Gurmeet Pal Singh vs State of Punjab & Anr.

Reservation – Right of members belonging to reserved category to be included in the unreserved category – Held: Members belonging to the reserved category, who get selected in open competition on the basis of their merit, have a right to be included in the General/Unreserved category and are not to be included in the quota reserved for the SC category.

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Non-availability of candidate under Physically Challenged category – Vacancy carried forward for the future – Propriety of – Held: Provisions of the 1995 Act are towards the social objective of accommodating people with physical disability – There is nothing wrong in carrying forward the vacancy for the future.

Dismissing the appeals, the Court

HELD: A.Effect of elevation of a Judge from the category of direct advocate recruits to the High Court:

1.1 The elevation of one Justice Sabina on 12.03.2008 is a matter of fact. The submission of the appellants is that one more seat for General category became available post issuance of the advertisement and since the number of posts were subject to variation, this vacancy should be made available to the General category. It is not in dispute that the advertisement was issued prior to such elevation on 02.02.2008 and the advertisement noted the possibility of the number of posts being subject to variation. However, this would not mandate the inclusion of a post which fell vacant subsequently, nor can there be even otherwise a compulsion on the High Court to necessarily expand the scope of the number of persons to be recruited. In fact, the persons, who may have become eligible post the advertisement would suffer a prejudice were subsequent vacant posts to be included against an earlier advertisement. The plea based on the vacancy of this seat is, thus, completely devoid of merit.[Para 7][1044-C-E] B. The provision wrongfully made in the advertisement reserving two seats for Ex-Servicemen:

1.2 The advertisement did make a provision for two seats for Ex-Servicemen– one in General category and one from Backward Class category. However, such reservation had no force of law in view of Rule 3 of the Punjab Recruitment of ExServicemen Rules, 1982 carving out an exception in respect of the Punjab Vidhan Sabha Secretariat Service and the Punjab Superior Judicial Service. The High Court having noticed this fact, abandoned the process of recruitment for this category. It did initially resolve that the vacancy advertised for Ex-Servicemen (General) would also go to the General category but ultimately that is not what was done. The said seat was, however, made available for absorption of the Judges from the Fast Track court. [Paras 4, 8][1044-F-H]

C.The recruitment of two Judges from Fast Track Courts:

1.3 The appointment of two Judges in the Fast Track court was made against the two vacancies, i.e., one of ExServicemen(General) category and the second which occurred on elevation of Justice Sabina from the subordinate judiciary to the High Court. Such selection was preceded by a Selection Committee constituted by the High Court in order to assess the suitability for absorption of the Judges. A completely different process was followed for absorption of the Judges from the Fast Track court. The moot point, however, remains whether one of the vacancies in the advertisement, which arose ought to have been utilized for absorption of these Fast Track court Judges, which, in turn, affected the senior-most, the appellant. In a way, the appellant suffered the consequences both of a more meritorious candidate from the SC category being found eligible, because of which he went one slot down. But, it is a wellestablished legal position that members belonging to the reserved category, who get selected in open competition on the basis of their merit have a right to be included in the General/Unreserved category and are not to be included in the quota reserved for the SC category. [Paras 11, 12][1046-B, D-E]

1.4 Insofar as the adjustment against the seat which was made available on account of the wrongful reservation for ExServicemen, the fact that the said appellant made an endeavour by taking three successive subsequent exams held on 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful, cannot be lost sight of. Not only that, there has been a passage of a decade since the initial recruitment and though the appellants cannot be blamed for judicial delays, it is really not possible to put the clock back. Thus, the recruitment process is not interfered with on this aspect. [Paras 13, 14][1046-F-G; 1047-A]

D. Non-availability of candidate with disability:

1.5 The plea based on an inherent right in view of the wording of the advertisement qua the seat meant for person with disability when no candidate is available is intrinsically flawed. The provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, are towards the social objective of accommodating people with physical disability. There is nothing wrong in carrying forward the vacancy for the future. [Para 15][1047-B-C]

E.The larger recruitment was possible since the cadre strength was more:

1.6 The undisputed fact is that the advertisement was issued on the basis of a cadre strength of 107. Twenty-seven(27) posts would arise in the category in question and six (6) were already occupied, thus, the advertisement was issued for twenty-one(21) posts. The advertisement was not challenged by any of the appellants. When a candidate appears in an examination without objection and is subsequently found to be not successful a challenge to the process is precluded. Thus, undoubtedly the appellants not having challenged the advertisement at the relevant point of time, cannot be permitted to contend that having not made the mark in the cut off for the select list, something must be done to somehow accommodate them. The plea of the existence of a larger number of posts is in this direction. No doubt every endeavor should be made to fill up the existing vacancies and prospective vacancies. However, there cannot be a blanket proposition that the advertisement is defective merely because every vacancy which existed or which is contemplated was not taken into account. A subsequent vacancy arising from an elevation can hardly be treated as in contemplation. Merely because the name of a candidate finds a place in the select merit list does not given an indefeasible right to appointment as well and it is always open to not even fill up a vacancy. The cadre strength of 111 relied upon by the appellants is available from the Gradation and Distribution List of Officers of the Judicial Department, Punjab corrected up to 31.01.2010, i.e., which was subsequent to the advertisement and the recruitment process. Thus, the appellants cannot get any relief even on this ground. No relief is granted to the appellants. [Paras 16, 17 and 18][1047D-G; 1048-A-B, D-E]

Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC

1 : [2002] 3 SCR 810; Samta Andolan Samiti v. Union of India (2014) 14 SCC 745 : [2013] 11 SCR 1124; Ashok Kumar & Anr.v. State of Bihar & Ors. (2017) 4 SCC 357 : [2016] 8 SCR 815; Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127 : [2002]

3 SCR 948; Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors. (2008) 17 SCC 703;

Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCC 532 : [2016] 4 SCR 439 – relied on.