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Judgment
Deepak Gupta, J.—These two writ petitions are being disposed of by a common judgement since identical question of facts and law are involved. Both the petitioners being eligible, appeared in the test for the posts of Civil Judge (Junior Division) conducted in the year 2010 by the H.P. Public Service Commission. Their claim is that the vacancies are available for general category candidates but they have wrongly not been offered appointment. They consequently pray that the respondents be directed to offer them appointment as Civil Judge (Jr. Division).
The main issue is for how long the reserved post can be carried forward and what will happen if no candidate from the reserved category are available. The practice being originally followed was that even if sufficient number of reserved category candidates were not available the reserved posts were carried forward and the posts were not filled in. One Amardeep Singh had filed two writ petitions in this Court. He appeared in the test which was conducted in the year 2007. He was selected but was not appointed since according to the State there was no vacancy in the general category. Both the writ petitions were decided by a Division Bench of this Court on 17.09.2009 and it was held as follows:-
From the aforesaid discussion it is abundantly clear that even in the year 2007 when advertisement No. IV/2007 was issued there were more than three vacancies falling to the share of general candidates. In fact all the posts which were advertised in the category of other backward classes had been carried forward for more than three years and should have been de-reserved. The petitioner would have been therefore entitled to be appointed.
Thereafter this Court directed that the appointment be offered to the petitioner alongwith the candidates who had qualified in the year 2009. This was done since the judgement was delivered on 17.09.2009. It was further ordered that consequently one post would be deducted from the category of OBCs in this recruitment year i.e. 2009. This Court further held that the seats of OBC can be carried forward for three recruitment years and no further and that the seats falling to the category of OBC for the year 2009 shall be reduced by deducting the seats carried forward for more than three years and selections made from the general category candidates, if found suitable. The High Court was also requested to take up the matter with the State Government for fixing the appropriate time cap in relation to carry forward vacancies. Consequent to the last direction H.P. Judicial Service Rules, 2004 (hereinafter referred to as the rules) were amended vide notification dated 26.08.2010 and the following proviso before the existing proviso of Rule 5 was added:-
Provided further that a time cap of three recruitment years shall apply for filling up backlog/carry forward vacancy against reserved roster point for schedule castes/schedule Tribes/Other Backward Classes and while doing so in the 3rd recruitment year to fill up a particular carry forward/backlog vacancy, it shall be notified that in case suitable candidate from the category to which the post is reserved is not available then the vacancy will be treated as un-reserved and filled in as unreserved vacancy.
Provided further that if backlog/ carry forward reserved vacancy is filled by unreserved candidate in the 3rd successive recruitment year, such candidate shall temporarily occupy the roster point reserved for the category for which carry forward recruitment process was followed and such candidate/appointee shall vacate the reserved roster point and occupy the unreserved roster point as soon as such unreserved vacancy is available in the post based roster and that the roster point so vacated by unreserved candidate shall be advertised as reserved vacancy meant for such roster point category.
Thereafter one Sandeep Singh Sihag also filed CWP No. 3474 of 2009 praying that he being a general category candidate be appointed against the general category post. A Division Bench of this Court vide its judgement dated 15.3.2010 following the judgement in Amardeep Singh''s case directed that petitioner Sandeep Singh Sihag be appointed. It was further clarified by this Court that Shri Kapil Sharma a general category candidate would be accommodated against the roster point No. 25 belonging to the OBC category. Further it was directed that the appointment of Sh. Amardeep Singh general category candidate would be against roster point No. 33. It was also directed that the next slot available to OBCs category was slot No. 42 against which the writ petitioner Sandeep Singh Sihag was ordered to be appointed. It, however, appears that before the Court it was urged that the cadre strength of Civil Judge (Jr. Division) is 49 whereas in fact it was 54 at the relevant time.
The matter did not end here. On 21.4.2010 three other writ petitions being CWP Nos.3828 of 2009, 3876 and 3877 of 2009 filed by Sh. Hakikat, Sh. Aslam Beg and Ms. Akshi Sharma were also decided by another Division Bench. In these cases it was not disputed that the cadre strength of Civil Judges (Jr. Division) was 53 though, in fact at the relevant time it was 54. Be that as it may, this Court reiterating its directions in Sandeep Singh Sihag''s case (supra) directed the State to fill up the three vacancies. It was, however, made clear that this judgement was in its peculiar facts and circumstances and would not be treated as precedent. The Court clearly held that four posts were vacant i.e. roster point No. 39 which was otherwise meant for scheduled tribes candidate, roster point No. 50 meant for OBCs and roster point Nos.51 and 52, which were required to be filled up from the general category. Pursuant to the directions of this Court in this petition Sh. Hakikat, general category candidate, was appointed against roster point No. 39, Ms. Akshi Sharma was appointed against roster point No. 51 belonging to the general category and Sh. Aslam Beg was appointed against roster point No. 52. Thereafter, recruitment process took place in the year 2010 in which the petitioner also participated. In this advertisement as corrected later on by the corrigendum eight clear cut vacancies, 4 falling to the general category, 2 falling to the OBCs category, 1 falling to the Scheduled Castes and 1 to the Scheduled Tribes were advertised. 5 anticipated vacancies, 3 falling to the unreserved category and 2 to the Scheduled castes categories were advertised. Against the 7 vacancies of the general category both clear cut and anticipated 4 candidates of general category who were offered appointments on the basis of selection process were Ms. Neha Sharma, Ms. Manisha Goel, Ms. Upasana Sharma and Mr. Niranjan Singh. Ms. Neha Sharma was appointed against roster point No. 13 belonging to the unreserved category which point was vacated by Ms. Parveen Chauhan on her promotion as Civil Judge (Sr. Division) on 30.4.2010. Ms. Manisha Goel was appointed against roster point No. 4 belonging to the general category on promotion of Sh. Vivek Sharma on 21.9.2010. Ms. Upasana Sharma was appointed against roster point No. 10 which was vacated by Sh. Avinash Chander on promotion on 21.10.2010. Mr. Niranjan Singh was appointed against roster point No. 12 belonging to unreserved category vacated by Mr. Rajesh Chauhan on promotion on 20.10.2010.
Both the petitioners had earlier filed two writ petitions being CWP No. 3135 of 2011 and CWP No. 8563 of 2010 respectively. Niranjan Singh, referred to above, had filed CWP No. 3255 of 2011. In this case it was correctly recorded that the cadre strength as on date was 54 vacancies. All these three petitions were disposed of vide judgement dated 3.9.2011. It was directed that Niranjan Singh be offered appointment since he was next in merit. It was further directed that since steps for recruitment for the year 2011 had already been initiated the High Court should intimate all the available vacancies to the H.P. Public Service Commission before 17.8.2011 and that steps should be taken for filling up these vacancies by 29.8.2011. The stand of the High Court is that pursuant to these directions it conveyed the vacancy position to the State and the Public Service Commission. It is pointed out that vide notification dated 26.8.2010 the aforesaid two provisos were added in the rules and as per these provisos though there is a time cap of three recruitment years for filling up the backlog/carried forward vacancies and in the 3rd year if no suitable candidates from the reserved category is available then the vacancy will be treated as unreserved. However, the next proviso lays down that if the backlog/carry forward reserved vacancy is filled up by an unreserved candidate in the 3rd successive recruitment year such candidate shall temporarily occupy the roster point reserved for the category for which carry forward recruitment process was followed and such candidate shall vacate the reserved roster point and occupy the unreserved roster point as soon as such unreserved vacancy is available on the post based roster. Thereafter, the roster point so vacated by the unreserved candidate shall again be advertised as reserved vacancy. The natural corollary is that it would be again carried forward for three years. Once the post which has been carried forward for three years is filled up by a general category candidate it does not mean that for all times to come the post will be filled in only from general category candidates because that would defeat the purpose of reservation. The second proviso clearly indicates that as soon as the vacancy in general category is available then the person appointed against the reserved category shall be adjusted against the roster point vacated in the general point category and the reserved point shall again be advertised and now can again be carried forward for three years.
The next contention of the petitioners is that every available post has to be filled in cannot be accepted on its face value.
In Malik Mazhar Sultan (3) and another vs. Uttar Pradesh Public Service Commission and others (2008) 17 SCC 703 the apex Court not only laid down the guidelines and the time frame for holding the test but clearly laid down that all appointment letters must be issued by the competent authority by 1st December and the last date of joining is 2nd January of the falling year. In para 14 it has been further ordered that the select list prepared for all categories of officials shall be valid till the next select list is published.
However, in Rakhi Ray and Others Vs. The High Court of Delhi and Others, the Apex Court explained the decision in Malik Mazhar Sultan''s case and held that mere inclusion of the name in the select list/panel does not create an indefeasible right of appointment of a candidate. In Rakhi Ray''s case the Apex Court decided various issues which are relevant for this case also. After discussing the entire law the Apex Court held that in case advertisement was not in accordance with the actual position then the appellant should have challenged the advertisement itself and could not later be permitted to challenge the same. Reference may be made to Paras 11, 21 and 22 of the judgement wherein it was held as follows:-
In Mukul Saikia and Others Vs. State of Assam and Others, , this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The Select List "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of Select List had expired as soon as the number of posts advertised are filled up, therefore, the appointments beyond the number of posts advertised would amount to filling up future vacancies" and said course is impermissible in law.
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The appointments had to be made in view of the provisions of the Delhi Higher Judicial Service Rules, 1970. The said rules provide for advertisement of the vacancies after being determined. The rules further provide for implementation of reservation policies in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. As the reservation policy is to be implemented, a number of vacancies to be filled up is to be determined, otherwise it would not be possible to implement the reservation policy at all. Thus, in view of the above, the question of taking into consideration the anticipated vacancies, as per the judgment in Malik Mazhar Sultan (supra), which had not been determined in view of the existing statutory rules could not arise.
In view of above, we do not find any force in the submissions that the High Court could have filled vacancies over and above the vacancies advertised on 19.5.2007, as per the directions issued by this Court in Malik Mazhar Sultan''s case (supra). More so, no explanation could be furnished by Shri Ranjit Kumar, learned senior counsel for the appellants as to why the appellants could not challenge the advertisement itself, if it was not in conformity with the directions issued by this court in the said case.
The Apex Court further held as follows:-
A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment.
In Arup Das and others vs. State of Assam and others (2012) 5 SCC 559, the Apex Court clearly held that it was impermissible to fill in posts in excess of those advertised. It would be pertinent to refer the following observations of the Apex Court, which read as follows:-
It is well established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up.
Following the judgement in Rakhi Ray''s case (supra) a Division Bench of the Punjab and Haryana High Court in Mayank Khosla and others vs. State of Punjab and others 2012 (3) SLR 672 (Pb. & Hry.) held that where the advertised vacancy had been filled up the petitioner cannot claim any right against anticipated vacancies. In the present case we find that all the advertised vacancies in the general category were filled up.
At this stage it would be appropriate to point out that though the judgment in Rakhi Ray''s case was delivered on 1.2.2010 but was not brought to the notice of this Court when judgement in certain cases were passed. The posts advertised have admittedly been filled up and the main grievance of the petitioner in the writ petition is that on promotion of Shri Gaurav Mahajan one more post became vacant. The stand of the High Court is that Sh. Kapil Sharma was adjusted against roster point No. 25 and now this post has again been made available for the OBCs category. This stand is apparently correct. Therefore, we are of the considered view that there was no general category post which could be made available to the petitioners. In view of the above discussion we are of the view that there is no merit in the petitions, which are accordingly rejected. No order as to costs.