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PETITIONER: MALKHAN SINGH

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       07/01/1997

BENCH: A.M. AHAMADI, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      The petitioner is a practising advocate of more than 21 years’ standing.  He applied  for the  post of an Additional District &  Sessions Judge  in  the  Delhi  Higher  Judicial service in  response to an advertisement which was issued in June  1985.   The  advertisement  was  in  respect  of  four vacancies out  of which  two vacancies  were in  the general category, one  was reserved  for a Scheduled Caste candidate and one  was reserved  for a  Scheduled Tribe candidate. The petitioner who belongs to a Scheduled Caste, applied for one of  these  vacancies.  For  the  two  vacancies  which  were reserved for  general category  candidates, one Mr. Malhotra and one  Mr.  singh  were  appointed.  As  against  the  two vacancies which  were reserved  for the  Scheduled Caste and Scheduled Tribe candidates, three scheduled Caste candidates were selected.  No. suitable  Scheduled Tribe candidate was, however, available.  The select  panel approved  by the Full court of  the Delhi  High Court. The three candidates on the select panel, in the order of the merit were: 1 Padam Singh, (2) the  petitioner and  3 L.D  Mual. Padam Singh who was at the head  of  the select Panel was at the head of the Select Panel was  appointed against  the vacancy  for  a  Scheduled Caste candidate.  The petitioner  who was at the serial No.2 was not  appointed   in the  vacancy which  was  meant for a Scheduled Tribe  candidate and  it was  kept unfilled. There being no  other vacancies,  the petitioner and L.D Mual were not given appointments.      Several  vacancies  have  arisen  thereafter,  but  the petitioner was  not appointed.  Hence  he  filed  a  written petition   in the  Delhi High  Court   against his not being appointed.  A  Full  Bench  of  the  Delhi  High  Court  has considered the  case of  the petitioner along with the cases of several  other petitioner  who had  also challenged their non appointment  in respect  of subsequent vacancies. In the case of the petitioner the Delhi High Court has held that he was not  entitled to  be appointed  and  has  dismissed  his petition.      In order  to understanding  the claim of the petitioner it   is necessary  to examine the position regarding filling

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of vacancies  in respect of Additional District and Sessions Judges from  the year  1979 onwards.  In 1979  there was one vacancy for  the post  of  Additional  District  &  Sessions Judge. For filling of vacancies in the Delhi Higher Judicial Service after giving due effect to reservations in favour of the Scheduled  Castes and Scheduled Tribes, under Rule 22 of the Delhi  Higher Judicial  Service Rules 1970, reservations have to  be made in accordance with the orders issued by the Central Govt.  from time  to time.  Accordingly a roaster is maintained. The  vacancy in  the 1979  was at roster point 4 which is  reserved for  Scheduled Tribe  candidate. Since it was a  single vacancy,  it was  treated as unreserved and it was filled  by a  general category  candidate,    Smt.  Usha Mehra. Thereafter,  in the 1981 three vacancies arose. These vacancies were  at a   roster  points 5,6  and 7.  Since the vacancy at  the roster  point 4 had been filled by a general category candidate, the reservation in favour of a Scheduled Tribe candidate  was shifted   to the roster point 5. Roster point 6  was for a general category. Roster point 7 was  for a Scheduled  Caste candidate.  However, roster  point 7  was treated as  for general  category candidate,  Since  out  of three  vacancies only one could be reserved. In other words, the three  vacancies which  arose in 1981 were considered as one for  a Scheduled  Tribe candidate  and two  for  general category candidates.  The two  roster points  6  and  7  for general   category    candidates       were   filled   after advertisement. However,  the vacancy which was reserved fora Scheduled Tribe  candidate could  not  be  filled  since  no suitable  candidate   was  available.  It  was,  thereafter, carried forward.      In 1983,  one vacancy  was advertised  for a  Scheduled Tribe candidate.  To this vacancy roster point 5 was applied which was reserved for a Scheduled Tribe candidate and which had remained  unfilled  in  1981.  Once  again  no  suitable candidate was  available. It  was a proposal was made to the Central Govt. for dereservation of that vacancy.           The  next recruitment  was in 1985. Four vacancies were advertised.  These were at roster points 8,9,10 and 11. All these  roster points  are meant for the general category candidates. However,   the reservation for a Scheduled Tribe candidate at  roster point  4 had remained  unfilled and had been carried  forward in  1981 as  well as in 1983. However, the reservation  for a  Scheduled  Tribe  candidate.  Roster point 9  was kept for a Scheduled Caste candidate in view of the fact  that in  1981, roster  point 7  which  was  for  a scheduled Caste  candidate, had  been filled  by  a  general category candidate.  Hence the  reservation  at  the  roster point 7, was transferred to roster point 9. Roster points 10 and 11  remained  for  general  category  candidates.  These roster points  10  and  11  remained  for  general  category candidates. These  roster points  10 and  11 were  filled by general category  candidates. The  roster points  10 and  11 were filled  by the  general category candidates. The roster point which  has meant  for  a  Scheduled  Caste  candidates (roster point  9) was  filled by  Padam Singh  which  roster point 8  for a Scheduled Tribe candidate once again remained unfilled.         It is the contention of the petitioner that this was the third  recruitment year  of carrying  forward a  vacancy meant for  a Scheduled  Tribe candidate. As per the relevant rules and  instructions applicable   to  this roster, in the third year of carry forward, the Scheduled Caste vacancy was exchangeable with  a Scheduled Caste vacancy. Hence he being on the  select panel  in that  year for  a  Scheduled  Caste candidate, should  have been  appointed to the vacancy which

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was meant  for a  Scheduled Tribe candidate by exchanging it for a Scheduled Caste candidate.      In order  to appreciate this submission it is necessary to refer  to the relevant rules. The Brochure on reservation for Scheduled Castes and Scheduled Tribes in services issued by  the   Govt.  of   India,  Department  of  Personnel  and Administrative Reforms,  Ministry of  Home  Affairs  contain orders and  instructions issued  by the  Govt of  India from time to  time on  the question  of reservations of vacancies for Scheduled Castes and Scheduled Tribes. Chapter 8 of this Brochure deals  with  the  procedure  for  filling  reserved vacancies   in    recruitment   through    U.P.S.C   or   by advertisement. On the subject pf a single vacancy arising in any given  year which  is  meant  for  a  reserved  category candidate, the  instructions of  the Department of Personnel and A.R.O.M  No.1/9/74-Estt. (SCT) dated 29th of April, 1975 state that  the matter  has been  considered in the light of the judgment  of this  Court dated  11th of October, 1973 in the case  of  Arati  Ray  Choudhury  v.  union  of  India  & ors.(vide AIR  1974 SC  532). It  was now  been  decided  in partial modification  of the  earlier orders  referred there that  "where   only  one   vacancy  occurs  in  the  initial recruitment year  and the corresponding roster point happens to be for a Scheduled Caste or Scheduled Tribe, it should be treated  as   unreserved  and  filled  accordingly  and  the reservation carried  forward to subsequent three recruitment years hitherto.  In the subsequent year(s), even if there is only one vacancy, it should be treated as "reserved" against a carried  forward reservation  from the initial recruitment year and  a Scheduled  Caste/Scheduled Tribe  candidate,  if available, should  be appointed in that vacancy, although it may happen  to be  the  only  vacancy  in  that  recruitment year......". It  was in  the light  this instruction that in 1979 when a single vacancy arose at roster point 4 which was reserved for a Scheduled Tribe candidate. It was filled by a general category  candidate and the reservations was carried forward to  the next  three  recruitment  years.  This  also explains why  in 1981  the carried  forward  vacancy  for  a Scheduled Tribe candidate remained unfilled and was  carried forward to  1983 when once again the vacancy for a Scheduled Tribe candidate  remained unfilled. A proposal, however, for dereservation   was submitted  for the purpose of filling it by a  general category  candidate. We are not concerned with this aspect.  What is  material to note is that both in 1989 and in  1983 the  vacancy for  a Scheduled  Tribe  candidate remained unfilled  and   the reservation was carried forward while other  candidates   were recruited. In 1985 therefore, the reservation  which was  for a  Scheduled Tribe candidate was being advertised for the third time.      Chapter 11  of the Brochure deals with carrying forward of  reservations   and  exchange   of  reservation   between Scheduled Castes and Scheduled Tribes. Paragraph 11.1 states as follows :-      "11.1     carry forward of    reser      vations.           If   sufficient    number   of      Scheduled  Castes   and   Scheduled      Tribes  candidates   fit  for   the      appointment    against     reserved      vacancies are  not available,  such      vacancies can  be dereserved  after      following the  prescribed procedure      for dereservation  as in chapter 10      and such  reserved vacancies can be      filled  by   candidates  of   other

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    communities.       After       such      dereservation,   reservations   are      carried forward to subsequent three      recruitment years.....      NOTE (1)  :    Recruitment     year      shall mean  a ’calendar  year’  and      for purposes  of the  three  years’      limit for carry forward of reserved      vacancies shall  mean the  in which      recruitment is actually made.      NOTE (2) : .........      Paragraph 11.2 as follows .....      "11.2     Exchange  of  reservation      between   Scheduled    Castes   and      Scheduled Tribes.           While vacancies  reserved  for      Scheduled  Castes   and   Scheduled      Tribes may  continue to  be treated      as reserved  for    the  respective      community  only,  Scheduled  Tribes      candidates may  also be  considered      for appointment  against a  vacancy      reserved   for   Scheduled   Castes      candidates  and   vice-versa  where      such a  vacancy could not be filled      by a  Scheduled Caste  or Scheduled      Tribe candidate  even in  the third      year to  which the  reservation  is      carried   forward.    The    normal      provision is  that the  exchange is      permissible    only     for     the      reservations   which    have   been      carried  forward   to   third   and      subsequent         year          of      recruitment.........."      There is  considerable merit  in the  contention of the petitioner that  1985 was the third recruitment year for the reservation meant  for a  Scheduled Tribe  candidate and  in that year  the reservation  could have  been exchanged for a Scheduled  Caste   candidate,  especially  in  view  of  the definition of  "recruitment year"  in Note  (1) to paragraph 11.1. The  benefit of  such exchange  was not  given to  the petitioner because  of the  erroneous view taken by the High Court that  the post  was not  exchangeable in 1985. We need not, however,  examine this  matter any  further because the petitioner has by now attained the age of fifty years and he has  very   fairly  accepted   that  it  would  not  now  be appropriate to  appoint him as an Additional District Judge, and he will be content if his stand is vindicated.      In these circumstances, we pass no order on the special leave petition which is disposed of.