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Service Matter – Whether the petitioners, whose names were included in the select list prepared for recruitment to Punjab Civil Service (Judicial Branch) are entitled to be appointed against the posts which became available due to the resignation of two of the appointees and the unfilled posts of reserved categories is the question which arises for consideration in these petitions filed under Article 32 of the Constitution.= once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointee cannot claim appointment against the posts which subsequently become available. = “At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. 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 fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents.” In view of the above noted legal position, the decision taken by the High Court not to enter the petitioners name in the register to facilitate their appointment against the de-reserved posts or the posts vacated by the general category candidates cannot be faulted, more so because the State Government had already approved fresh recruitment and the Commission issued advertisement for 71 posts including 6 reserved category posts. In the result, the writ petitions are dismissed.

published in http://judis.nic.in/supremecourt/filename=40643
Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 73 OF 2013
Raj Rishi Mehra and others …Petitioners

versus

State of Punjab and another …Respondents
WITH
WRIT PETITION (CIVIL) NO. 77 OF 2013

O R D E R
Whether the petitioners, whose names were included in the select list
prepared for recruitment to Punjab Civil Service (Judicial Branch) are
entitled to be appointed against the posts which became available due to
the resignation of two of the appointees and the unfilled posts of reserved
categories is the question which arises for consideration in these
petitions filed under Article 32 of the Constitution.
The Punjab Public Service Commission (for short, ‘the Commission’)
issued Advertisement No.1 in the year 2011 for holding examination for
recruitment to the Punjab Civil Service (Judicial Branch). The break up of
the posts advertised by the Commission was as under:

| |General |47 | |
| |Scheduled Castes, Punjab.|09 | |
| |Scheduled Castes, |02 | |
| |Ex-servicemen/Lineal | | |
| |Descendent of | | |
| |Ex-servicemen, Punjab. | | |
| |Balmiki/Mazhbi Sikh, |18 |(Backlog 08) |
| |Punjab. | | |
| |Balmiki/Mazhbi Sikhs |04 |(Backlog 02) |
| |ESM/LDESM, Punjab. | | |
| |Backward Classes, Punjab.|09 | |
| |Backward Classes, |03 |(Backlog 01) |
| |Ex-servicemen/Lineal | | |
| |Descendent of | | |
| |Ex-servicemen, Punjab. | | |
| |Ex-servicemen/Lineal |09 |(Backlog 03) |
| |Descendent of | | |
| |Ex-servicemen, Punjab. | | |
| |Physically Handicapped, |04 |(Backlog 02) |
| |Punjab. | | |
| |Freedom Fighter, Punjab. |01 | |
| |Sports Person, Punjab. |04 |(Backlog 02) |
The petitioners, who belong to general category, applied for
recruitment against the general category posts. In the select list prepared
by the Commission, the names of the petitioners were shown at serial Nos.
49, 50, 51, 53 and 54. However, their names were not included in the
register meant for appointment of the selected candidates because 47
candidates, who were placed above them were appointed against the
advertised posts of general category. From the reserved categories, only 27
candidates were selected and they were appointed against the posts
earmarked for their respective categories.
Ms. Mohini (Serial No.31 in the select list), who was appointed
against a general category post, did not join and in her place Ms. Parul
(Serial No.48) was appointed. Shri Rakesh Kumar (Serial No.32), who was
appointed against a general category post, joined the service but resigned
with effect from 16.7.2012. Likewise, Ms. Shikha Thakur (Serial No.35), who
was also appointed against a general category post, resigned with effect
from 2.1.2013 and was relieved on 2.2.2013. The posts vacated by them were
not filled and were included in the advertisement issued in 2012.
In the meanwhile, the petitioners submitted representation dated
26.4.2012 to the Principal Secretary, Home Department, Punjab for de-
reservation of the reserved category posts for facilitating their
appointment. The concerned authority accepted their request and issued
order dated 26.9.2012 for de-reservation of 5 posts. Of these, one post was
from the category of ex-serviceman, two were from the category of
physically handicapped and one was earmarked for sports persons.
Immediately thereafter, the petitioners were sent for medical examination
and all of them were found fit.
The Government of Punjab sent communications to the High Court for
the petitioners’ appointment against the vacant posts but the High Court
did not agree and vide letter dated 10.12.2012, the Registrar General of
the High Court informed the Home Department that the names of the
petitioners cannot be entered in the register.
The petitioners have now sought intervention of this Court for issue
of a mandamus to the High Court to enter their names in the relevant
register and to the State Government to appoint them against the vacant
posts. Their prayer is founded on the assertion that the State Government
is the sole repository of power to deicide whether or not the reserved
category post should be de-reserved and the High Court cannot refuse to
enter their names in the relevant register and deny them appointment
against the de-reserved posts. They have pleaded that on the basis of
examination conducted in 2007, 7 candidates of general category were
appointed against the de-reserved posts and there is no reason for not
giving similar treatment to them. Another plea taken by the petitioners is
that they are entitled to be appointed against the two posts vacated by
Shri Rakesh Kumar and Ms. Shikha Thakur.
The High Court has resisted the writ petitions. In the counter
affidavit filed on its behalf, the rationale of making appointments against
the posts which were de-reserved in 2007 has been spelt out in paragraphs 3
to 10, which read as under:

“3. It is submitted that in the year 2007, the Punjab Public
Service Commission vide Advertisement No. 05 had issued
advertisement for filling up the following vacancies of PCS(JB)
:-

|Sr.No. |Name of the | No. of Posts | |
| |Post/Category | | |
| |General |27 | |
| |Ex-Servicemen, Punjab |3 | |
| |Physically Handicapped |2 | |
| |Punjab | | |
| |Scheduled Castes, Punjab|10 | |
| | |(Out of these 10 | |
| | |posts 50% posts | |
| | |reserved for | |
| | |Balmiki/Mazhbi | |
| | |Sikhs Punjab, if | |
| | |available) | |
| |Scheduled Castes, |3 | |
| |Ex-Servicemen, Punjab | | |
| |Backward Classes, Punjab|5 | |
| |Backward Classes, |1 | |
| |Ex-Servicemen, Punjab | | |
| |Sports Person, Punjab |1 | |
| |Total |52 | |
4. That vide letter dated 5.12.2007 by the Respondent No.2
the names of 42 candidates were recommended for appointment as
PCS(JB), who were selected as a result of examination held in
the year 2007.

5. That the State Government (Respondent No.l) vide its
letter dated 11.1.2008 had requested the respondent No.2 to
enter the names of 24 candidates, who were selected on the basis
of abovesaid examination. The State Government (Respondent No.l)
had not intimated the answering respondent the reasons behind
not filling up the remaining vacancies lying vacant.

6. That under the order dated 17.1.2008 passed by the Hon’ble
the Chief Justice of Punjab and Haryana High Court, the names of
24 candidates were entered in the High Court Register and vide
Respondent No.2’s letter dated 18.1.2008 the State Government
was informed accordingly. The State Government was also
requested to / forward the names of other candidates as per the
recommendation of Respondent No.2 as 37 vacancies were available
for appointment as PCS(JB) officers.

7. That thereafter, the State Government vide its letter
dated 20.2.2008 had forwarded the names of 18 candidates
with the request to enter the names of said candidates in the
High Court Register so that further necessary action be taken.

8. That under the orders dated 25.2.2008 passed by the
Hon’ble the Chief Justice of Punjab and Haryana High Court, the
names of 18 candidates were entered in the High Court Register
and the State Government was informed accordingly vide
Respondent No.2’s letter dated 27.2.2008.

9. That thereafter, Punjab Government vide letter dated
18.03.2008 had intimated the answering Respondent that the
Government has decided to appoint 8 candidates from the waiting
list against the reserve post and requested answering Respondent
to enter the names of these candidates in the High Court
Register.

10. That Under the orders dated 18.3.2008 of Hon’ble the Chief
Justice of Punjab and Haryana High Court, the names of 8
candidates were entered in the High Court Register and the
State Government was informed accordingly vide letter dated
19.3.2008.”

As regards the 2011 advertisement, the stand of the High Court is
that even though the names of the petitioners were included in the waiting
list for a period of one year commencing from 24.3.2012, they cannot claim
appointment against the posts which became available due to resignation of
the two general category candidates and the posts de-reserved by the State
Government vide order dated 26.9.2012. It is also the pleaded case of the
High Court that in the meeting of the Administrative Committee held on
21.1.2013, it was resolved not to make appointments from the waiting list
because the State Government has already accorded approval for fresh
recruitment against 71 posts including 6 reserved category posts.
In a separate affidavit, the State Government has claimed exclusive
privilege to decide the issue of de-reservation of unfilled posts of
reserved categories.
Shri P.S.Patwalia, Senior Advocate and Shri Govind Goel, learned
counsel appearing for the petitioners argued that their clients are
entitled to be appointed against the unfilled posts including those
belonging to reserved categories, which were de-reserved by the State
Government. Shri Patwalia strongly relied upon note dated 24.3.2012
appended to the select list and argued that in view of the decision taken
by the High Court to operate the waiting list, the petitioners cannot be
denied appointment against two posts vacated by the general category
candidates and 5 reserved category posts which were de-reserved by the
State Government. Learned senior counsel pointed out that the petitioners
had filed writ petitions in January, 2013 and argued that they cannot be
denied appointment merely because tenure of the select list ended sometime
in March, 2013. Shri Patwalia and Shri Goel emphasised that if the waiting
list prepared on the basis of examination of 2007 can be operated in the
subsequent years, there is no reason why the select list prepared in 2011
is not being acted upon for making appointment against the vacant posts of
general as well as the reserved categories.
Ms. Indu Malhotra, learned senior counsel appearing for the High
Court argued that the petitioners are not entitled to be appointed against
the vacant posts merely because their names were included in the waiting
list. She submitted that the posts vacated by Shri Rakesh Kumar and Ms.
Shikha Thakur will be deemed to have available in the next recruitment year
and the same cannot be filled by appointing the candidates from the waiting
list. Ms. Malhotra argued that the exercise undertaken in 2007-08 for
filling up the unfilled reserved posts cannot be treated as a precedent for
ordaining the High Court to include the names of the petitioners in the
Register to facilitate their appointment against such posts. Learned
senior counsel submitted that this Court should not issue a mandamus for
filling up the posts which became available due to resignation of Shri
Rakesh Kumar and Ms. Shikha Thakur and the posts which were de-reserved by
the State Government because the Commission has already issued fresh
advertisement.
We have considered the respective arguments. The rationale of making
appointments against the de-reserved posts in 2007-08 is contained in
paragraphs 3 to 10 of the affidavit filed on behalf of the High Court,
which have been extracted hereinabove. In paragraphs 11 to 22 of the
affidavit, which are extracted below, the High Court has explained the
rationale of not following the same course.

“11. That in the year 2011, the Punjab Public Service
Commission vide Advertisement No. 01 had issued advertisement
for filling up the following vacancies of PCS(JB) :-

|Sr.No. |Name of the Post/Category|No.of | |
| | |Posts | |
| |Punjab Civil Services |110 | |
| |(Judicial Branch) | | |
| |General |47 | |
| |Scheduled Castes, Punjab.|09 | |
| |Scheduled Castes, |02 | |
| |Ex-servicemen/Lineal | | |
| |Descendent of | | |
| |Ex-servicemen, Punjab. | | |
| |Balmiki/Mazhbi Sikh, |18 |(Backlog 08) |
| |Punjab. | | |
| |Balmiki/Mazhbi Sikhs |04 |(Backlog 02) |
| |ESM/LDESM, Punjab. | | |
| |Backward Classes, Punjab.|09 | |
| |Backward Classes, |03 |(Backlog 01) |
| |Ex-servicemen/Lineal | | |
| |Descendent of | | |
| |Ex-servicemen, Punjab. | | |
| |Ex-servicemen/Lineal |09 |(Backlog 03) |
| |Descendent of | | |
| |Ex-servicemen, Punjab. | | |
| |Physically Handicapped, |04 |(Backlog 02) |
| |Punjab. | | |
| |Freedom Fighter, Punjab. |01 | |
| |Sports Person, Punjab. |04 |(Backlog 02) |
12 That the Secretary, Punjab Public Service Commission,
Patiala was informed by Respondent No.2 vide letter dated
27.3.2012 that as per the result the Committee of the High Court
has been pleased to resolve that the first 47 candidates from
merit list of General Category, the first 17 candidates from
merit list of Schedule Caste Category (09 vacancies advertised
against this category plus 08 unfilled vacancies of
Balmiki/Mazhbi Sikh Category), the first 09 candidates from
merit list of Backward Class Category, all 07 candidates
appearing in merit list of Balmiki/Mazhbi Sikh
Category, all candidates appearing in the merit list of
Balmiki/Mazbhi Sikh-LDESM Category and Backward Class-LDESM
Category Candidate and the first three candidates appearing in
the merit list of LDESM Category be recommended to be appointed
as Civil Judges (Junior Division)-cum-Judicial Magistrates in
the State of Punjab. 16 candidates next in order of merit
in General Category and 3 candidates next in order of merit in
Backward Class Category shall remain in waiting list for one
year from 24.3.2012. In the event of any vacancy occurring
within one year on account of non-joining or resignation of any
candidate or due to any other unforeseen circumstance, the
resultant shortfall in the advertised vacancies shall be filled
up from the next 16 candidates in order of merit appearing in
General Category in case such vacancies belong to general
category and from amongst the next 03 candidates in order of
merit appearing in Backward Class Category in case such vacancy
is of BC category. He was requested to prepare the consolidated
merit list in accordance with Rule 8 (Part-C) of the Punjab
Civil Service (Judicial Branch) Rules, 1951 and get it published
in the Government Gazette as per provisions of Rule 10(i) of the
said Rules.

13 That the State Government vide its letter dated 15.5.2012
had requested the Respondent No.2 to enter the names of 83
candidates, who were selected as a result of examination
held in the year 2011.

14 That under the orders of the then Hon’ble the Acting Chief
Justice, the names of 83 candidates were entered in the High
Court Register and vide letter dated 24.5.2012 the State
Government was informed accordingly.

15 That the State Government vide its letter dated 29.6.2012
had sought the views of this Court for de-reserving_17 vacancies
of reserve categories.

16 That the above said letter dated 29.6.2012 was
placed before Administrative Committee of the High Court of
Punjab and Haryana in its meeting held on 31.7.2012, wherein it
was resolved that the Government of Punjab be informed that the
High Court of Punjab and Haryana does not agree with the
proposal. However, the advertised vacancies may be filled up
from amongst the candidates in the waiting list as per rules.
Accordingly, vide letter dated 3.8.2012 the State Government was
informed by the Respondent No.2.

17. That thereafter, the State Government vide letter dated
26.9.2012, had intimated that one post of Ex-
serviceman/Lineal Descendent of Ex-Serviceman of Punjab
Category, two posts of physically handicapped (General Category)
and two posts of Sports Persons (General Category) have been de-
reserved.

18. That thereafter, the Under Secretary Home, Department of
Home Affairs and Justice (Judicial-I Branch), Government of
Punjab, Chandigarh vide his letter dated 15.10.2012 has
requested the High Court of Punjab and Haryana to enter the
names of following candidates in the High Court Register under
intimation to the State Government :-
|Sr.No. |Roll No. |Name of the |Category |
| | |Candidate | |
|1. |10643 |Sh.Raj Rishi |General |
| | |Mehra | |
|2. |10623 |Ms.Pukhrajbir |General |
| | |Kaur | |
|3. |10642 |Sh.Raj Kumar |General |
|4. |10375 |Ms.Kanchan Garg |General |
|5. |10592 |Sh.Pawan Bishnoi |General |
19. That the abovesaid matter was placed before Judges in
Administrative Committee meeting held on 5.12.2012, wherein
it was resolved that the request of the Punjab Government is
declined.

20. That accordingly, vide letter dated 10.12.2012, the State
Government was informed that the request dated 3.9.2012 and
15.10.2012 with regard to entering the names of Sh.Munish
Bansal, Sh.Raj Rishi Mehra, Sh.Pukhrajbir Kaur, Sh.Raj Kumar,
Ms.Kanchan Garg and Sh.Pawan Bishnoi has been declined.

21. That the State Government vide letter dated 21.12.2012 had
again requested this Court to enter the names of Sh.Munish
Bansal, Sh.Raj Rishi Mehra, Ms.Pukhrajbir Kaur, Sh.Raj Kumar,
Ms.Kanchan Garg and Sh.Pawan Bishnoi in the High Court Register.

22. That the matter was again placed before Judges in the
Administrative Committee meeting held on 21.1.2013, wherein it
was resolved that the Government of Punjab vide letter dated
3.11.2012 has already approved the recruitment for 71 posts of
PCS(JB) by issuing fresh advertisement and these 71 posts
includes the above mentioned 6 vacancies. The process of
recruitment had already been initiated. Therefore, the
Administrative Committee reiterated its earlier decision dated
5.12.2012.”
It is true that in response to the advertisement issued in 2007,
the State Government and the High Court made appointments from the waiting
list against the posts which were made available by de-reserving the
unfilled posts of reserved categories but that decision cannot be cited as
a binding precedent because the rules regulating the recruitment do not
impose a duty on the appointing authority to make appointment from the
waiting list. That apart, what is of immense significance is that the High
Court has taken a conscious decision not to entertain the request made by
the State Government for filling up the unfilled reserved posts by
appointing the candidates of general category because fresh advertisement
had already been issued.
The question whether the candidates whose names are included in
the waiting list are entitled to be appointed against the unfilled posts as
of right is no longer res integra and must be answered in negative in view
of the judgments of this Court in Union of India v. Ishwar Singh Khatri
1992 Supp (3) SCC 84, Gujarat State Dy. Executive Engineers’ Association v.
State of Gujarat and others 1994 Supp (2) SCC 591, State of Bihar v.
Secretariat Assistant Successful Examinees Union 1986 and others (1994) 1
SCC 126, Prem Singh and others v. Haryana SEB and others 1996) 4 SCC 319,
Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and
others (1996) 1 SCC 283, Surinder Singh and others v. State of Punjab and
another (1997) 8 SCC 488, Madan Lal and others v. State of J&K and others
(1995) 3 SCC 486, Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others
(1998) 3 SCC 45, State of J&K and others v. Sanjeev Kumar and others (2005)
4 SCC 148, State of U.P. and others v. Rajkumar Sharma and others (2006) 3
SCC 330, Ram Avtar Patwari and others v. State of Haryana and others 2007)
10 SCC 94 and Rakhi Ray and others v. High Court of Delhi and others (2010)
2 SCC 637.
In Surinder Singh’s case, this Court observed as under:
“A waiting list prepared in an examination conducted by the
Commission does not furnish a source of recruitment. It is
operative only for the contingency that if any of the selected
candidates does not join then the person from the waiting list
may be pushed up and be appointed in the vacancy so caused or if
there is some extreme exigency the Government may as a matter of
policy decision pick up persons in order of merit from the
waiting list. But the view taken by the High Court that since
the vacancies have not been worked out properly, therefore, the
candidates from the waiting list were liable to be appointed
does not appear to be sound. This practice, may result in
depriving those candidates who become eligible for competing for
the vacancies available in future. If the waiting list in one
examination was to operate as an infinite stock for
appointments, there is a danger that the State Government may
resort to the device of not holding an examination for years
together and pick up candidates from the waiting list as and
when required. The constitutional discipline requires that this
Court should not permit such improper exercise of power which
may result in creating a vested interest and perpetrate waiting
list for the candidates of one examination at the cost of entire
set of fresh candidates either from the open or even from
service
In Rakhi Ray’s case, this Court referred to a number of judicial
precedents and held:

“It is a settled legal proposition that vacancies cannot be
filled up over and above the number of vacancies advertised as
“the recruitment of the candidates in excess of the notified
vacancies is a denial and deprivation of the constitutional
right under Article 14 read with Article 16(1) of the
Constitution”, of those persons who acquired eligibility for the
post in question in accordance with the statutory rules
subsequent to the date of notification of vacancies. Filling up
the vacancies over the notified vacancies is neither permissible
nor desirable, for the reason, that it amounts to “improper
exercise of power and only in a rare and exceptional
circumstance and in emergent situation, such a rule can be
deviated from and such a deviation is permissible only after
adopting policy decision based on some rationale”, otherwise the
exercise would be arbitrary. Filling up of vacancies over the
notified vacancies amounts to filling up of future vacancies and
thus, is not permissible in law.”
In State of Punjab v. Raghbir Chand Sharma (2002) 1 SCC 113, a two
Judge Bench considered the questions as to when the recruitment process can
be said to have come to an end and whether the select list can be operated
qua the posts/vacancies which become available due to resignation of the
existing incumbent and answered the same in negative by making the
following observations:

“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. The circular order
dated 22-3-1957, in our view, relates to select panels prepared
by the Public Service Commission and not a panel of the nature
under consideration. That apart, even as per the circular orders
as also the decision relied upon for the first respondent, no
claim can be asserted and countenanced for appointment after the
expiry of six months. We find no rhyme or reason for such a
claim to be enforced before courts, leave alone there being any
legally protected right in the first respondent to get appointed
to any vacancy arising subsequently, when somebody else was
appointed by the process of promotion taking into account his
experience and needs as well as administrative exigencies.”
In Mukul Saikia v. State of Assam (2009) 1 SCC 386, this Court
held that once the appointments are made against the advertised posts, the
select list gets exhausted and those who are placed below the last
appointee cannot claim appointment against the posts which subsequently
become available. Paragraph 33 of the judgment which contains discussion on
this issue is reproduced below:

“At the outset it should be noticed that the select list
prepared by APSC could be used to fill the notified vacancies
and not future vacancies. If the requisition and advertisement
was only for 27 posts, the State cannot appoint more than the
number of posts advertised, even though APSC had prepared a
select list of 64 candidates. 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
fact that evidently and admittedly the names of the appellants
appeared in the select list dated 17-7-2000 below the persons
who have been appointed on merit against the said 27 vacancies,
and as such they could not have been appointed in excess of the
number of posts advertised as the currency of select list had
expired as soon as the number of posts advertised are filled up,
therefore, appointments beyond the number of posts advertised
would amount to filling up future vacancies meant for direct
candidates in violation of quota rules. Therefore, the
appellants are not entitled to claim any relief for themselves.
The question that remains for consideration is whether there is
any ground for challenging the regularisation of the private
respondents.”
In view of the above noted legal position, the decision taken by the
High Court not to enter the petitioners name in the register to facilitate
their appointment against the de-reserved posts or the posts vacated by the
general category candidates cannot be faulted, more so because the State
Government had already approved fresh recruitment and the Commission issued
advertisement for 71 posts including 6 reserved category posts.
In the result, the writ petitions are dismissed.

…………………….J.
(G.S. SINGHVI)
…………………….J.
(V. GOPALA GOWDA)
New Delhi;
August 13, 2013.

———————–
16

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