has held that in case one has migrated from the State of origin, he shall be entitled to the benefit in the State of his origin and not in the State to which he has migrated. In the written statement filed on behalf of Punjab Public Service Commission it has been averred that the application of the petitioner was considered against the general category candidate as the petitioner had attached the Scheduled Caste certificate dated July 29, 1984 the bare reading of which shows that the petitioner was residing at Chandigarh and not in the State of Punjab. It is further averred that certificate Annexure P-9 said to have been issued by the Sub Divisional Officer (Civil) is not on the prescribed proforma. No comments have been made whatsoever with regard to the circular issued by the Government of India and other facts as have been noticed above. On account of non-traverse, the said facts shall be deemed to have been admitted. The petitioner was residing at Chandigarh only for the reason that his father although hailing from Punjab was posted at Chandigarh with the Directorate of Rural Development and Panchayats Punjab which office is at Chandigarh. He had given his permanent address of village located in Punjab in his application form and had even submitted a certificate although from Union Territory Chandigarh as also Punjab that he belonged to Scheduled Caste category. This fact having not been denied and the only plea that the petitioner is residing at Chandigarh for some years or that the certificate issued by the S. D. O. (Civil) is not on the prescribed pro-forma cannot be sustained. Further, the petitioner is entitled to the benefits that may be available to him front the State to which he originally belongs. As per circular, reference of which has been given above and which has even been followed by the State of Punjab as noticed above in all other regards, the case of the petitioner is at par with other cases.
25. For the reasons mentioned above, these petitions are allowed. A direction is issued to the respondents to prepare a merit list of Scheduled Caste/Scheduled Tribe candidates who were interviewed having secured more than 45% marks even though they had not abtained 55% marks in aggregate inclusive of viva voce. Petitioner Harjinder Pal would be considered in the category of Scheduled Caste candidates and a further direction is issued to the respondents to prepare a merit list as per rules and as per seats that were earmarked for Scheduled Caste/Scheduled Tribe candidates in the advertisement dated September 8, 1990 to appoint the petitioners strictly in accordance with merit. There shall, however, be no order as to costs.