MANDEEP KUMAR AND OTHERS versus U.T. CHANDIGARH & OTHERS on 9 March 2022

1. Leave granted.

2. The instant appeal arises out of the judgment dated 17.01.2020,passed by the High Court of Punjab & Haryana in Civil Writ PetitionNo. 24383 of 2016, whereby the aforesaid Writ Petition was dismissedon the basis of statement made by learned Additional Advocate Generalof the State of Punjab regarding the decision taken by the authorities tore-advertise the unfilled posts of Elementary Trained Teachers (in short“ETT”) afresh and to fill up it in accordance with law. Being aggrievedby the said judgment, the appellants have preferred the instant appeal.

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A3. The controversy in nutshell brought by way of suo moto PILregistered by the High Court of Punjab & Haryana pertained to inactionof the State of Punjab in filling up of vacancies of ETT, which wereadvertised vide two separate advertisements dated 08.11.2015 and30.07.2016. In the abovesaid advertisements, total of 4500 and 2005vacancies of ETT were notified under various categories inclusive ofBSC/ST, OBC, freedom fighter, handicapped etc. respectively. Afterentertaining the Public Interest Litigation and as per the interim directionsof the High Court, the posts of ETT had been filled up as per merit andcategory wise. But due to not having selected eligible candidates of SC/ST category those posts remained vacant. Now, it is the grievance ofCthe appellants that the unfilled posts of SC/ST category may be filledfrom the eligible candidates of Backward Class category, directinginterchangeability of the said vacant posts.

4. The facts as put forth in appeal, the appellants have applied forthe post of ETT in the category of Backward Class. Pursuant to theDadvertisement, selection process was carried out and appointment letterswere issued to the selected candidates. All the notified posts of BackwardClasses have been filled up merit wise after the direction of the HighCourt. In the said process of selection, 595 posts of SC/ST categoryremained unfilled on account of “non- availability” of eligible candidatesin the said category. The appellants herein are claiming appointmentEagainst those vacant posts of SC/ST category on the anvil of policyinstructions regarding “Reservations of vacancies in State GovernmentServices of members of Backward Classes”, issued by State of Punjabvide letter no. “1945-WG-54- 17246, dated 17.03.1954 (hereinafter tobe referred to as Policy letter No.17246). The aforesaid Policy letterFprovide for “de-reservation/ interchangeability” of the post from SC/STcategory to OBC category or vis-à-vis in a contingency of non-availabilityof eligible candidates belongs to SC/ST or OBC, as the case may be.The appellants submitted various representations to the concernedauthorities on the basis of the said Policy letter for interchangeability ofGthe posts of SC/ST into OBC category, which as per appellants was notconsidered in a right perspective. Now by order impugned as per thestatement made by the State Government those posts are being re-advertised, without redressing their grievance.

5. Mr. P.S. Patwalia, learned senior counsel for the appellantscontends that against un-filled posts of SC/ST category in terms ofH

instructions issued vide Policy letter No. 17246 interchangeability of thepost from SC/ST to OBC category is permissible. Sub-section 2 of Section7 of The Punjab Schedule Castes and Backward Classes (Reservationin Service) Act, 2006 (for short “the 2006 Act”) does not restrain theState Government to fill up the un- filled vacant post of SC/ST categoryby OBC category by interchanging the same. The respondent-Statedespite an order of the High Court has rejected the claim, relying uponthe instructions issued vide letter No. 1945-WG-54/17248 dated 17.3.1954(hereinafter to be referred to as “Policy letter No. 17248”) on 2.8.2019,though it is not applicable to the subject in context. This fact was broughtto the notice of the Court, however an order was passed on 2.12.2020,directing the respondent to pass order, strictly in accordance with thepenultimate paragraph of the order dated 07.09.2018 of the High Courtwithin four weeks. The State Government again vide order dated11.12.2020, rejected the claim mentioning the incorrect fact of withdrawalof instructions of the Policy letter No. 17246. In fact, the said instructionswere restored vide letter No. 1346-SW1-74/11491 dated June 20, 1974and is in existence. Thus, the State Government sit tight over the matterignoring their own policies and making attempt to rely the instructions,having no application in the issue. After passing the impugned orderdated 17.1.2020 and during pendency of the present appeal, freshadvertisement to fill up the Posts of ETT has been issued withoutventilating the grievance of the appellants regarding interchangeabilityof the posts and to consider the appellants for appointment on the abovesaid Posts.

6. Per contra, Mr. Karan Bharihoke, learned counsel representingthe respondent Nos. 2 to 4 contends that as per Section 7 of 2006 Act,de-reservation is not permissible. In terms of the provisions of the 2006Act and the instructions issued by the State Government, the claim ofthe appellants has been reconsidered by the Department of Social Justice,Empowerment and Minority, and vide reply dated 5.1.2021 rejected theclaim of the appellants. It is urged that by issuing the fresh advertisement,the process to fill up of the vacant posts of ETT in the State has started,however the High Court has not committed any error while passing theorder impugned. The State Government in compliance to the order ofthe High Court is duty bound to fill up the vacant posts of ETT asexpeditiously as possible, therefore now process of selection has beenstarted.

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A7. After having heard learned counsel for the parties and on perusalof the facts of the present case, it is apparent that to fill up the posts ofETT, advertisements were issued on 9.11.2015 for 3522 posts and videcorrigendum dated 13.1.2016, additional 978 posts were again notifiedmaking the total posts 4500. In another set of process of recruitment, bysubsequent advertisement dated 30.7.2016, 2005 posts of ETT wereBnotified. Appellants applied under both the advertisements and undergonethe process of selection for the posts of ETT, and also found place onmerit.

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8. The Public Interest Litigation came to be registered by HighCourt because certain applicants belonging to the Backward ClassCcategory protested by holding out threats to commit suicide against theinaction of the State of Punjab. As per the protestors, they had qualifiedtheir test and were eligible for appointment as ETT. They further insistedthat a meeting be held regarding their demands with the Chief Ministerof Punjab. The said incident gathered media attention, whereafter, the DHigh Court of Punjab and Haryana took “suo-moto” cognizance on theissue on judicial side treating it as Public Interest Litigation, registeringthe same i.e., as CWP. No. 24383 of 2016.

9. The said writ petition was disposed by the High Court videorder dated 23.12.2016 with the following directions:

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“We are of the view, that the methods adopted by the protestersare unfortunate, improper and incorrect. It is to be noticed that atone stage the persons protesting had stated that once the processwas initiated, they would end their protest and now, evenappointment letter is being offered, but one of the protesters isFsomewhat unrelenting. In the circumstances, the furthercontinuation of the Court proceedings may not be proper. However,the matter was taken up as it was viewed that the protesting youthmay not loose their lives by their misplaced notions and for thisthey needed counselling and guidance.

Ms. Tanu Bedi, Advocate (Amicus Curiae) has emphasized thatthe matter be kept pending for laying down guidelines in future insuch cases. Though we would have liked to do so but for thepresent, it would be just and expedient to put a quietus to thematter sothat the person protesting can climb down from thetower and seek his appointment as Elementary Teacher after G

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complying with the necessary formalities. Besides, the State shallcontinue with its process ofoffering appointment letters to theElementaryTeachers whose turn on merit has reachedso thatthe recruitment process against the 4005 and the 2005 posts ofElementary Teachers is completed and the vacant posts are filled.

Mr. H.C. Arora, Advocate as also Mr. Jagmohan Singh Bhatti,Advocate (Amicus curiae) and Ms. Tanu Bedi, Advocate (AmicusCuriae) State that they shall jointly file a PIL in this regard. Theymay do so.

The present petition is, accordingly disposed of.”

10. Thereafter, C.M. No. 5766 of 2017 was filed before the HighCourt on 3.4.2017 by the appellants informing about the subsequentdevelopments which transpired after passing the said order. The responsewas sought from the Director, Public Instruction (Elementary Education).A comprehensive affidavit was filed apprising about the vacancies andthe steps taken by the Department of School Education for de-reservation/interchangeability of the post of Schedule Caste/Tribe category to OBCcategory.

11. As per the response, it is not disputed that 595 posts of SC/STcategory are not yet filled due to non-availability of the eligible candidatesin the said category. It is also not disputed that out of the said process ofselection, about 100 eligible candidates of OBC category were available.It is said the Suo Moto Writ Petition No. 24383 of 2016 was registeredto maintain law and order situation due to the protest raised byunemployed youths climbed on tower on account of not filling the postsof ETT. It was further stated that merit candidates of Backward Classeshave already been appointed on the vacant posts of the said category.Now they are claiming interchangeability of the 595 unfilled posts ofSC/ST category to Backward Class category as per the Policy letterNo. 17246. It is further urged Section 7 of the 2006 Act confers powersto the State Government to take decision if expedient in public interest.

12. On perusal of record, it reveals the High Court vide orderdated 9.2.2018 directed the Department of Welfare, Government ofPunjab to take a decision on the letter of the Department of SchoolEducation affording due opportunity of hearing to the applicants. TheHigh Court also granted time to the candidates of Backward Classcategory to file the fresh representation for consideration. There after A

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Avide order dated 9.5.2018 passed by the Principal Secretary, Departmentof Welfare of Scheduled Castes, Backward Classes and Minorities, theserepresentations were rejected relying on the instruction letter No. 17248.It is true those instructions were not applicable and they had to considerthe Policy letter No. 17246, relevant on the issue. There after HighCourt vide order dated 7.9.2018 directed the State Government to passBa fresh order in terms of the Policy letter No. 17246. The StateGovernment filed the reply by way of additional affidavit before theHigh Court and said that Department of Social Welfare, Punjab videletter dated 4.10.2018 declined to interchange the vacant post of SC/STcategory to the Backward Class. In the meantime, Writ Petition (PIL)CNo. 108 of 2019 was filed before the High Court making prayer to issuethe direction to the State of Punjab to fill up the said vacant posts ofScheduled Caste category, which was disposed of vide order dated15.05.2019. The application filed by the appellants in the said Writ Petitionfor modification was also disposed off observing that while passing theorder, the appellants/applicants may also be given an opportunity ofDhearing. Thereafter, Director, Education Department on 16.8.2019 wrotea letter to the Principal Secretary, Social Justice, Empowerment andMinorities (Reservation Cell) seeking guidance regardinginterchangeability. The Department of Social Justice, relied upon theorder dated 9.5.2018 and said the interchangeability of the posts is notEpermissible. The High Court after the response, passed the orderimpugned dated 17.01.2020 dismissing the writ petition with the followingobservations:

“Having perused the record, it is also observed that a public interestlitigation CWP -PIL -108-2019 was filed before this Court prayingFfor issuance of a direction to the State of Punjab to fill up theaforesaid vacant posts of Schedule caste category, which petitionhas been disposed of by this Court vide order dated 15.5.2019directing the State of Punjab to consider the representation ofpublic interest petitioners. IT is further observed that aGmiscellaneous application was filed by certain OBC candidatesseeking recall and modification of the direction issued by this Courton 15.05.2019 in CWP-PIL-108-2019, which has also beendisposed of by this Court by order dated 30.5.2019 with amodification that the applicants would also be granted hearing bythe authorities while taking a decision.

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The respondents in their additional affidavit have placed orderdated 02.08.2019 on record passed by the Director, Education,Punjab, in compliance with the order passed by this Court in PublicInterest Litigation as well as the order of modification dated30.05.2019. From a perusal of the same, it is evident that theauthorities have examined the issue and have rejected the claimof the applicants.

The learned Additional Advocate General, appearing for the Stateof Punjab submits that the authorities have now taken a decision tore-advertise the posts and fill up the same in accordance with law.

In view of the aforesaid facts and events that have transpired, wedo not find any reason to keep the present petition pending whichwas initiated suo moto by this Court on account of the illegal modeof protest adopted by certain persons. More so, in view of thefact that the issue that was subsequently taken up by this Court inthe present case, has already been addressed and appropriateorders have been passed in CWP-PIL-108-2019. In thecircumstances, as nothing further survives for decision in thepresent suo moto writ petition, the same is accordingly dismissed,taking the statement of the learned Additional Advocate General,Punjab on instructions from Ms. Malka Rani, Senior Assistant,DPI(EE) on record, that they are taking up steps for filling up theposts in accordance with law, including the steps of examining theissue of seeking dereservation, if so advised, as contained in Section7(2) of the Punjab Scheduled Castes and Backward Classes(Reservation in Service) Act, 2006.

In view of the aforesaid discussion, as the petition is dismissed nofurther orders are required to be passed by this Court in theapplications filed by the applicants.”

13. On filing the present appeal and after issuance of notice, indeedon 2.12.2020 this Court passed the following order “Having heard Shri P.S. Patwalia and Shri Bharihoke at samelength, it appears clear to us that the High Court order dated07.09.2018 in particular:

“Learned State counsel prays for time to seek instructions andto file an affidavit in this regard. In case it is found that theearlier order passed was based on instructions issued vide letter A

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No. 1945-WG-54/17248 dated 17.3.1954, then therespondent-Department shall pass a fresh order on the basisof the instructions vide letter No. 1945-WG-54-17246 dated17.3.1954.”

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has not yet been complied with. We had been shown an orderBdated 02.08.2019 which merely reiterates the 07.09.2018 orderwithout the Government applying its mind to the penultimateparagraph of the High Court order dated 07.09.2018 set outhereinabove.

We therefore, direct the respondent to pass an order strictly inaccordance with the penultimate paragraph of order dated07.09.2018 within four weeks from today.

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The interlocutory application is disposed of accordingly.

Application for impleadment is dismissed as withdrawn.”

D14. In response to the order, the additional affidavit is filed beforethis Court, inter alia, contending that the interchangeability of the postsof SC/ST category of ETT to OBC category is not permissible withregard to the instructions contained in Policy letter No. 17246, it is saidthose instructions have already been withdrawn. It is stated that thede-reservation/ interchangeability of the post from SC/ST category toEOBC category is not permissible as per Section 7 of 2006 Act.

15. In this regard to appreciate the arguments, the provision ofSection 7 of 2006 Act is required to be quoted for ready reference,which is reproduced as thus:

“7. De-reservation of reserved vacancy. – (1) There shall be noFde-reservation of any reserved vacancy by any appointing authorityin any establishment, which is to be filled up by direct recruitmentor by promotion. In case, a qualified or eligible Scheduled Castesor Backward Classes candidate, as the case may be, is notavailable to fill up such vacancy, in that situation, such vacancyGshall remain unfilled.

(2) Notwithstanding anything contained in sub-section (1), if, inthe public interest, it is deemed necessary to fill up any vacancyreferred to in that sub-section, the appointing authority shall referthe vacancy to the Department of Welfare of Scheduled Castesand Backward Classes for de-reservation. Upon such reference, H

the Department of Welfare of Scheduled Castes and BackwardClasses may, if it is satisfied that it is necessary or expedient so todo, by order in writing, de- reserve the vacancy, subject to thecondition that the vacancy so de-reserved, shall be carried forwardagainst a subsequent unreserved vacancy. “

16. From the bare reading of the aforesaid, it is clear thatde-reservation of any reserved vacancy which is to be filled up by directrecruitment or by promotion cannot be done by the appointing authority.In case due to non-availability of the eligible candidates of any of thecategory, the posts remain unfilled, the appointing authority may requestto the Department of Welfare of Scheduled Castes and BackwardClasses for de-reservation of the said unfilled vacancy. On such requestafter recording satisfaction, if necessary or expedient in the public interest,subject to the condition to carry forward the said vacancy againstsubsequent unreserved vacancy the order may be passed by the saiddepartment.

17. In this context, the instructions issued vide Policy letter No.17246 are also relevant, which are extracted and reproduced as thus:

“Government have now decided that, on the basis of theirpopulation, an additional 2 per cent of vacancies in the StateGovernment services should also be reserved for members of the‘Backward Classes’ and that before vacancies reserved forBackward Classes are thrown open to others, they should first beoffered to candidates of Scheduled Castes/Tribes, if available. Inthe same way, before vacancies meant for Scheduled Castes/Tribes are thrown open to others owing to unavailability of suitablecandidates, they shall be offered first to the backward classes.”

18. The aforesaid Policy letter was withdrawn vide letter No.13565-4WGI-64/23892 dated 11[th] November, 1964, but it was againrestored adding some conditions vide letter No. 1346-SW1-74/11491 dated20.06.1974; the relevant extract of such instruction is also reproducedas thus:

“I am directed to refer to the subject noted above and to say thatprior to 11[th] November, 1964, in the event of non-availability ofScheduled Castes/Tribes candidate against a reserved vacancy,preference was given to Backward Classes candidates and viceversa, over other general candidates. This inter- changeability of A

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reserved vacancies was withdrawn – vide para 4 of PunjabGovernment letter No. 13565- 4WG1-64/23892 dated 11[th]November, 1964, with the result that if a reserved vacancy is notfilled by the candidate belonging to the particular category forwhich it is reserved it is carried forward in accordance with thecurrent instructions, or, if this is not possible, it is thrown open toother generally.

2. This matter has been engaging the attention of Government forsome time past and it has now been decided that after the carryforward rule has been exhausted and a suitable scheduled castcandidate has still not become available, a vacancy reserved forthis category should first of all be offered to a candidate belongingto the Backward Classes, before it is thrown open for generalrecruitment. In case a Backward Class candidate avails of sucha vacancy, the vacancy properly reserved for a Backward Classcandidate later in the roster would then go to a Scheduled Castecandidate instead.

3. The receipt of this communication may please be acknowledged.

19. The clarification as issued vide letter No. 2/246/78- SW3/7416 dated 10.12.1979 written by the Secretary to Government of Punjab,Scheduled Caste and Backward Classes to all heads of Departments isalso relevant however, reproduced as under:

“Subject: Reservation in services for members of ScheduledCastes and Backward Classes- Interchangeability ofreserved posts between them.

I am directed to invite a reference of Punjab Government letterNo. 1346-SW1-74/11491 dated 20[th] June, 1994 and letter No.771-SW1-76 dated 6[th] April, 1976, on the subject noted above,and to say while giving the benefits of interchangeability to abackward Class candidate and vice-versa, the Department donot obtain no-objection certificate from the Department of Welfareof Scheduled Castes and Backward Classes despite clear provisionin the instructions. To make it clear, under the instructions,no-objection certificate is a must before the vacancy meant forScheduled Castes person is offered to a Backward Class candidateand vice-versa.

2. Its receipt may please be acknowledged.”

20. From the above it is clear that as per Section 7 of 2006 Act,de-reservation for the reserved vacancy by the appointing authority isrestricted. The said de-reservation may be possibly directed by theDepartment of Welfare of Scheduled Castes and Backward Classes ifit is expedient in public interest after recording satisfaction for such de-reservation. In the said contingency the department shall pass an orderassigning those reasons. Thus, in the context of 2006 Act also thede-reservation or interchangeability may be possible with a rigour toexercise such power by the department, namely; Department ofScheduled Castes and Backward Classes and not by appointing authority.If we examine the Policy letter No. 1945-WG-54-17246 which waswithdrawn on 11.11.1964, later restored vide letter dated 20.06.1974makes it clear that those instructions are not in contravention of theprovisions of Section 7 of the 2006 Act; in fact, it is as per the spirit ofthe 2006 Act. Therefore, in the net result, the interchangeability of thevacant unfilled posts of SC category may be possible due to not havingeligible candidates by the department concerned but not by appointingauthority. In the said context, the letters returned by the EducationDepartment in favour of the appellants to the department concerned arenot of much relevance in particular when the department concernedhave not agreed upon the request of interchangeability of the unfilledposts of SC/ST category and refused to accept the request of theappointing authority. In addition to the aforesaid it is required to beobserved in the manner in which the protest was started by the candidatesof the OBC category was not justified. The High Court has rightlyobserved that steps taken by the protestors were unfortunate, improperand incorrect. The suo moto PIL No. 108-2019 was entertained to savethe life of protesting youth, and it should not be influenced by misplacednotions and they may be counselled or guided by the authorities. However,after issuing the direction, the candidates of the OBC category wereappointed in terms of their merit. Thereafter, by filing the miscellaneousapplications and subsequent writ petitions the relief to fill up the vacantposts of SC/ST category from the candidates of the Backward Classeshas been pressed upon, which has been rejected by the High Court bythe order impugned. At this stage it cannot be lost sight that the merit listwas prepared in furtherance to the advertisement of the year 2015-2016and to accommodate the candidates of the said merit list. Thereafterinterchangeability for unfilled 595 vacancies of SC/ST category has beenprayed for. In our considered opinion, issuance of such direction after 6

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Ayears of notifying the selection list for filling up the unfilled vacancies ofSC/ST category by OBC would be wholly unjustified. In addition, theselection list prepared in the year 2016 would not survive after the lapseof a long time to fill up the vacancies after interchangeability. It is toobserve that rejection of claims of appellants by the departmentalauthorities relying upon wrong instructions or mentioning incorrect factBof withdrawal of Policy letter No. 17246 would not confer any right toappellants to claim the reliefs. Such an act of the departmental authoritiesmay be deprecated but it would not confer any right to the appellants toseek direction of interchangeability of the unfilled 595 posts of ETT ofSC/ST category to OBC category. Therefore, the argument advancedCby learned senior counsel Mr. Patwalia in this regard is hereby repelled.As stated by the respondent, the process to fill up the vacant posts ofETT in the state has already been advertised, which is in accordance tolaw. Therefore, in view of the discussion made hereinabove, we are notinclined to grant the relief as prayed in this appeal.

D21. In view of the foregoing discussion, we are not inclined tointerfere in the order impugned. Accordingly, this appeal stands dismissed.No order as to costs.

Devika Gujral

(Assisted by : Shevali Monga, LCRA)E

Appeal dismissed.

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