http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: JAGJIT SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT28/03/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. TULZAPURKAR, V.D.

CITATION:  1978 AIR  988            1978 SCR  (3) 547  1978 SCC  (2) 196

ACT: Service  matter-Punjab Civil Service (Executive  Branch)-one out of six posts for each year reserved for Scheduled Castes candidates-Appellant,  a  Scheduled Caste  candidate  placed third  in merit list of Scheduled Castes candidates  One  of the  two  candidates  resigned  a  year  after  appointment- Appellant  laid  claim. for resultant  vacancy-If  could  be appointed-State Government Circular-Scope explained.

HEADNOTE: In  each  of the two years of 1971 and 1972 there  were  six vacancies  in the Punjab Civil Service  (Executive  Branch). To select eligible candidates for these 12 vacancies in  the Punjab  Civil  Service  and other vacancies  in  the  allied services, after completion of the requisite formalities  the State  Service Commission held the  competitive  examination called   the  Punjab  Civil  Service  and  Allied   Services Examination  in  December 1972-January, 1973.  In  the  said examination, the appellant secured third place in the  merit list of Scheduled Castes candidates.    Since    only    two posts, one each for the years 1971 and 1972 on the basis  of 20%  quota reservation for Scheduled Castes  candidates,were available in   the  Punjab Civil Service (Executive  Branch) the  appellant could not be appointed.  In June,  1974  when one  of the selected candidates bad resigned his  post,  the appellant  on  the basis of the  State  Government  circular dated March 6, 1961, laid claim for being appointed  against the  resultant vacancy.  But the State  Government  rejected his claim. The High Court dismissed his petition under Art. 226 on  the ground  that the State Government did not choose to fill  up the vacancy on an ad hoc basis and since the merit list  for the  years  1971  and  1972  stood  exhausted  and  a  fresh competitive  examination was held to fill up  the  vacancies available for the years 1973 and 1974, persons borne on  the previous  years’ lists had no right to be appointed  against the vacancy occurring thereafter. Allowing the appeal to this Court, HELD : 1. The resultant vacancy caused by the resignation of one  of the Scheduled Castes candidates should have gone  to the  appellant who was entitled to it both on the  basis  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

merit  and the policy statement contained in the  Government circular  as  well  as  on  the  fact  that  no  competitive examination had been held by the Commission between 1972 and the end of 1974. [557 (G-H, 52 A] 2. The statutory rules relating to reservation of  vacancies cannot  operate as impediment in the way of the  appointment of the appellant as it would by no means increase the number of  the  two  posts reserved by the  Government  itself  for members  of Scheduled Castes during the relevant year.   The instructions  contained in the circular not  only  deprecate the  then existing practice according to which in  cases  of termination   of  the  services  of  a  Government   servant belonging  to Scheduled Castes/Tribes and backward  classes, the  resultant  vacancy was included in the normal  pool  of vacancies  to  be  filled up in accordance  with  the  block system and characterise it as repugnant to the dominant idea of  giving  due representation to the members  of  Scheduled Castes/ Tribes are terminated, the resultant vacancy  should not be included in the normal pool of vacancies to be filled up in accordance with the block system but should be  filled up on an ad hoc basis from the candidates belonging to those castes.  The intention of the Government was that the  posts vacated  should  remain earmarked and be filled  up  by  the members belonging to those castes only. [551 D-F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2962  of 1977. (Appeal  by Special Leave from the Judgment and  Order  3-9- 1976  of  the  Punjab & Haryana High Courts  in  Civil  Writ Petition No. 2504 of 1975). 548 M. R. Agnihotri and P. C. Bhartari for the Appellant. S. K. Mehta and K. R. Nagaraja for the Respondent. The Judgment of the Court was delivered by JASWANT  SINGH, J. This appeal by special leave is  directed against  the judgment and order dated September 3,  1976  of the Punjab & Haryana High Court dismissing the writ petition No.  2504 of 1975 filed by the appellant under Articles  226 and 227 of the Constitution. The circumstances leading to this appeal are : Six vacancies in  the  Punjab  Civil  Service  (Executive  Branch)  having occurred  in the year 1971, the State  Government  requested the  Punjab Public Service Commission (hereinafter  referred to   as  ’the  Commission)  to  select  and  recommend   six candidates to fill up the said vacancies.  According to rule 6  read with rule 11 of the Punjab Civil Service  (Executive Branch) Rules, 1930, recruitment to the Punjab Civil Service (Executive  Branch) has to be made from amongst the  persons whose names are borne on the register known as ’Register  B’ on  the basis of the result of the  competitive  examination held  by  the Commission in conformity with  the  rules  and regulations  framed  in that behalf.  As  longer  time  than anticipated  was  taken  in  holding  the  examination   and completing  the  selection  and in the  meanwhile  six  more vacancies  in  the Punjab Civil Service  (Executive  Branch) occurred  in  1972,  the  State  Government  requested   the Commission to recommend the names of six more candidates  on the basis of the result of the corn petitive examination for filling  up the additional six vacancies. Accordingly  after completion of the requisite formalities, the Commission held the competitive examination called the Punjab Civil  Service and  Allied Services Examination in December,  1972/January,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

1973  to  select eligible candidates for  the  aforesaid  12 vacancies in the Punjab Civil Service and other vacancies in the Allied Services.  In the said examination, the appellant who  was  a  member of the Scheduled  Castes  secured  third position  in  the  order of  merit  amongst  the  candidates belonging to the Scheduled Castes-, the other two candidates above  him  being Harinder Singh Khalsa and Hans  Rai  Megh. The   Commission  recommended  12  persons   including   the aforesaid three persons who belonged to the Scheduled Castes for  recruitment  to  the Punjab  Civil  Service  (Executive Branch).   As the appellant had been placed at serial No.  3 in  the order of merit amongst the candidates  belonging  to the  Scheduled Castes in the aforesaid examination and  only two  posts,  one each for the years 1971 and  1972,  in  the Punjab  Civil Service (Executive Branch) were available  for members  of the Scheduled Castes on the basis of  20%  quota reserved  for them against which Harinder Singh  Khalsa  and Hans  Raj  Megh Were appointed, the appellant could  not  be recruited  to the Punjab Civil Service  (Executive  Branch). He was, however, appointed as ’A’ Class Tahsildar in one  of the  Allied Services as per the second preference  indicated by  him in his application seeking admission to  the  Punjab Civil Service and Allied Services Examination.  Consequent upon   his   selection  for  appointment   in   the   Indian Administrative  Service,  Harinder  Singh  Khalsa,  who  had joined the post of Extra Assis- 549 tant  Commissioner  in the Punjab Civil  Service  (Executive Branch)  on or about June 21, 1974 resigned his  office  and was  relieved therefrom on August 11, 1974.  Being the  next candidate  in  order of merit amongst  the-Scheduled  Castes candidates  in the select list of the Punjab  Civil  Service (Executive  Branch), the appellant made a representation  to the  State Government claiming on ad hoc basis  the  vacancy caused  by  the  resignation of  Harinder  Singh  Khalsa  in accordance   with   the  State   Government’s   instructions contained in Circular letter No. WG II-13 (29)-61/5598 dated March  6,1961.the  validity  whereof had been  upheld  by  a Division  Bench  of  the Punjab & Haryana  High  Court  vide judgment  dated  May  26,  1966 in C.W.  No.  3063  of  1965 entitled  "Harbhajan Lal Mudgil & Anr. v. State of Punjab  & Ors.  The said Circular letter reads as follows               "No.  WGII-13(29)-61/5598 From Shri E. N. Mangat Rai, I.C.S. Chief Secretary to Government, Punjab TO All Heads of Departments, Commissioners of Divisions, Deputy Commissioners and the District and Sessions Judges in the Punjab and the Registrar, High Court, Punjab. Dated : Chandigarh, the 6th March, 1961. SUBJECT   :   Representation   of   members   of   Scheduled Castes/Tribes and Backward Classes in service in Punjab. Sir, I  am  directed  to refer to Punjab  Government  letter  No. 28400WG-S-56/8090, dated the 9th November, 1956, wherein  it is stated that with a view to ensuring due representation to members of Schedules Castes/Tribes and Backward Classes  in Government service recruitment on a Block System based on  a formula  of  rotation  is to be made,  and  that  the  first vacancy  is to be reserved for a member belonging  to  these Castes/Classes  irrespective  of his position inter  se  the other candidate and the remaining four vacancies for others. The  instructions  further  enjoin that in case  it  is  not possible  to fill the first reserved vacancy by  appointment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

of  a  candidate  be- longing to  Scheduled  Caste/Tribe  or Backward classes, this vacancy may be filled by a  candidate other  than  one  belonging  to  Scheduled  Caste/Tribe   or Backward  Classes,  and the reservation be carried  on  from vacancy  to  vacancy  in the same  block  until  a  suitable candidate  for  the  vacancy in the block  has  been  found. According  to  the existing practice if the  services  of  a government  servant belonging to  Scheduled Caste/Tribe  and Backward  Classes  are terminated the resultant  vacancy  is included in the normal pool of vacancies and is filled up in accordance with the Block System.  It has been observed that in this way the underlying idea of giving due representation to members of Scheduled Caste/Tribe and Backward Classes  is not 550 achieved.   With  a view to safeguard the interests  of  the members of the Scheduled Castes/Tribes and Backward Classes, it  has  been decided that if the services of  a  Government Servant  belonging to Scheduled Castes/Tribes  or  Backward’ Classes are terminated, the resultant vacancy should not  be included  in  the normal pool of vacancies to be  filled  in accordance with the Block System but should be .filled up on ad  hoc basis from the candidates belonging to these  castes and classes.  In other words the intention is that the posts vacated  by members of Scheduled Castes/Tribes and  Backward Classes should remain earmarked and be filled up by  members belonging to these Classes. 2.  There  will not be any practical difficulty  in  finding suitable candidates belonging to Scheduled Castes/Tribes and Backward  Classes  in  so far  as  non-technical  posts  are concerned.   However,  for  the technical  posts  and  those requiring  specialised training, or  qualification  suitable personnel sessing requisite experience and qualification may not  be  available.   Therefore, in order  to -avoid’  any administrative  inconvenience  by  keeping  those  posts  in abeyance  for an indefinite period, such post may be  filled up  by  candidates other than those belonging  to  Scheduled Castes/Tribes  and Back-ward Classes on the  condition  that whenever  suitable persons belonging to such  Castes/Classes are  available  and  there is need for  filling  tip  a  new vacancy,  the  members of the Scheduled  Castes/Tribes and Backward  Classes  should be given their earlier  quota  for making up their deficiency arisen out of a  non-availability of their technical persons at that time. 3.   The  receipt  of  this  communication  may  please   be acknowledged.                            Yours faithfully,                                  Sd/-                  Deputy Secretary, General Administration                 for Chief Secretary to Government, Punjab." The   Government  rejected  the  aforesaid  claim   of   the appellant,  whereupon  lie approached tbe Punjab  &  Haryana High  Court  by means of the aforesaid  petition  which,  as already  stated, was dismissed by the High.  Court vide  its judgment and order dated September 3, 1976. While  repelling  the contention advanced on behalf  of  the State  that  if  the vacancy caused by  the  resignation  of Harinder  Singh Khalsa was offered to the  Scheduled  Castes candidate,  though on ad hoc basis, the number of  vacancies to be filled up by the Scheduled Castes and Scheduled Tribes candidates would go beyond 50% and thereby exceed the  limit of reserved vacancies  fixed by the statutory rules relating to  reservation  of vacancies in the  Punjab  Civil  Service (Executive  Branch) and holding that if the, vacancy  caused by the resignation of Harinder Singh Khalsa was filled up on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

ad hoc basis by appointing a member of Scheduled Castes, the number   of  vacancies  filled  by  the   Scheduled   Castes candidates  would  still  remain  the same  and  if  a  non- Scheduled Castes candidate was appointed against that 551 vacancy,  the very purpose of the Government’s  instructions contained  in  the  aforesaid circular No.  WG  II-13  (29)- 61/5598  dated  March 6, 1961 would be  defeated,  the  High Court   still  dismissed  the  aforesaid  petition  of   the appellant on the ground that as the State Government did not choose  to fill up the vacancy on ad hoc basis and  a  fresh ,competitive  examination was held to fill up the  vacancies available for the years 1973 and 1974 in which the appellant never  appeared  and  the aforesaid vacancy  caused  by  the resignation  of  Harinder Singh Khalsa was filled  up  along with the other vacancies in accordance with the Block System keeping  in  view  the reserved quota, and  the  merit  list prepared  by the Commission stood exhausted by the  appoint- ment  of 12 persons against the 12 vacancies available  with respect  to  the, years 1971 and 1972, the persons  home  on that  list  had no right to be appointed against  a  vacancy which  occurred  thereafter.  The High Court  further-  held that the appellant had no locus standi to challenge the non- inclusion  of  the  vacancy caused by  the,  resignation  of Harinder Singh Khalsa in the reserved quota. We frankly confess we are unable to understand the rationale or approach of the High Court which manifestly runs  counter to  the aforesaid instructions- of the Government  contained in  Circular No. WG 11-13(29)-61/5598 dated March  6,  1961. The  instructions  not  only  deprecate  the  then  existing practice  according to which in case of termination  of  the services  of  a Government servant  belonging  to  Scheduled Castes/Tribes  and backward classes, the  resultant  vacancy was included in the normal pool of vacancies to be filled up in- accordance with the block system and characterise it  as repugnant to the dominant idea of giving due  representation to  the  members of Scheduled  Castes/Scheduled  Tribes  and backward classes but go on to lay down in unmistakable terms that  if the services of a Government servant be-longing  to Scheduled Castes/Tribes or Backward Classes are  terminated, the  resultant vacancy should not be included in the  normal pool  of  vacancies to be filled up in accordance  with  the block  system but should be filled up on ad hoc  basis  from the  candidates belonging to these castes and classes.   The instructions  put the matter beyond the pale of  controversy by   emphatically  declaring  that  the  intention  of   the Government  was  that  the  posts  vacated  by  members   of Scheduled  Castes/Tribes and Backward Classes should  remain earmarked  and be filled up by the members belonging to  the Scheduled Castes/Tribes and Backward Classes. In  face  of these clear and categorical  instructions,  the contention advanced on behalf of the State that the  vacancy meant  for  Scheduled Castes having been  ince  utilised  by Harinder  Singh Khalsa ceased to be a reserved  vacancy  and the appellant had no right to be appointed against it cannot be countenanced and consequently the claim of the  appellant cannot  but be upheld.  We have, no doubt in our  mind  that the resultant vacancy caused by the resignation of  Harinder Singh Khalsa should have gone to the appellant who  belonged to  the Scheduled Caste and was entitled to it both  on  the basis of the merit and the policy statement contained in the aforesaid  Circular letter of the Government as well as  the fact  that no competitive examination had been held  by  the Commission between 1972 552

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

and  the  end of 1974 in which the appellant could  have  or should  have  appeared.   ’Ale  may  also  state  that   the statutory rules relating to reservation of vacancies  cannot operate  as an impediment in the way of the  appointment  of the appellant as it would by no means increase the number of the  two  posts reserved by the Government  itself  for  the members  of  the  castes to which  the  appellant  belonged, during the relevant years. For  the  foregoing reasons, we are unable  to  sustain  the judgment  and order of the High Court.  In the  result,  the appeal succeeds and is hereby allowed with costs  quantified at Rs. 2,000/-. P.B.R.                          Appeal allowed. 553