Service Law – Candidates Appointment – Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
(T.S. THAKUR, CJI.) AND (R. BANUMATHI) JJ.
May 12, 2016
CIVIL APPEAL Nos.5035-5036 OF 2016
(Arising out of SLP(C) Nos.23748-23749 of 2012)
KULWINDER PAL SINGH AND ANR. ..Appellants
STATE OF PUNJAB AND ORS. …Respondents
J U D G M E N T
R. BANUMATHI, J .
2. These appeals are preferred against the common judgment dated 13.02.2012 whereby the High Court of Punjab and Haryana dismissed the writ petitions C.W.P. No.20135 of 2008, C.W.P. No.20189 of 2008 and C.W.P. No.21746 of 2008, 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.
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) vide 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; 02 posts for Physically Handicapped; 10 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 20th to 22nd July, 2007. The viva voce was conducted from 28th to 30th November, 2007 and final result was declared on 01.12.2007. 27 candidates from general category, 10 candidates from scheduled castes and 05 candidates from backward classes were declared 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, seven candidates from the general category i.e. candidates upto Sl. No.34 and 01 candidate from backward classes were offered appointments. However, three candidates belonging to generalcategory namely Sumit Garg, Vijayant Sehgal and Yogesh Chaudhary placed at Sl. No.1, 5 and 32 respectively did not join the service. Resultantly, thirty one general category candidates accepted the appointment and joined service.
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 Sl. Nos. 37 and 36 and Parminder Singh Grewal at Sl. 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 them. The representation of the appellants was considered in the sixteenth meeting of the Administrative Committee held on 08.12.2010 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 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 of 2003, as per the order ofthe Supreme Court, twenty two candidates were to be appointed. At that time in the Punjab Judicial Service, only six posts were available and therefore sixteen temporary posts were sanctioned by the Punjab Government on 22.07.2008 with a specific condition that those temporary posts shall be adjusted 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 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.
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 general category. It was further held that as against 27 vacancies available for general category candidates, 31 general category candidates have already joined andare actually working i.e. candidates much more than the vacancies advertised have been permitted to join and thus the select list of 2007-2008 stands exhausted. Aggrieved thereof, appellants have preferred these appeals. Be it noted that Parminder Singh Grewal whose writ petition also came to be dismissed by the common judgment 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 Engineers’ 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 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 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.
9. As against 27 posts of general category advertised, all 27 candidates joined. Out of de-reserved 08 posts, 01 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 Sl. Nos. 1, 5 and 32 of the merit list to whom 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.
10. There is no denying that the appellants were placed in the select list at Sl. Nos. 35, 36 and 37. In the sixteenth meeting of Administrative Committee held on 08.12.2010, considering the representation of the appellants it was “resolved to recommend, subject to approval of the full court, to the Government of Punjab fortheir appointment as Civil Judges subject to availability of vacancies”. But in the eighteenth meeting of the Administrative Committee held on 06.07.2011, the Committee took note of the direction issued by the Supreme Court to appoint twenty two candidates selected in the years 1998, 1999, 2000 and 2001 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 that the post will be abolished 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:-