Punjab-Haryana High Court
Navpreet Kumar vs State Of Punjab And Ors on 23 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.20605 of 2012 (O&M)
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.20605 of 2012
Date of decision: 23.12.2014
Navpreet Kumar
..... Petitioner
Versus
State of Punjab and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.ADS Bal, Advocate,
for the petitioner.
Mr.Rajiv Prashad, Additional Advocate General, Punjab.
*****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
By consent, the matter was taken up for final disposal on 21st November, 2014 and the learned counsel for the respective parties were heard at length on the merits of the case. The judgment was reserved which is being pronounced today.
2. This case involves operation of the waiting lists. The mainstay of the argument of the learned counsel for the petitioner was that Punjab Government instructions dated 22nd March, 1957 confer upon her a right to appointment by way of direct recruitment to the posts of Soil Conservation Officers against an unfilled post/vacancy on the analogy of the aforesaid instructions which contemplate vacancies arising within 6 months of the recommendations of the Punjab Public Service Commission. PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.20605 of 2012 (O&M) :2:
3. The respondent-State has filed an affidavit pursuant to the interim orders passed by this Court on 9th October, 2014 requiring information whether the instructions dated 22nd March, 1957 are extant and whether in all cases waiting lists have ceased to operate or exist in the State of Punjab while making appointments to public service. The affidavit discloses that the instructions dated 22nd March, 1957 have been withdrawn vide instructions dated 15th May, 2000 by the Punjab Government in the Personnel Department (PP3 Branch). The fresh instructions are applicable to all administrative departments where posts are being filled through the aegis of the Punjab Public Service Commission, Patiala. It is the categorical stand of the Principal Secretary to Government of Punjab-cum-Financial Commissioner, Department of Agriculture, Punjab that at present, there are no instructions regarding operation of waiting lists as a source of recruitment. It has been mentioned in paragraph 3 of the affidavit that the appointment letters in the present case have already been issued to 25 candidates (including one candidate belonging to reserved category of SC & others) from the approved merit list and no appointment letter can be issued to any other candidate at this stage.
4. Moreover, no waiting list of candidates for the post of Soil Conservation Officer had been prepared by the Government. Therefore, the claim of the petitioner for appointment to the post of Soil Conservation Officer is without any merit. With regard to the unfilled vacancy in the scheduled caste category of selected candidates due to non-acceptance of the offer of appointment by one Satwinder Kaur pursuant to the selection, the vacant post will be filled by a fresh advertisement in the next recruitment process.
5. PARITOSH KUMAR On facts, it may be noticed that the petitioner belongs to the 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.20605 of 2012 (O&M) :3: Sansi tribe which has been declared a Vimukt Jatis falling in the schedule which maintains the group members of the scheduled caste category in Punjab. There is reservation admissible to the extent of 2% of the available vacancies for Vimukt Jattis and Bazigars which is a right created for the first time by notification dated 20th December, 2001 in the direct recruitment quota in Government service. The reservation of Vimukt Jatis and Bazigars operates like this; as per policy circular dated 20th December, 2001 in the direct recruitment quota in Government services, the post lying unfilled in quotas meant for reservation of Balmiki and Mazhabi scheduled caste category, ex-servicemen and scheduled caste sportsmen, will be reserved upto 2% from the Vimukt Jatis and Bazigars. If no candidate of the Vimukt Jatis is available, the said post will then be filled by other scheduled castes.
6. The prescribed percentage of reservation of 2% ear marked for Vimukt Jati and Bazigars is against unfilled posts in the reserved quota of SCs and SC (R&O) and it is not that 2% has to be calculated as an independent percentage of the advertised vacancies. It is not a separate category. It is a sub-reservation within reservation. Therefore, if one post remains unfilled belonging to SC and other categories, 2% of which comes to 0.2 posts will not create a right in the petitioner to claim appointment. A 0.2 share will not bring her within the range of selection even if a waiting list operated which is not the case.
7. It is not possible to maintain a right and to declare it in a minuscule fraction. I would, therefore, reject the claim of the petitioner that the second post meant for SC (Ramdasi &others) category is bound to be given to the petitioner as a legal obligation or that it would clothe the Court with armour to set aside the selection and appointment of the 4th respondent who was proceeded ex parte by order dated 26th August, 2013 in the present PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.20605 of 2012 (O&M) :4: proceedings.
8. Before parting, the stand of the State in the main written statement deserves to be noticed. It is stated that 4 posts of scheduled caste category in the Science group are to be distributed so as to appoint scheduled caste (Mazhabi and Balmiki), Scheduled Caste (Other Categories) and scheduled caste (Ex-servicemen) in the ratio of 2:1:1. The petitioner belongs to the science stream and is entitled to reservation amongst scheduled caste (other) categories. There is only one post for scheduled caste (others) in the science group. Similarly, there is only one post for scheduled caste candidate in the engineering group. It is, therefore, a misnomer being projected by the petitioner that there are two posts of scheduled caste (others) in science group which is wrong. The State has further clarified in the written statement that SC(others) have been divided into science category and the engineering category in 60:40 ratio respectively vide Annexure R-1 which deals with the number of approved posts and candidates to be scrutinized at 133%. The vacancies are distributed therein. It is pointed out that the petitioner has himself admitted in the writ petition that his name falls at second position in the merit list of the scheduled caste (others) category of candidates. However, only one post has to be filled from SC (others) category in the science group which has been filled according to the merit list. As such, said Satwinder Kaur who was first in rank/merit in the scheduled caste (others) category was selected in the science group as a Soil Conservation Officer whereas the petitioner is second in rank/merit. It is another matter, as now disclosed, that she refused the offer and did not join service.
9. If a waiting list is not prepared or operated, as is the categorical stand of the State in the additional affidavit, then the normal rule that the person next in merit to the person who declines the offer of appointment PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document CWP No.20605 of 2012 (O&M) :5: should be offered appointment, does not apply in this case. The preparation of a waiting list to be operated is not a common law right which operates in the absence of rules as a cardinal rule of service law. It is a matter of state policy. When they exist, Courts can insist that they are operated where a selected candidate does not join. Even in such a situation the State is not precluded in its defence, which is reasonable and acceptable, as to why the post should not be filled.
10. Besides, the advertisement issued by Punjab Agricultural University, Ludhiana inviting applications for filling up the posts of Soil Conservation Officer on behalf of the Government of Punjab was published on 29th October, 2011 and the curtains on the recruitment process are drawn. The show is over in terms of the additional affidavit.
11. For these reasons, I find no merit in the petition and order it to stand dismissed without any order as to costs.
(RAJIV NARAIN RAINA) JUDGE December 23, 2014 Paritosh Kumar PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document