Punjab-Haryana High Court
Ashwani Kumar & Ors vs State Of Punjab & Ors on 15 December, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Judgment Reserved on 30.11.2022
Date of Decision: 15.12.2022
Civil Writ Petition No.16059 of 2012 (O&M)
Ashwani Kumar and others ...Petitioners
Versus
State of Punjab and others ..Respondents
2. Civil Writ Petition No.16030 of 2012
Prabhjot Kaur Dhaliwal ...Petitioner
Versus
State of Punjab and others ..Respondents
3. Civil Writ Petition No.8254 of 2014
Vikram Jit ...Petitioner
Versus
State of Punjab and others ..Respondents
4. Civil Writ Petition No.6588 of 2015
Supnandan Deep Uppal ...Petitioner
Versus
State of Punjab and others ..Respondents
5. Civil Writ Petition No.6463 of 2015
Gurtej Singh ...Petitioner
Versus
State of Punjab and others ..Respondents
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CWP No.16059 of 2012 and other connected cases [2]
6. Civil Writ Petition No.11165 of 2018
Jaskeerat Singh Ahir ...Petitioner
Versus
State of Punjab and others ..Respondents
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present: Mr. Gurminder Singh, Senior Advocate with
Mr. J.S. Gill, Advocate, for the petitioners
(in CWP-16059-2012).
Mr. Veneet Sharma, Advocate,
for the petitioner (in CWP-8254-2014).
Mr. Pawan Kumar, Advocate for
Mr. Saurabh Arora, Advocate,
for the petitioner (in CWP-11165-2018).
Ms. Manmohan Kaur Dhaliwal, Advocate,
for the petitioner (in CWP-16030-2012).
Mr. Sarbjeet Singh, Advocate,
for the petitioner (in CWP-6588-2015).
Mr. V.M. Gupta, Addl A.G., Punjab.
Ms. Saigeeta Srivastava, Advocate,
for respondent No.5.
Mr. Rajiv Atgma Ram, Senior Advocate with
Mr. Brijesh Khosla, Advocate,
for respondents No.5 & 8 (in CWP-16059-2012.
Mr. S.S. Swaich, Advocate,
for respondent No.19 (in CWP-16059-2012).
Mr. Vikas Sharma, Advocate,
for respondents No.7 & 36 (in CWP-16059-2012).
Mr. Rakesh Sobti, Advocate,
for respondent No.54 (in CWP-16059-2012).
Mr. Amandeep Singh Manaise, Advocate,
for respondent No.62 (in CWP-16059-2012).
Mr. Ajay Pal Singh Rehan, Advocate,
for respondents No.120 and 172 (in CWP-16059-2012).
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CWP No.16059 of 2012 and other connected cases [3]
Mr. B.S. Patwalia, Advocate,
for respondent No.129 (in CWP-16059-2012).
Mr. Sandeep Jain, Advocate, for respondent No.81.
Mr. J.S. Mehel, Advocate, for respondent No.144.
Mr. Abhijeet Partap, Advocate, for respondent No.153.
*****
SUDHIR MITTAL, J.
The issue involved in these writ petitions being identical, they
are being decided by a common judgment. For ease of reference, the facts
are being extracted from CWP No.16059 of 2012.
2. The Punjab Public Service Commission (hereinafter referred
to as the PPSC) issued instructions sometime in the year 2009 for the
Punjab State Civil Services Combined Competitive Examination to be held
in the same year. A total of 143 posts were advertised out of which 38
posts were for selection to the Punjab Civil Service (Executive Branch),
hereinafter referred to as the PCS (EB). By way of corrigendum, the total
number of posts were increased to 180. In all, 21 posts were reserved for
the Category of Balmiki/Majbi Sikhs.
3. Preliminary examination was held on 19.12.2010. Having
qualified the same, the petitioners appeared in the main competitive
examination held between 14.09.2011 to 10.10.2011. A list of 514
shortlisted candidates was released by respondent No.4-PPSC for
interview. Viva-voce examination was conducted between 14.05.2012 to
13.06.2012. After completion of the examination process, category-wise
merit list was released. The list of candidates belonging to the
Balmiki/Majbi Sikh category contained 25 names out of which petitioner
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No.1 was at Sr. No.22 and petitioner No.2 was at Sr. No.23. Petitioner
No.3 was at Sr. No.6 and was selected as Excise Taxation Officer.
Petitioner Nos.1 & 2 were not selected. The list of General Category
candidates is on record as Annexure P-4 and contains names of 254
candidates. According to the petitioners, out of the 38 posts for PCS (EB),
17 belonged to the General Category and 04 were reserved for
Balmiki/Majbi Sikhs.
4. From the foregoing narration, it is evident that the petitioners
belong to the Balmiki/Majbi Sikh category. They have approached this
Court because petitioner nos.1 & 2 have not been selected and petitioner
No.3 has not been selected to the PCS (EB). Their precise grievance is
that Rajdeep Kaur and Amandeep Kaur who are at Sr. Nos.1 & 2 in the list
of successful candidates belonging to the Balmiki/Majbi Sikh category
have scored more marks than Tejdeep Singh Saini at Sr. No.11 in the list
of General Category candidates. Thus, they should have been placed in
the list of General Category candidates. Had this been done, petitioner
No.3 would come at Sr. No.4 in the merit list of candidates belonging to
Balmiki/Majbi Sikh category. There being 04 vacancies in PCS(EB) for
the said category, he would get a better service. Petitioner Nos.1 & 2
would come at Sr. Nos.20 & 21 in the same merit list. There being total of
21 vacancies for Balmiki/Majbi Sikh category, they would get appointed
to one of the allied services. Thus, the merit list as declared is illegal and
deserves to be recast. Reliance has been placed upon a judgment of the
Supreme Court in R.K. Sabharwal & ors. vs. State of Punjab & ors.,
1995 (2) SCC 745.
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5. Learned Senior counsel for the petitioners has argued that the
law is well settled. If a reserved category candidate scores higher marks
than the General Category candidate, he/she must be considered in the
General Category.
6. On behalf of the respondents, arguments have been led by
Senior counsel appearing for respondent No.5. The said candidate is at Sr.
No.16 in the merit list of General Category candidates and has been
allotted PCS (EB), as a total of 17 General Category posts were available.
According to him, the Rule that Scheduled Caste Category candidates
scoring higher marks than General Category candidates be included in the
list of General Category candidates is not an absolute rule. The choice of
the candidates is also relevant. In the instant case, Rajdeep Kaur and
Amandeep Kaur have sworn affidavits that they would like to retain their
respective Reserved Category seats and thus, they cannot be forced to
become a part of the General Category. Further, the rule is subject to
policies framed by the State Government. Policy dated 19.11.1992
stipulates that no appointment should be made to a higher service after
completion of the selection process. This policy would be violated if the
prayer of the petitioners is granted. Recasting of the merit list would also
result in disturbing candidates who have been occupying the posts to
which they were appointed for a long period of time. This is not
permissible as has been held by the Supreme Court in Bharat Sanchar
Nigam Ltd. & anr. vs. Sandeep Choudhary & ors., 2022 AIR (SC) 2975
and Narender Singh vs. State of Punjab & ors., 2022 (1) SCT 518. In
para 6 of the writ petition, it has been averred that there are 06 vacant
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posts in PCS (EB). If at all, petitioner No.3 is to be adjusted in PCS(EB)
he can be adjusted against one of these vacancies. Recasting of the
complete merit list is not required. It has also been submitted that
requisition dated 04.11.2008 was sent by the Govt. of Punjab to the
Secretary, PPSC for filling up 05 backlog posts of Scheduled Castes and
Backward Class Category. The breakup of these posts was; one post for
Balmiki/Majbi Sikh, one for Scheduled Cast (General) Category and three
for Backward Class Category. These backlog posts were also filled up in
the selection process, as a result of which there were a total of 05 posts for
Balmiki/Majbi Sikhs and not 04 as highlighted by learned Senior counsel
for the petitioners. Candidate Amandeep Kaur has scored equal number of
marks as Tejdeep Singh Saini who is at Sr. No.11 in the merit list of
General Category candidates. Thus, she cannot be shifted to the General
Category. Only Rajdeep Kaur can be shifted. Resultantly, petitioner No.3
would come at Sr. No.5 and the candidate at Sr. No.5 has been appointed
as Excise Taxation Officer, which post petitioner No.3 is already holding.
He would thus, get no benefit from the exercise. Similarly, petitioner No.2
would also not make the cut as he would come at Sr. No.22 whereas only
21 vacancies exist for Balmiki/Majbi Sikhs. Thus, the writ petition
deserves to be dismissed.
7. On behalf of the State of Punjab, it has been argued that the
candidates at Sr. Nos.1 & 2 in the merit list of Balmiki/Majbi Sikh
Category have not approached the Govt. for considering their names
against the General Category and thus, they have not been so considered.
The Govt. cannot go against their wishes. It has also been argued that
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considering Reserved Category candidates with higher merit than General
Category candidates against General Category vacancies would deprive
them of getting a better service. Thus, the rule of considering Reserved
Category candidates with higher merit in the General Category has not
been followed. Even the Supreme Court has approved of this in Union of
India Vs. Ramesh Ram & ors., 2010 (7) SCC 234.
8. In rebuttal, learned Senior counsel for the petitioners has
stated that the backlog vacancies cannot be added to the advertised seats.
The judgment in Ramesh Ram (supra) is not applicable to the facts of this
case because the candidates to be displaced would be getting the same
service as at present. Only if a Reserved Category candidate is getting a
less preferred service, can he refuse to be considered against General
Category. Thus, the affidavits submitted by the candidates at Sr. Nos.1 &
2 in the merit list of Balmiki/Majbi Sikh category candidates have no legal
value. He has also referred to Union of India & anr. vs. Satya Prakash &
ors., 2006 (4) SCC 550.
9. Two related issues having a bearing on the main controversy
and raised by the learned counsel are being decided first. These two issues
are regarding 06 vacant posts being available in the PCS (EB) and
consideration of 05 backlog vacancies along with the selection process.
10. In para 12 of the writ petition, it has been specifically averred
that at least 06 candidates have not joined the PCS (EB) and these posts
can be offered to the persons next in order of merit. In response thereto, in
para 12 of the written statement filed on behalf of the State reference has
been made to Regulation 44 (v) of the Punjab Public Service Commission
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Regulations Part III (hereinafter referred to as the Regulations).
According to the said Regulation, if a candidate does not join service, the
vacancy so created should be carried forward as additional vacancy to the
next year. Such a course has been provided as otherwise the whole merit
list would be upset. No rejoinder has been filed on behalf of the
petitioners to the submission made on behalf of the State. Thus, it has to
be held that no vacancies exist in the PCS (EB) and that vacancies created
on account of non-joining of certain candidates, have been carried forward
to the next selection.
11. In the written statement filed on behalf of respondent No.5, it
has been specifically pleaded that 05 backlog vacancies were also
considered along with the present selection and a copy of the requisition
dated 04.11.2008 has been annexed as Annexure R-5/1. Again, there is no
rejoinder to this categoric averment. However, no such averment has been
made by the State in its written statement. In the written statement filed on
behalf of the State, a total of 04 vacancies for Balmiki/Majbi Sikh category
candidates have been pleaded. All submissions made therein are based
upon existence of 04 vacancies for Balmiki/Majbi Sikh candidates. No
reference whatsoever has been made to any backlog vacancies and thus,
the assertion in this regard made on behalf of respondent No.5 is rejected.
12. The writ petition is thus being decided on the premise that
there were no backlog vacancies nor were their 06 vacant posts in PCS
(EB).
13. Having perused the various judgments cited at the bar, there
appears to be a general rule, even in the State of Punjab, to consider
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candidates belonging to the Reserved Category and scoring higher marks
than the General Category candidates, in the General Category. In this
regard, reference can be made to judgment dated 23.12.2016 passed in
CWP No.8555 of 2008 Rajesh Dhiman vs. State of Punjab & ors. The
petitioner therein belonged to the Backward Class Category and had
applied for the post of PCS (EB) in the examination held in the year 1998.
He made the cut but the examination was cancelled on account of
allegations having been made against the then Chairman of the PPSC. A
re-examination was conducted in 2003 wherein, he came at merit list No.5
in the OBC Category and was appointed Tehsildar. The first 04 candidates
in the said Category were appointed to the PCS (EB). The last selected
General Category candidate had scored less marks than the candidate at
No.2 in the Backward Class Category and it was accordingly held that the
said candidates should have been shifted to the General Category. While
deciding so, reliance was also placed upon a circular dated 11.09.2015
issued by the Govt. of Punjab, Department of Welfare/Reservation Cell as
well as subsequent Instructions dated 11.09.2015. This judgment also
refers to Indira Sawhney vs. Union of India, AIR 1993 SC 477 and R.K.
Sabharwal vs. State of Punjab, 1997 (6) SCC 538. An identical view has
been taken in judgment dated 15.12.2017 passed in CWP No.12618 of
2014 titled as Parminder Singh & ors. vs. State of Punjab and other
connected cases.
14. In Satya Prakash (supra) selection for the Central Civil
Services held by the Union Public Service Commission (UPSC) was in
question. Although 174 vacancies existed for OBC Category candidates
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only 138 candidates were appointed, the remaining 36 having been
included in the General Category merit list. Thus, a question arose
whether the candidates selected against vacancies meant for General
Category could be considered as OBC Category candidates for the purpose
of placement/allocation of service. It was held that the same is permissible
but such a candidate would not be counted while computing the percentage
of reservation. This position in law has however been reversed by a
Constitution Bench judgment in Union of India vs. Ramesh Ram & ors.,
2010(7) SCC 234. Rule 16.2 of the Civil Service Examination Rules
notified on 04.12.2004 providing for adjustment of Reserved Category
candidates recommended against General Category posts against reserved
vacancies for getting a service of preference was upheld. The judgment in
Satya Prakash (supra) was distinguished. The reason given was that
otherwise, the Reserved Category candidates selected in General Category
may not get a service of preference whereas a candidate belonging to the
Reserved Category and appointed against the said Category would do so.
Such a situation would be unfair to a more meritorious candidate. The
counting of such a candidate towards the total percentage of Reserved
Category was held to be reasonable as otherwise it would result in
exceeding 50% quota meant for reservation.
15. Coming back to the facts of the present case. Merit list of
Balmiki/Majbi Sikh Category candidates is as follows:
Sr. Roll Name Exam Viva Grand %age Merit
No. No. Marks Voca total
1. 2498 Rajdeep Kaur 565.00 62.56 627.56 62.7560 1
2. 1068 Amandeep Kaur 585.50 42.00 627.50 62.7500 2
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3. 1903 Jyoti Bala 537.00 59.00 596.00 59.6000 3
4. 1355 Brahmneet Kaur 529.50 62.30 591.80 59.1800 4
5. 2674 Rupinder Kaur Bhatti 524.50 64.89 589.39 58.9390 5
6. 2052 Madhur Bhatia 539.50 43.11 582.61 58.2610 6
7. 2964 Supnandandeep 513.00 60.78 573.78 57.3780 7
Uppal
8. 1231 Anurag Bharti 513.50 54.60 568.10 56.8100 8
9. 1886 Jeetpal Kaur 514.00 52.33 566.33 56.6330 9
10. 1581 Gurpreet Singh 506.50 55.10 561.60 56.1600 10
11. 2943 Sumit Thapar 513.00 46.33 559.33 55.9330 11
12. 2027 Lakhbir Singh 505.50 53.33 558.83 55.8830 12
13. 1048 Akashdeep Singh 498.50 58.80 557.30 55.7300 13
14. 2245 Narinder Kumar 498.50 56.22 554.72 55.4720 14
15. 1615 Harbhajan Singh 498.00 54.50 552.50 55.2500 15
16. 1567 Gurmit Singh 496.50 53.50 550.00 55.0000 16
17. 2282 Navkash Deep Singh 490.50 50.00 540.50 54.0500 17
18. 2867 Simrat Kaur 490.00 50.44 540.44 54.0440 18
19. 2986 Surinder Singh 496.00 44.00 540.00 54.0000 19
20. 1112 Amardeep Singh 482.00 54.80 536.80 53.6800 20
21. 3094 Vikram Jit 487.50 48.78 536.28 53.6280 21
22. 1266 Ashwani Kumar 487.00 46.50 533.50 53.3500 22
23. 2658 Rohit Lotia 479.00 51.56 530.56 53.0560 23
24. 1110 Amardeep Bawa 482.50 47.00 529.50 52.9500 24
25. 2194 Mohit Kalyan 489.00 40.00 529.00 52.9000 25
16. Relevant extract of the merit list of General Category
candidates is also reproduced below:-
Sr. Roll Name Exam Viva Grand %age Merit
No. No. Marks Voca total
1. 1097 Amaninder Kaur 637.50 70.70 708.20 70.8200 1
2. 2738 Sanjeev Sharma 603.50 52.44 655.94 65.5940 2
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3. 2759 Sargun 582.00 66.22 648.22 64.8220 3
4. 2434 Pooja Sayal 571.50 72.90 644.40 64.4400 4
5. 1133 Amit Bamby 593.00 50.50 643.50 64.3500 5
6. 1108 Amarbir Kaur Bhullar 574.00 68.90 642.90 64.2900 6
7. 2358 Paramdeep Singh 572.50 69.80 642.30 64.2300 7
8. 2696 Sakatar Singh 576.50 58.38 634.88 63.4880 8
9. 1685 Harpreet Kaur 567.50 63.57 631.07 63.1070 9
10. 1276 Avneet Kaur 564.00 64.50 628.50 62.8500 10
11. 3024 Tejdeep Singh Saini 565.50 62.00 627.50 62.7500 11
12. 1644 Harjeet Singh Sandhu 574.00 52.40 626.40 62.6400 12
13. 2561 Rakesh Kumar Popli 555.50 70.20 625.70 62.5700 13
14. 1187 Anand Sagar Sharma 573.50 52.00 625.50 62.5500 14
15. 2552 Rakesh Kumar 573.00 51.00 624.00 62.4000 15
16. 1760 Isha Singal 546.00 76.60 622.60 62.2600 16
17. 2493 Rajat Oberoi 568.50 53.70 622.20 62.2200 17
18. 1092 Amandeep Singh 551.50 70.20 621.70 62.1700 18
Brar
19. 1295 Baljinder Singh 545.50 73.70 619.20 61.9200 19
20. 1691 Harpreet Singh 566.00 52.70 618.70 61.8700 20
21. 1039 Ajit Pal Singh 546.00 71.80 617.80 61.7800 21
22. 1114 Amareshwar Singh 551.00 66.70 617.70 61.7700 22
23. 1002 Aaditya Gupta 550.00 67.40 617.40 61.7400 23
24. 1227 Anupam Talwar 548.00 68.80 616.80 61.6800 24
25. 1713 Harsimrat Kaur 541.00 73.60 614.60 61.4600 25
Grewal
17. A comparison of the aforementioned merit lists shows that
Rajdeep Kaur (at No.1 in the merit list of Balmiki/Majbi Sikh Category)
has scored higher marks than the candidate at Sr. No.11 in the merit list of
General Category candidates whereas Amandeep Kaur (at Sr. No.2 in the
merit list of Balmiki/Majbi Sikh candidates) has scored the same number
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of marks. Thus, in accordance with the General Rule, Rajdeep Kaur
would come at merit No.11 in the merit list of General Category
candidates, Tejdeep Singh Saini would be pushed to No.12 and Amandeep
Kaur would come at No.13. As a result, Isha Singal at merit No.16
(respondent No.5) would be pushed out of the list of selected candidates as
there are only 17 vacancies for General Category candidates. Petitioner
No.6 would be pushed up to Sr. No.4 in the merit list of Balmiki/Majbi
Sikhs and Rupinder Kaur Bhatti at Sr. No.5 would be pushed up to Sr.
No.3. Both these candidates have been appointed as Excise & Taxation
Officers (ETOs) and would get entitled to be appointed to the PCS (EB).
Petitioners No.1 & 2 who are respectively at Sr. Nos.22 & 23 in this list
would get pushed up to Sr. Nos.20 & 21, hence, entitled to be selected,
there being a total of 21 vacancies in the Reserved Category of
Balmiki/Majbi Sikhs. However, if the same is done, it would result in 02
candidates belonging to the General Category losing the jobs obtained by
them in the year 2012. It would also result in recasting of the merit list of
ETOs and allied services after a period of 10 years. This would be gravely
prejudicial to the interests of the selected candidates as they were in no
way responsible for preparation of the respective merit lists. A similar
situation arose in BSNL (supra) and the Supreme Court struck a balance
by accommodating the displaced candidates against additional vacancies
created by it by issuing directions under Article 142 of the Constitution of
India. In Narender Singh (supra), the candidate displaced was ordered to
be accommodated against a vacant post. In the instant case, there are no
vacancies nor does this Court possess powers akin to those available to the
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Hon'ble Supreme Court under Article 142 of the Constitution of India.
Thus, even though the prayer made in the writ petition is justified, no relief
can be granted to the petitioners as it would result in unsettling the selected
candidates. In comparison, petitioner No.3 being in service already would
not be gravely prejudiced and petitioners No.1 & 2 would have moved on,
a long period having elapsed since the completion of the selection process.
18. For the foregoing reasons, the writ petition is dismissed.
19. Pending miscellaneous applications, if any, stand disposed of.
15.12.2022 (SUDHIR MITTAL)
'Ankur Goyal' JUDGE
Whether speaking/reasoned Yes
Whether Reportable Yes
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