Sudeepti Sharma v State of Punjab and others

Punjab And Haryana High Court

19 August 2013

CWP No. 20729 of 2008

The Judgment was delivered by : Hemant Gupta, J.

1. This order shall dispose of afore-mentioned writ petition along with other writ petitions, as mentioned in the foot note of this order, preferred by the candidates, who appeared in the Punjab Superior Judicial Service examination process set in motion vide notification dated 02.02.2008 (Annexure P-1).

2. The above said notification was published by this Court inviting applications for filling up 21 posts i.e. 10 from General category; 6 from Scheduled Castes category; 2 from Backward Classes category; 2 posts from Ex-servicemen category (one each from General and Backward Class) & 1 from Physically Challenged category having locomotive or orthopedic disability, for appointment of Punjab Superior Judicial Service by direct recruitment through competitive examination under Rule 7(3) (c) of the Punjab Superior Judicial Service Rules, 2007 (for short “the Rules”). There was relaxation in age contemplated for Scheduled Castes, Backward Classes as well as Physically Challenged persons. For deciding the present set of writ petitions, the relevant Clauses from the Notification read as under:

“4. The candidates belong to physically challenged category will cover the candidates, who are suffering from locomotor disability and orthopaedic disability. They will be eligible to apply, but their candidature would be provisional. The successful physically challenged candidates will be subjected to medical examination by the Medical Board appointed by the High Court, in order to see if they are medically fit to perform the duties of District Judge or not. If no candidate is found suitable or medically fit under this category, the post shall be reverted to the General category candidate.

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9. No candidate will be called for the viva voce unless he/she obtains 40% marks in each paper and 50% marks (45% for the SC/BC category candidates, instead of 50%) in the aggregate.

Further, no candidate will be considered to have successfully qualified the Punjab Superior Judicial Services Examination unless he/she obtains 50% marks (45% marks for the SC/BC category candidates) in the aggregate out of the total marks fixed for the written examination and viva voce. It is made clear that merely having obtaining 50% marks (read 45% for the SC/BC category candidates) in the written examination will not confer a right on a candidate to be called for the viva voce and the High Court may short list the candidates equal to 3 times the number of vacancies to be called for the viva voce. It is also made clear that no candidate will get the right to be appointed even if he/she obtains 50% marks (45% marks for the SC/BC category candidates) in the aggregate of the written examination and viva voce. However, candidates will be appointed strictly in the order of merit (category wise) in which they are placed after the result of written examination and viva voce.”

3. In pursuance of such notification, some of the petitioners were called for interview in view of the satisfaction of the condition of obtaining 40% marks in each paper and 50% marks in aggregate, which was 45% for the SC/BC category candidates. After considering the marks obtained and in terms of the conditions in the advertisement, 10 candidates from General category including 1 candidate from Scheduled Castes category, who has obtained more marks than the last candidate from the General category candidates, were appointed and 2 candidates from Backward Classes were appointed. However, none from the Scheduled Castes category or Physically Challenged category could qualify for appointment. Aggrieved against non-appointment of the petitioners, the following writ petitions were filed:

 

Sr. No.	Case No.	Petitioner	Category	Merit No.
1.	CWP No.1999 of 2009	Gurmeet Pal	General	10
2.	CWP No.2246 of 2009	Anuradha	General	11
3.	CWP No.21249 of 2008	Kadambini	General	12
4.	CWP No.4339 of 2010	Preeti	General	14
5.	CWP No.3769 of 2009	Parmod Kumar	General	15
6.	CWP No.12437 of 2009	Balkaran Singh	General	16
7.	CWP No.2373 of 2009	Munish Kumar	General	17
8.	CWP No.20729 of 2008	Sudeepti Sharma	General	18
9.	CWP No.4180 of 2009	Dharaminder Singh	General	20
10.	CWP No.1568 of 2009	Jaswant Rai	General	24
11.	CWP No.21410 of 2008	Vishal Sharma & another	General	Not called for interview
12.	CWP No.19033 of 2008	Narinder Chhibba	Handicap Candidate	Not qualified for interview
13.	CWP No.21065 of 2008	Sukhwinderjit Singh	Backward Class Candidate	Not qualified for interview
14.	CWP No.6441 of 2009	Balvinder Kaur Dhaliwal	Scheduled Caste Candidate	Not qualified for interview

4. The challenge in the present writ petitions is on the following grounds:

(1) That the reservation for the Scheduled Castes and Backward Classes has been done in terms of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006. Such Act provides for reservation in the ‘establishment’, which has been defined to mean any office of the State Government etc., whereas the ‘State Government’ has been defined to mean Government of the State of Punjab in the Department of Welfare of Scheduled Castes and Backward Classes. It is, thus, contended that the reservation could be made only in the Department of Welfare of Scheduled Castes and Backward Classes and not in any other Department of the State Government. The relevant provisions of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 read as under:

“2. In this Act, unless the context otherwise requires –

xx xx

(c) “establishment” means any office of the State Government, a local authority or a statutory authority constituted under any State Law for the time being in force, or a Board or Corporation in which not less than fifty one per cent of the paid up share of capital is held by the Government of the State of Punjab and includes University or colleges affiliated to the University, primary and secondary schools and other education institutions, which are owned by the State Government and also includes an establishment in public sector;

xx xx

(h) “State Government” means Government of the State of Punjab in the Department of Welfare of Scheduled Castes and Backward Classes.

xxx xxx xxx

4. (1) While making appointments in services by any of the methods, provided under any Service Rules, reservation shall be made for the members off the Scheduled Castes and Backward Classes in the services under all the establishments.

(2) The percentage of reservation for filling up the vacancies by direct recruitment or by transfer in Group ‘A’, Group ‘B’, Group ‘C’ and Group ‘D’ services, shall be twenty five per cent for Scheduled Castes and twelve per cent for Backward Classes.

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5. (1) A candidate, who claims to be a member of Scheduled Castes, shall support his candidature as such by a certificate of caste identification, issued under the Constitution (Scheduled Castes) Order, 1950 notified by the President of India for the State of Punjab.

(2) A candidate, who claims to be a member of Backward Classes, shall support his candidature as such by a certificate of class identification as per the notification, issued by the State Government in this regard from time to time.

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7. (1) There shall be no de-reservation of any reserved vacancy by any appointing authority in any establishment, which is to be filled up by direct recruitment or by promotion. In case, a qualified or eligible Scheduled Castes or Backward Classes candidate, as the case may be, is not available to fill up such vacancy, in that situation, such vacancy shall remain unfilled. xxx xxx xxx

13. Notwithstanding anything to the contrary contained in any other law for the time being in force, or any judgment, decree, order or decision of any court or any authority, the provisions of this Act or the Rules made thereunder, shall have effect.”

2. That the reservation for the Ex-servicemen is contemplated under the Punjab Recruitment of Ex-servicemen Rules, 1982. It is contented that such Rules apply to all civil services except the Punjab Vidhan Sabha Secretariat Service and the Punjab CWP No.20729 of 2008 & other connected matters 6 Superior Judicial Service. Thus, it is the stand of the petitioners that two posts reserved for Ex-servicemen could not be reserved for them and are required to be filled up from amongst the General category candidates on the basis of merit.

3. It is argued that some of the petitioners have been declared ineligible for the reason that they have not obtained 40% marks in the written examination to be eligible for interview. It is argued that they have missed the cut-off mark limit with nominal marks, thus the petitioners should be called for viva voce either by relaxation of such condition or by giving grace marks. Some of the petitioners have sought re-evaluation of the answer-sheets as well.

4. It is also contended that obtaining of such marks to become eligible for appearing in the viva voce is not a condition in the Rules. Therefore, such condition in the advertisement which is not based upon statutory Rules is not enforceable in law.

5. It is also argued that since no candidate from Physically Handicapped category has qualified, the post reserved for the Physically Handicapped category should in terms of the conditions of the advertisement be filled up from amongst the General category candidate. It is also argued that even if the instructions of Punjab Government dated 02.05.1997 providing that the post reserved for Physically Handicapped persons can be de-reserved only after three subsequent advertisements, but such clause cannot be enforced as there is no assertion on behalf of the respondents that three advertisements have not been issued and, thus, the condition of de-reservation of the vacancy in the advertisement cannot be said to be illegal. At this stage, condition No.7 of the Instructions dated 02.05.1997 needs to be extracted. The same is as under:

“7. If a vacancy reserved for the handicapped persons is not filled, the reservation shall be carried over for a period of upto three recruitment years. Any recruitment of the physically handicapped candidates will first be counted against the additional quota brought from previous years if any, in their chronological order. If such candidates are not available for all the vacancies, the other vacancies carried forwarded should be filled first and the comparatively later vacancies carried forward.”

6. It is also argued that in terms of the Supreme Court judgments in Brij Mohan Lal Vs. Union of India & others AIR 2002 SC 2096 2002 Indlaw SC 309 (hereinafter referred to as ‘Brij Mohal Lal -I’) and Brij Mohan Lal Vs. Union of India & others (2012) 6 SCC 502 2002 Indlaw SC 309 (hereinafter referred to as ‘Brij Mohal Lal -II 2012 Indlaw SC 319’), the officers manning the Fast Track Courts have to be absorbed by creating superannuary posts and cannot be absorbed against the cadre posts. Therefore, the two posts of General category granted to the Officers earlier manning the Fast Track Courts are not sustainable in law and such posts are required to be filled up on the basis of merit prepared.

7. Mr. Rajiv Atma Ram has raised another argument that the services of Ms. Praveen Bali, a Scheduled Castes candidate, appointed against the General category post, have been terminated during probation period, therefore, the vacancy so caused is required to be filled up from amongst the General category candidates on the basis of merit in the waiting list.

8. It is also argued that in terms of Malik Mazhar Sultan & another Vs. U.P.Public Service Commission & others (2008) 17 SCC 703 2007 Indlaw SC 1662, while issuing the advertisement for filling up 21 posts of Punjab Superior Judicial Services, the High Court was not taken into consideration the anticipated vacancies. Had the anticipated vacancies taken into consideration, the General category candidates could have been appointed against such vacancies. Therefore, the action of the respondents in calculating the number of vacancies is irregular and has cause injustice to the petitioners.

5. In reply, on behalf of the respondents, it is submitted that the expression ‘State Government’ in Section 2(h) of the Act is contextual definition and that it refers to the department made responsible to implement the provisions of the Act. Section 5 of the Act empowers the State Government to issue notification in respect of the candidates from the backward class. The State Government as defined in Section 2(h) of the Act refers to the such powers of the State Government and not the mandate of the Statute to reserve posts in all departments of the State Governments, Local Authority; or any Statutory Authority constituted under any State law; Board and Corporations in which State has control. The reservations are mandatory in all establishments in terms of Section 4 of the Act, whereas, the de-reservation is again prohibited in all establishments in terms of Section 7 of the Act.

6. It is pointed out that the horizontal reservation for Exservicemen i.e. one for General category and one for Backward Classes category was legally not permissible in terms of the Rules, therefore, two posts reserved for Ex-servicemen were ordered to be filled up from amongst one General category and one Backward Class candidates for which such posts were reserved from amongst the ex-servicemen category.

7. It is argued that the condition in the notification that a candidate should obtain 40% marks in each subject before, one is called for viva-voce or 45% marks, apart from condition of obtaining aggregate marks, to be eligible before appointment is a condition not contrary to the Rules. It is condition to ensure that only meritorious candidates alone are appointed to the post. Still further, the Petitioners participated in the selection process knowing fully well such condition; therefore they are estopped to challenge such condition at this stage. It is argued that the condition is the Rules of obtaining minimum marks cannot be relaxed or grace marks cannot be granted more so in competitive examinations. The relevant extract from the Rules read as under:

“7. Method of appointment – xx xx

(2) The direct appointment to the Service shall be made by the Governor on the recommendations of the High Court from amongst the eligible advocates on the basis of the written test and viva-voce conducted by the High Court.

xx xx xx”

“11. Test for direct appointment – (1) The High Court shall, before making recommendations to the Governor, invite applications by advertisement and may required the applicants to give such particulars as it may prescribe and may further hold written examination test and vivavoce for appointment under rule 7, in the following manner, namely:-

(i) Written Test 750 marks; and

(ii) Viva-Voce 250 marks.”

8. It is contended, relying upon the averments made in CWP No.19033 of 2008, that in terms of Government’s instructions dated 02.05.1997, if a vacancy reserved for Physically Handicapped category is not filled up, the reservation shall be carried over for a period up to 3 recruitment years. It is averred that vacancy in the Physically Handicapped category was, in fact, not converted into General category. It is also contended that conversion of post meant for Physically Handicapped category to General category is an enabling provision and is not mandatory.

9. Therefore, even if there is no specific assertion that the Physically Handicapped category was filled or not filled in for the last three recruitment years, it will not confer any right to the petitioners to seek filling up of such post from amongst the General category candidates. Since none qualified in the categories of Scheduled Castes or a Physically Handicapped, such posts were carry forward for the next selection process.

10. The candidates from the General category including Ms. Praveen Bali, a Scheduled Caste candidate, who secured more marks than the last General category candidate, were appointed against 10 advertised vacancies meant for General Category. The additional vacancies thus available on account of improper reservation for Ex-servicemen, was utilized for absorbing one Officer, who was manning Fast Track Court.

11. Another General category vacancy became available due to elevation of one member of the Superior Judicial Service as Judge of this Court. Such vacancy was utilized by appointing another Officer, who was manning Fast Track Court. It is, thus, contended that 10 General category candidates on the basis of merit have been appointed as Members of the Punjab Superior Judicial Services, two Backward Classes candidates and two Officers against the direct recruit General category posts have been absorbed, who were earlier manning Fast Track Courts. It is argued that the judgments in Brij Mohan Lal cases (supra) mandate the consideration of officers appointed to man Fast Track Courts for regular appointment. Such officers can be absorbed against direct recruitment posts alone. The petitioners have no right to seek appointment against any post. The decision to fill post has to be of the employer in accordance with Rules.

12. It is argued that post falling vacant after termination of Ms. Praveen Bali cannot be filled up on the basis of merit prepared as such post was occupied with her appointment. The termination after almost two years of her appointment does not confer any right on the Petitioners to seek appointment against such vacancy.

13. We have heard learned counsel for the parties at length and with their assistance gone through the judgments referred to by them. The primary issue, which is common in all the writ petitions, is whether the Act provides for reservation for Scheduled Castes and Backward Classes in the Punjab Superior Judicial Service being an establishment of the State Government.

14. Article 1(2) of theConstitution provides that the States and the territories thereof shall be as specified in the First Schedule. In the First Schedule, Punjab is one of the States. As per Article 12 of theConstitution, the expression ‘State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Therefore, the ‘State’, which is recognized for the purposes of Constitution, is State of Punjab, which includes its numerous Departments. Section 2 of the Act states that unless the context otherwise requires, the definitions of the expressions as mentioned therein shall be as given in the said section. Section 2(c) of the Act defines ‘establishment’ to mean any office of the State Government, Local Authority; or any Statutory Authority constituted under any State law; Board and Corporations in which State has control. It does not refer to one single office. It even includes Boards and Corporations over which, the State has control. The definition of the establishment is in widest possible so as to include all departments, including Boards, Corporations and the Authorities created under a Statue. It does not state that the reservation shall be only in the Department of Welfare of Scheduled Castes and Backward Classes. The contextual interpretation of clause (c) would include all offices of the State Government, which will include the Punjab Superior Judicial Services as well.

15. Section 2(h) defining ‘State Government’ to mean Government of the State of Punjab in the Department of Welfare of Scheduled Castes and Backward Classes, is in the context of Section 5 of the Act in respect of the notifying Backward Classes. The reservations are mandatory in all establishments in terms of Section 4 of the Act, whereas, the de-reservation is again prohibited in all establishments in terms of Section 7 of the Act. Therefore, the definition of ‘State Government’ in Section 2 (h) cannot be read as part of Section 2 (c) of the Act defining ‘establishment’. It is the duty of Court to construe a statute in a manner so as to suppress the mischief and advance the remedy. The argument raised by the counsel for the petitioner(s) is absurd leads to illogical results and cannot be accepted. Reservation cannot be and is not meant to be only in the Department of Welfare of Scheduled Castes and Backward Classes.

16. Therefore, we are unable to accept the argument raised. In fact the similar provisions of theConstitution; the Central and State Statues has examined in few cases. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & others (1998) 8 SCC 1 1998 Indlaw SC 13, the Supreme Court observed as under:

“28. Now, the principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, similar to the words used in the present case, namely “unless there is anything repugnant in the subject or context”. Thus there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely “unless there is anything repugnant in the subject or context”. In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words “under those circumstances” .

(see Vanguard Fire and General Insurance Co. Ltd. v. Fraser & Ross AIR 1960 SC 971 1960 Indlaw SC 167)

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30. Since “Tribunal” is defined in Section 2 which, in its opening part, uses the phrase “Unless the context otherwise requires”, the definition, obviously, cannot be read in isolation. The phrase “Unless the context otherwise requires” is meant to prevent a person from falling into the whirlpool of “definitions” and not to look to other provisions of the Act which, necessarily, has to be done as the meaning ascribed to a “definition” can be adopted only if the context does not otherwise require.”

17. Therefore, we find that the expression “State Government” appearing in Section 2(c) and Section 2(h) of the Act, is required to be interpreted keeping in view the object of each of such clauses and in the context in which such expressions are used. Therefore, the reservation is not limited to one Department of the State Government.

18. There is another angle to examine the argument raised.

19. Section 13 of the Act contemplates that the provisions of this Act or Rules made there under shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force, or any judgment, decree, order or decision of any Court or any authority. If the argument of the petitioners is to be accepted then the reservation under the Act is contemplated only for the Department of Welfare of Scheduled Castes and Backward Classes. Therefore, the reservations provided by the State Government in exercise of its executive power would stand in respect of all other departments. Thus, even in the absence of the Act, the reservations of the posts are contemplated under the circulars issued. In view thereof, we cannot accept the argument raised by the learned counsel for the petitioners that the reservation is only contemplated in Department of Welfare of Scheduled Castes and Backward Classes. In fact, Department of Welfare of Scheduled Castes and Backward Classes is the relevant department of the State Government for implementing the provisions of the Act and not for the purposes of the reservation.

20. The reservation for the Ex-servicemen in the Superior Judicial Services is not provided in the Punjab Recruitment of Ex-servicemen Rules, 1982. Therefore, the reservation for Ex-servicemen in the service, in question, is not legally permissible. Even after such illegal reservation, we need to examine, as to whether, the action of the respondents to fill up posts from amongst the General Category and the backward Category is proper. The reservation for ex-servicemen was horizontal; one post each reserved for general category and backward class. Once, the reservation for ex-servicemen was not contemplated or is illegal, the posts are required to be filled up from amongst the category for which such posts were meant from even amongst the ex-servicemen. Therefore, such posts were rightly filled up from amongst the General Category and Backward Class candidates.

21. The argument that condition of obtaining 40% marks to appear in the viva voce is excessive for the reserved categories such as Scheduled Castes, Backward Classes and Physically Challenged is devoid of any merit. The condition of obtaining 40% marks in the written examination has been applied to all categories and was known to all the petitioners, who appeared in the written examination. They had not disputed such condition before appearing in the written examination. They have taken a chance and having failed to qualify, have sought to dispute such condition. The petitioners are estopped to challenge such condition by way of the writ petitions after the declaration of the result.

22. Still further, the petitioners were aware of such condition in the advertisement, but have appeared in the selection process. Having remained unsuccessful, the petitioners are estopped to challenge such condition. Reference may be made to Full Bench judgment of this Court reported as Gurleen Kaur Vs. State of Punjab, (2009) 3 RCR (Civil) 324, wherein it was observed as under:

“207. ….Since the aforesaid precondition for eligibility was depicted in the prospectus itself, and since all the petitioners applied for admission under the Sikh minority community quota, without raising any contest or protest against the aforesaid precondition, they cannot now be allowed to contest the validity of the same when the entire process of selection is over, after their claim has been rejected on the ground, that they do not fulfil the aforesaid precondition. This contention was advanced during the course of hearing, by Shri Chetan Mittal, Additional Advocate General, Punjab, who inter-alia relied on the judgment rendered by the Supreme Court in Madan Lal v. State of J & K, 1995 (2) SCT 880 : 1995 (3) SCC 486 1995 Indlaw SC 2120, wherein the Apex Court held as under:-

“Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Upto this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285: AIR 1986 SC 1043 1986 Indlaw SC 280, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

208. Reliance was also placed on the judgment rendered by a Full Bench of the Madras High Court in Dr. R. Murali v. Dr. R. Kamalakkannan, 2000 (2) SCT 371 1999 Indlaw MAD 396, wherein the question posed in paragraph 36, was to the following effect:-

“36. Learned counsel Mr. C. Selvaraj submitted that fixation of quota is in the nature of concession and writ petitioners have with open eyes applied for admission on the basis of prospectus and also have written examination are incompetent to challenge that policy, once they were not selected. Counsel submitted that principle of estoppel bars writ petitioners from challenging the same.”

209. After referring to various judgments of the Apex Court, including Kumari Chitra Ghosh v. Union of India, (1969) 2 SCC 228 : AIR 1970 SC 35 1969 Indlaw SC 525, State of U.P. v. Pradip Tandon, (1975) 1 SCC 267 : AIR 1975 SC 5631974 Indlaw SC 237, Om Parkash Shukla v. Akhilesh Kumar Shukla, 1986 SCC (Supp) 285 1986 Indlaw SC 280, Dinesh Kumar v. Moti Lal Nehru Medical College, Allahabad, (1986) 3 SCC 727 : AIR 1986 SC 1877 1986 Indlaw SC 178, Mohan Kumar Singhania v. Union of India, 1992 (1) SCT 546 : 1992 Supp (1) SCC 594 : AIR 1992 SC 1 1991 Indlaw SC 814, Dr. Preeti Srivastava v. State of Madhya, 1994 (4) SCT 133 (SC), Ritesh R. Sah v. Y.L. Yamul, 1996 (2) SCT 524. (1996) 3 SCC 253 : AIR 1996 SC 1378 1996 Indlaw SC 560, Union of India v. N. Chanderasekaran, 1998 (1) SCT 631: 1998 (3) SCC 694 1998 Indlaw SC 1942, the Full Bench in paragraph 55 answered the question by holding that the “writ petitioners are not entitled to challenge the selection process after having participated in the written examination on the principle of estoppel.” Reliance was also placed on a judgment rendered by a Division Bench of this Court in Yoginder Singh Yadav v. State of Haryana, 2002 (2) SCT 281, wherein it was, inter-alia, held as under:-

“In the circumstances, the petitioners appear to have raised grievance to assail the result of the entrance test only when they did not find the result favourable to them. It is well settled that a candidate who has submitted to the selection process and has participated and was considered cannot challenge the same if subsequently the result of the selection is not favourable to him. It has been so held in the decision of the Supreme Court in Madan Lal v. State of J & K, (1995) 3 SCC 486 : AIR 1995 SC 1088 1995 Indlaw SC 2120 and Mohan Lal Aggarwal v. Bhubaneswari Prasad Mishra, JT 2001 (9) SC 21 2001 Indlaw SC 20566.”

210. We are in agreement with the view expressed by Shri Chetan Mittal, Advocate. We are satisfied that it is not open to the petitioners to raise the instant issue at this stage, as they acquiesced to the precondition for eligibility under the Sikh minority community quota. It does not lie now in their mouth to raise a challenge thereto, having been found unsuccessful.”

23. We do not find any merit in the fourth argument that the condition of eligibility to appear in the viva voce is not part of the Rules, therefore, the advertisement stipulating such condition is illegal. The Punjab Superior Judicial Services Rules do not contemplate the qualifying marks to be eligible to appear in the vivo voce. the Rules can be supplemented by executive instructions. The law prohibits supplanting of the Rules by executive instructions. Reference may be made to Sant Ram Sharma Vs. State of Rajasthan, AIR 1967 SC 1910 1967 Indlaw SC 234, where the Constitutional Bench held to the following effect:

“7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the Rules are silent on any particular point Government can fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed” .

24. Later, in a judgment reported as District Registrar Vs. M.B. Koyakutty, (1979) 2 SCC 150 1979 Indlaw SC 272, the Court held to the following effect:

“22. There can be no quarrel with the proposition that if the statutory rules framed by the Governor or any law enacted by the State Legislature under Article 309 is silent on any particular point, the Government can fill up that gap and supplement the rule by issuing administrative instructions not inconsistent with the statutory provisions already framed or enacted. The Executive instructions in order to be valid must run subservient to the statutory provisions. In the instant case, however, it could not be said that there was a gap or a void in the statutory provisions in the matter of promotion from the cadre of Lower Division Clerks to that of Upper Division Clerks.”

25. In view of the settled legal principles, the condition in the advertisement, which is not contrary to the Rules, cannot be said to be illegal and un-enforceable.

26. In respect of next argument, though the notification Annuexre P-1 contains a clause that if no candidate from Handicapped Challenged category is found suitable, the post shall be filled up from amongst the General category, but such clause is contrary to the instructions dated 02.05.1997, which contemplate that the post reserved for Physically Challenged category can be de-reserved only after three recruitment years.

27. In fact, 3% of the posts are required to be reserved for Physically Challenged person as provided under Section 3 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 36 of the said Act provides that the unfilled vacancies shall be carried forward in the manner prescribed. Since the reservation for Physically Challenged person is to give effect to a Statute, the same could not be de-reserved only because in that particular recruitment year, no candidate from the Physically Challenged category was available. Though there is no categorical assertion that this was not the last of the three recruitment years to fill up the vacancies meant for Physically Challenged category, but the fact remains that there is not right to the petitioners to claim de-reservation of the vacancies. Even if, no candidate from Physically Challenged category is available, a competent authority is well within its jurisdiction not to fill up the said post from amongst the General category candidate. The de-reservation of the vacancy is enable provision on which the employer is required to take decision. A candidate has no right to seek conversion of a post of reserved category to a General category. The posts advertised for General category having been filled, the petitioners cannot claim that a post reserved for Physically Challenged category should be de-reserved and also given to a General category candidate.

28. The next argument that two posts of General category (one on account of wrong reservation for Ex-servicemen General category candidate and another on account of vacancy caused by the elevation of one of the Members of Superior Judicial Services as Judge of this Court) could not have been granted to the Officers manning Fast Track Courts is again without any merit. In Brij Mohal Lal -II case2012 Indlaw SC 319 (supra), there is no direction that the State Government shall create superannuary posts. The direction was to absorb them in the regular cadre. It was held to the following effect:

“207.9. All the persons who have been appointed by way of direct recruitment from the Bar as Judges to preside over FTCs under the FTC Scheme shall be entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective States only in the following manner:

(a) The direct recruits to FTCs who opt for regularisation shall take a written examination to be conducted by the High Courts of the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges.

(b) Thereafter, they shall be subjected to an interview by a Selection Committee consisting of the Chief Justice and four senior most Judges of that High Court.

(c) There shall be 150 marks for the written examination and 100 marks for the interview. The qualifying marks shall be 40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The examination and interview shall be held in accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services.

(d) Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks.

(e) Needless to point out that this examination and interview should be conducted by the respective High Courts keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the country by administering justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases.

(f) The candidates who qualify the written examination and obtain consolidated percentage as afore indicated shall be appointed to the post of Additional District Judge in the regular cadre of the State.

(g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected.

(h) All sitting and/or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age.” (Emphasis Supplied)

29. In view thereof, the officers manning the Fast Track Courts are required to be absorbed in the regular cadre in manner prescribed by the judgment in Brij Mohan Lal – II case 2012 Indlaw SC 319 (supra). It is only in the event of non availability of regular posts, the State was to create additional posts for such officers. Therefore, the officers have been rightly absorbed against the direct recruit posts available for General category. In fact, the absorption of the fast track officers against the direct recruit quota in the State of Haryana has been upheld by a Division Bench of this Court in a judgment dated 18.05.2010 rendered in CWP No.9157 of 2008 titled “Keshav Kaushik v. State of Haryana 2010 Indlaw PNH 1555”. The appeal against the said part of the order has been dismissed by the Supreme Court vide judgment reported as Deepak Aggarwal Vs. Keshav Kaushik (2013) 5 SCC 277 2013 Indlaw SC 31. The officers in the States of Punjab and Haryana were absorbed in similar manner in the common process.

30. Another argument raised by Mr. Rajiv Atma Ram that a General category post has become available due to the termination of Ms. Praveen Bali is required to be filled up in order of merit is again misconceived. The services of Ms. Praveen Bali appointed against General category post came to be terminated on account of unsatisfactory completion of probationary period. The resultant vacancy cannot be filled up on the basis of selection in which she was selected. In State of Punjab Vs. Raghbir Chand Sharma & another (2002) 1 SCC 113 2001 Indlaw SC 138, the Supreme Court was considering a case, where a candidate resigned after joining. It was held that after the joining of candidate, the panel ceased to exist and has outlived its utility. It was held to the following effect:

“4. ….As rightly contended for the appellant State, the notification issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but on his acceptance of offer came to be appointed and it was only subsequently that he came to resign. With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently.”

31. Later in Rakhi Ray & others Vs. High Court of Delhi & others (2010) 2 SCC 637 2010 Indlaw SC 78, which deals with appointment of Superior Judicial Services, the Hon’ble Supreme Court held that any appointment made beyond the number of vacancies advertised is without jurisdiction and violative of Articles 14 and 16(1) of the Constitution of Indiaand, thus, a nullity, in-executable and unenforceable in law. It is held that the waiting list etc. cannot be used as a reservoir to fill up the vacancy which comes into existence after the issuance of notification/advertisement. It observed as under:

“12. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more. 13. In the instant case, as 13 vacancies of the general category had been advertised and filled up, the selection process so far as the general category candidates is concerned, stood exhausted and the unexhausted select list is meant only to be consigned to record room.”

32. After considering the said judgments, this Court in LPA No.1903 of 2011 titled ‘Abhishek Goyal & others Vs. State of Haryana & another 2012 Indlaw SCO 1273’ decided on 09.01.2012 held to the following effect: “In the present case, the names of the appellants appear at Sr.No.42 onwards. As against 28 vacancies advertised, 40 candidates have been appointed out of which 05 have resigned or not joined. Therefore, the candidates much more than the vacancies advertised already have been permitted to join. The select list stands exhausted with the joining of the candidates. The resignation of few candidates after their joining, does not entitle a waiting list candidate to claim appointment. In view of the said fact, the appellants cannot claim any legal right in the posts advertised in the year 2007. The appellants cannot claim any right of appointment in respect of vacancies which arose after advertisement or in respect of additional posts created after advertisement.”

33. In view of the aforesaid judgments, the post advertised stood filled up with the joining of Ms. Praveen Bali. The subsequent termination of services will not give rise to any right of appointment to the candidates in the waiting list, but such resultant post is required to be filled up in the subsequent selection process in accordance with law.

34. The last of the arguments is that the High Court has not taken into consideration anticipated vacancies while issuing advertisement for filling up 21 posts of Punjab Superior Judicial Services. Such argument has been considered and negated by this Court in CWP No.14467 of 2011 titled “Mayank Khosla & others Vs. State of Punjab & others” decided on 28.03.2012, wherein relying upon State of Haryana Vs. Subash Chander Marwaha (1974) 3 SCC 220 1973 Indlaw SC 150, S.S.Balu Vs. State of Kerala (2009) 2 SCC 479 2009 Indlaw SC 29 and State of M.P. Vs. Sanjay Kumar Pathak (2008) 1 SCC 456 2007 Indlaw SC 1592, it was held to the following effect:

“In view of the above judgments, the petitioners cannot claim any right of appointment relying upon Rule 8 of the Rules, when the advertised vacancies stand filled up. The decision is of the employer as to how many seats are filled up. The petitioners cannot seek any mandamus to seek appointments against the posts not advertised. Such Rule empowers the employer to advertise anticipated vacancies but no right accrues to a candidate only for the reason, such vacancies have not been advertised.”

35. In view of the above discussions, we do not find any merit in the present set of writ petitions.

36. The same are dismissed.

Petitions dismissed