GURMEET PAL SINGH versus STATE OF PUNJAB & ANR. on 15 May 2018

[2018] 6 S.C.R. 1036

SUPREME COURT REPORTS

[2018] 6 S.C.R.

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GURMEET PAL SINGH

v.

STATE OF PUNJAB & ANR.

(Civil Appeal No. 4853 of 2018)

BMAY 15, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

Judicial Service – Punjab Superior Judicial Service Rules,2007– r.7(3)(c) – Advertisement issued, inviting applications forselection to Punjab Superior Judicial Service through directCrecruitment from amongst the Advocates – Appellants-candidatesappeared for the written examination – On declaration of the resultof the written examination, viva voce was held whereafter there wasvariation in the merit position of the candidates in the combinedmarks compared with just the written examination – Challenged byDappellants – Held: When a candidate appears in an examinationwithout objection and is subsequently found to be not successful, achallenge to the process is precluded – Appellants not havingchallenged the advertisement at the relevant point of time, cannotbe permitted to contend that having not made the mark in the cutoff for the select list, something must be done to somehowEaccommodate them – No relief granted to the appellants –Constitution of India – Art.309.

Judicial Service – Punjab Superior Judicial Service –Advertisement issued for selection provided for the possibility ofthe number of posts being subject to variation – Post advertisementFone more seat became available – Impact of – Held: This would notmandate the inclusion of a post which fell vacant subsequently, norcan there be even otherwise a compulsion on High Court tonecessarily expand the scope of the number of persons to berecruited.G

Judicial Service – Punjab Superior Judicial Service –Advertisement issued for selection provided for two seats for Ex-Servicemen – Held: Such reservation had no force of law in view ofr.3, 1982 Rules carving out an exception in respect of the PunjabVidhan Sabha Secretariat Service and the Punjab Superior JudicialHService – Punjab Recruitment of Ex-Servicemen Rules,1982– r.3.

Judicial Service – Punjab Superior Judicial Service – Fillingup of existing and prospective vacancies – Held: No doubt everyendeavor should be made to fill up the existing vacancies andprospective vacancies – However, there cannot be a blanketproposition that an advertisement is defective merely because everyvacancy which existed or which is contemplated was not taken intoaccount – A subsequent vacancy arising from an elevation to HighCourt can hardly be treated as in contemplation and it is alwaysopen to not even fill up a vacancy.

Reservation – Right of members belonging to reservedcategory to be included in the unreserved category – Held: Membersbelonging to the reserved category, who get selected in opencompetition on the basis of their merit, have a right to be includedin the General/Unreserved category and are not to be included inthe quota reserved for the SC category.

Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995 – Non-availability ofcandidate under Physically Challenged category – Vacancy carriedforward for the future – Propriety of – Held: Provisions of the1995 Act are towards the social objective of accommodating peoplewith physical disability – There is nothing wrong in carrying forwardthe vacancy for the future.

Dismissing the appeals, the Court

HELD: A.Effect of elevation of a Judge from the category ofdirect advocate recruits to the High Court:

1.1 The elevation of one Justice Sabina on 12.03.2008 is amatter of fact. The submission of the appellants is that one moreseat for General category became available post issuance of theadvertisement and since the number of posts were subject tovariation, this vacancy should be made available to the Generalcategory. It is not in dispute that the advertisement was issuedprior to such elevation on 02.02.2008 and the advertisement notedthe possibility of the number of posts being subject to variation.However, this would not mandate the inclusion of a post whichfell vacant subsequently, nor can there be even otherwise acompulsion on the High Court to necessarily expand the scopeof the number of persons to be recruited. In fact, the persons, AB

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Awho may have become eligible post the advertisement wouldsuffer a prejudice were subsequent vacant posts to be includedagainst an earlier advertisement. The plea based on the vacancyof this seat is, thus, completely devoid of merit.[Para 7][1044-C-E]

B. The provision wrongfully made in the advertisementBreserving two seats for Ex-Servicemen:

1.2 The advertisement did make a provision for two seatsfor Ex-Servicemen– one in General category and one fromBackward Class category. However, such reservation had noforce of law in view of Rule 3 of the Punjab Recruitment of Ex-CServicemen Rules, 1982 carving out an exception in respect ofthe Punjab Vidhan Sabha Secretariat Service and the PunjabSuperior Judicial Service. The High Court having noticed thisfact, abandoned the process of recruitment for this category. Itdid initially resolve that the vacancy advertised for Ex-Servicemen(General) would also go to the General category but ultimatelyDthat is not what was done. The said seat was, however, madeavailable for absorption of the Judges from the Fast Track court.[Paras 4, 8][1044-F-H]

C.The recruitment of two Judges from Fast Track Courts:

E1.3 The appointment of two Judges in the Fast Track courtwas made against the two vacancies, i.e., one of Ex-Servicemen(General) category and the second which occurredon elevation of Justice Sabina from the subordinate judiciary tothe High Court. Such selection was preceded by a SelectionCommittee constituted by the High Court in order to assess theFsuitability for absorption of the Judges. A completely differentprocess was followed for absorption of the Judges from the FastTrack court. The moot point, however, remains whether one ofthe vacancies in the advertisement, which arose ought to havebeen utilized for absorption of these Fast Track court Judges,Gwhich, in turn, affected the senior-most, the appellant. In a way,the appellant suffered the consequences both of a moremeritorious candidate from the SC category being found eligible,because of which he went one slot down. But, it is a well-established legal position that members belonging to thereserved category, who get selected in open competition on the H

basis of their merit have a right to be included in the General/Unreserved category and are not to be included in the quotareserved for the SC category. [Paras 11, 12][1046-B, D-E]

1.4 Insofar as the adjustment against the seat which wasmade available on account of the wrongful reservation for Ex-Servicemen, the fact that the said appellant made an endeavourby taking three successive subsequent exams held on 08.04.2011,02.01.2012 and 29.04.2013, but was unsuccessful, cannot be lostsight of. Not only that, there has been a passage of a decadesince the initial recruitment and though the appellants cannot beblamed for judicial delays, it is really not possible to put the clockback. Thus, the recruitment process is not interfered with onthis aspect. [Paras 13, 14][1046-F-G; 1047-A]

D. Non-availability of candidate with disability:

D. Non-availability of candidate with disability:

1.5 The plea based on an inherent right in view of thewording of the advertisement qua the seat meant for person withdisability when no candidate is available is intrinsically flawed.The provisions of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995, are towards the social objective of accommodating peoplewith physical disability. There is nothing wrong in carrying forwardthe vacancy for the future. [Para 15][1047-B-C]

E.The larger recruitment was possible since the cadre strengthwas more:

1.6 The undisputed fact is that the advertisement was issuedon the basis of a cadre strength of 107. Twenty-seven(27) postswould arise in the category in question and six (6) were alreadyoccupied, thus, the advertisement was issued for twenty-one(21)posts. The advertisement was not challenged by any of theappellants. When a candidate appears in an examination withoutobjection and is subsequently found to be not successful achallenge to the process is precluded. Thus, undoubtedly theappellants not having challenged the advertisement at therelevant point of time, cannot be permitted to contend that havingnot made the mark in the cut off for the select list, somethingmust be done to somehow accommodate them. The plea of the ABC

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Aexistence of a larger number of posts is in this direction. No doubtevery endeavor should be made to fill up the existing vacanciesand prospective vacancies. However, there cannot be a blanketproposition that the advertisement is defective merely becauseevery vacancy which existed or which is contemplated was nottaken into account. A subsequent vacancy arising from anBelevation can hardly be treated as in contemplation. Merelybecause the name of a candidate finds a place in the select meritlist does not given an indefeasible right to appointment as welland it is always open to not even fill up a vacancy. The cadrestrength of 111 relied upon by the appellants is available fromCthe Gradation and Distribution List of Officers of the JudicialDepartment, Punjab corrected up to 31.01.2010, i.e., which wassubsequent to the advertisement and the recruitment process.Thus, the appellants cannot get any relief even on this ground.No relief is granted to the appellants. [Paras 16, 17 and 18][1047- D-G; 1048-A-B, D-E]D

Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC1 : [2002] 3 SCR 810; Samta Andolan Samiti v. Unionof India (2014) 14 SCC 745 : [2013] 11 SCR 1124;Ashok Kumar & Anr.v. State of Bihar & Ors. (2017) 4SCC 357 : [2016] 8 SCR 815; Chandra Prakash TiwariEv. Shakuntala Shukla (2002) 6 SCC 127 : [2002]3 SCR 948; Malik Mazhar Sultan & Anr. v. U.P. PublicService Commission & Ors. (2008) 17 SCC 703;Kulwinder Pal Singh & Anr. v. State of Punjab & Ors.

(2016) 6 SCC 532 : [2016] 4 SCR 439 – relied on.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4853of 2018.

From the Judgment and Order dated 19.08.2013 of the High Courtof Punjab and Haryana at Chandigarh in Civil Writ Petition No.1999 of2009.

WITH

C. A. Nos. 4856, 4857, 4858, 4854 and 4855 of 2018.

Salman Khurshid, Sr. Adv., Gopal Sankaranarayan, Rohit Sharma,Anshul Chowdhary, Adil Boppar, Ms. Sakshi, Sandeep Das, Ms. SurbhiSharma, Parmanand Gaur, Balbir Singh Gupta, Mrs. Kanchan Kaur Dhodi,Ms. Upasana Nath, Anis Ahmed Khan, Rohit Sharma, Anshul Chowdhary,Gauravjeet Narwan, Yash Pal Dhingra, Advs. for the Appellant.

Appellant-in-person.

Nidhesh Gupta, Sr. Adv., Ms. Vriti Gujral, Puneet Varshney, AshokMathur, Ms. Ranjeeta Rohatgi, Subhasish Bhowmick, Gagan Gupta,Saurabh Gupta, Sajith P., Karan Dewan, Ms. Aditi Gupta, Advs. for theRespondents.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J. 1. In exercise of the powersconferred by the proviso to Article 309 of the Constitution of India, thePunjab Superior Judicial Service Rules, 2007 (hereinafter referred to asthe ‘said Rules’) were notified on 31.08.2007 duly published in the Gazetteof 03.09.2007 for regulating the recruitment and the conditions of serviceof the persons appointed to the Punjab Superior Judicial Service. Themethod of appointment as per Rule 7 of the said Rules was both fromamongst the members of the Punjab Civil Service (Judicial Branch), aswell as direct appointment from amongst the eligible advocates on thebasis of written test and viva-voce conducted by the High Court. Sub-clause (c) of Sub-rule (3) of Rule 7 dealt with the latter direct appointmentfor which 25 per cent of the posts were reserved. The appeals in questionrelate to the process of the direct recruitment under these Rules at thefirst instance, carried out in pursuance of the advertisement issued on02.02.2008.

2. In terms of the aforesaid advertisement, applications were invitedfor selection of twenty one (21) candidates, with a further breakup of A

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Aten (10) from General category, six (6) from Scheduled Caste (‘SC’)category, two (2) from Backward Class category, one (1) from Ex-Serviceman (General) category, one (1) from B.C. (Ex-Serviceman)category and one (1) from Physically Challenged category of Locomotoror Orthopedic Disability, under Rule 7(3)(c) of the said Rules. It may benoted that the advertisement also stated that ‘the number of posts willBbe subject to variation.’ Note 4 to the advertisement qua the PhysicallyChallenged category also stated that “if no candidate is found suitable ormedically fit under this category, the post shall be reverted to the Generalcategory candidate.”

3. The appellants before this Court are all candidates, whoCappeared for the examination. It may be noted that none had assailedthe advertisement on any account prior to the declaration of the result.On declaration of the result of the written examination, viva-voce washeld and there was variation in the merit position of the candidates in thecombined marks as compared with just the written examination. TheDappellants all belong to the General category and their merit positionwas beyond the ten (10) candidates whose recruitment was envisagedunder the advertisement. It may be noted that one of the SC candidatesobtained marks to merit consideration without the benefit of reservationand consequently nine (9) of the General category candidates wererecruited against the ten (10) posts.E

4. There were five developments, which need to be taken note of,in view of the pleas advanced on behalf of the appellants. The first wasthe elevation of Justice Sabina as a Judge of the High Court of Punjab &Haryana on 12.03.2008, and, thus, the submission of the appellants isthat one more seat for General category became available post issuanceFof the advertisement and since the number of posts were subject tovariation, this vacancy should be made available to the General category.The second is arising from a defect in the advertisement inasmuch as noreservation for ex-serviceman was envisaged, as Rule 3 of the PunjabRecruitment of Ex-Servicemen Rules, 1982 (hereinafter referred to asGthe ‘Ex-Servicemen Rules’) exempted the applicability of these Rulesto the Punjab Vidhan Sabha Secretariat Service and the Punjab SuperiorJudicial Service. The High Court also took cognizance of this fact and,thus, the reservation being not in accordance with law, resolvedappropriately in a meeting of the Judges held on 25.07.2008. The meetingnoted that the vacancy, which was advertised as Ex-ServicemanH

(General) category should also go to the General category. Thus, asecond seat as per the appellants became available for the Generalcategory. The third is the absorption of two Presiding Officers of FastTrack courts against which vacancies for direct recruitment purportedlyunder Rule 7(2) of the said Rules even though the present recruitmentexercise was under Rule 7(3) of the said Rules. Fourthly, no candidatewas available in the physically challenged category, but instead of carryingit to the General category as per Note 4 of the advertisement, the vacancywas carried forward. Finally, the advertisement was issued on the basisof a total cadre strength of 107 posts, while actually the total cadrestrength on the date of advertisement was 111, i.e., there were fourmore posts, which could have been filled in and the General categorywould have got two more seats and two more candidates could havebeen absorbed in the General category.

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5. The endeavor of the appellants by filing writ petitions beforethe Punjab and Haryana High Court, however, was not successful andin terms of the common judgment dated 19.08.2013 all the writ petitionsDwere dismissed. In the course of the last decade since the recruitmentprocess took place in the year 2008, similar recruitment of advocateswas carried out five times through different notifications. Three of thecandidates before this Court took their chances in different examinations.The details of these are disclosed as per Annexure A to the additionalEaffidavit filed on behalf of respondent No.2/the High Court, which isreproduced hereinunder:

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SUPREME COURT REPORTS

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A6. The appellants, however, contend that if they have beenwrongfully excluded, whether they appeared in a subsequent examinationor not, or whether they were successful or not in the subsequentexamination, would not be material. It is also the case of the appellantsthat though a decade has passed since the examination was held, thedelays in the adjudication process should not deprive them of beingBappointed even if there have been subsequent recruitments, and if thataspect weighs with the Court, the relief can be suitably modified quathe issue of seniority.

A.Effect of elevation of a Judge from the category of directadvocate recruits to the High Court:C

7. The elevation of Justice Sabina on 12.03.2008 is a matter offact. It is not also in dispute that the advertisement was issued prior tosuch elevation on 02.02.2008 and the advertisement noted the possibilityof the number of posts being subject to variation. However, in our view,this would not mandate the inclusion of a post which fell vacantDsubsequently, nor can there be even otherwise a compulsion on the HighCourt to necessarily expand the scope of the number of persons to berecruited. In fact, the persons, who may have become eligible post theadvertisement would suffer a prejudice were subsequent vacant poststo be included against an earlier advertisement. The plea based on theEvacancy of this seat is, thus, completely devoid of merit.

B.The provision wrongfully made in the advertisementreserving two seats for Ex-Servicemen:

8. The advertisement dated 02.02.2008 did make a provision fortwo seats for Ex-Servicemen – one in General category and one fromFBackward Class category. However, such a reservation had no forceof law in view of Rule 3 of the Ex-Servicemen Rules, carving out anexception in respect of the Punjab Vidhan Sabha Secretariat Serviceand the Punjab Superior Judicial Service. The High Court having noticedthis fact, abandoned the process of recruitment for this category in termsGof the minutes of meeting dated 25.07.2008. It did initially resolve thatthe vacancy advertised for Ex-Servicemen (General) would also go tothe General category but ultimately that is not what was done. The saidseat was, however, made available for absorption of the Judges fromthe Fast Track court. In fact, there were two Judges recruited from theFast Track court – one against this post and the other against the vacancy,H

which arose on account of the elevation of Justice Sabina through adifferent exercise, which will be discussed later on.

C.The recruitment of two Judges from Fast Track Courts:

9. The Fast Track courts owe their origin to the allocation of fundsunder the 11[th] Finance Commission to deal with long pending cases,particularly Sessions cases. A time bound utilization within a period offive years was envisaged and, thus, various State Governments wererequired to take necessary steps to establish such courts. We may noticehere that obviously the regular cadre strength of Judges has been awfullyinadequate to meet the pendency and inflow of cases, one methodologycould be to increase the cadre strength itself. There have been periodicreviews for this purpose in the last few years. However, not havingdone that at the relevant stage, a short cut method was envisaged to, atleast, temporarily create the Fast Track courts for certain category ofcases. However, since the fund from the Central Government ceasedafter five years, the question arose as to what was to happen to theseFast Track courts especially keeping in mind that a number of the presidingofficers had been appointed directly from the Bar. The challenge laid tothe constitutionality of this scheme for Fast Track courts was repelled inBrij Mohan Lal v. Union of India & Ors.[1]. In para 10 of the judgment,directions were issued to deal with the initial teething problems of theScheme. Direction No.4, after the earlier directions recorded thatpreference will be given to appointment on ad hoc promotions, followedby retired Judges, stipulated as under:

“4. The third preference shall be given to members of the Bar fordirect appointment in these Courts. They should be preferably inthe age group of 35-45 years, so that they could aspire to continueagainst the regular posts if the Fast Track Courts cease to function.The question of their continuance in service shall be reviewedperiodically by the High Court based on their performance. Theymay be absorbed in regular vacancies, if subsequent recruitmenttakes place and their performance in the Fast Track Courts isfound satisfactory. For the initial selection, the High Court shalladopt such methods of selection as are normally followed forselection of members of the Bar as direct recruits to the Superior/Higher Judicial Services.”

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A10. The stand of the High Court is that it is in furtherance of theaforesaid judgment that a provision was made for absorption of the Judgesappointed to the Fast Track court on a permanent basis.

11. The appointment was made vide order dated 20.06.2008 andtwo such Judges in the Fast Track court against the two vacancies, i.e.,Bone of Ex-Servicemen (General) category and the second which occurredon elevation of Justice Sabina from the subordinate judiciary to the HighCourt. Such selection was preceded by a Selection Committeeconstituted by the High Court in order to assess the suitability forabsorption of the Judges. The Judges were marked on a benchmark of100 marks, out of which 50 marks were from written test, 25 marks forCviva-voce and 25 marks for performance as a Judge of the Fast Trackcourt. These two obtained the highest marks qua the vacancies forPunjab as recorded in the minutes of the meeting dated 18.03.2008.

12. The aforesaid shows that a completely different process wasfollowed for absorption of the Judges from the Fast Track court. TheDmoot point, however, remains whether one of the vacancies in theadvertisement, which arose ought to have been utilized for absorption ofthese Fast Track court Judges, which, in turn, affected the senior-most,i.e., Gurmeet Pal Singh. In a way, Gurmeet Pal Singh suffered theconsequences both of a more meritorious candidate from the SC categoryEbeing found eligible, because of which he went one slot down. But thenit is a well-established legal position that members belonging to thereserved category, who get selected in open competition on the basis oftheir merit have a right to be included in the General/Unreserved categoryand are not to be included in the quota reserved for the SC category(Samta Andolan Samiti v. Union of India[2]).F

13. Insofar as the adjustment against the seat which was madeavailable on account of the wrongful reservation for Ex-Servicemen,we cannot lose sight of the fact that the said Mr. Gurmeet Pal Singhmade an endeavour by taking three successive subsequent exams heldon 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful (chartGreproduced above). Not only that, there has been a passage of a decadesince the initial recruitment and though the appellants cannot be blamedfor judicial delays, it is really not possible to put the clock back for all theaforesaid reasons.

2 (2014) 14 SCC 745 – para 16H

14. We are, thus, not inclined on this aspect to interfere with therecruitment process.

D.Non-availability of candidate with disability:

15. The plea based on an inherent right in view of the wording ofthe advertisement qua the seat meant for person with disability when nocandidate is available is intrinsically flawed. The provisions of the Personswith Disabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995, are towards the social objective ofaccommodating people with physical disability. We find nothing wrongin carrying forward the vacancy for the future.

E. The larger recruitment was possible since the cadrestrength was more:

E. The larger recruitment was possible since the cadrestrength was more:

16. The undisputed fact is that the advertisement was issued onthe basis of a cadre strength of 107. Twenty-seven (27) posts wouldarise in the category in question and six (6) were already occupied and,thus, the advertisement was issued for twenty-one (21) posts. Theadvertisement was not challenged by any of the appellants. It is a wellsettled principle of law that when a candidate appears in an examinationwithout objection and is subsequently found to be not successful achallenge to the process is precluded. In a recent judgment in AshokKumar & Anr. v. State of Bihar & Ors.[3], this principle has been re-emphasised by referring to the earlier judgments on this point startingfrom Chandra Prakash Tiwari v. Shakuntala Shukla[4]. Thus,undoubtedly the appellants not having challenged the advertisement atthe relevant point of time, cannot be permitted to contend that having notmade the mark in the cut off for the select list, something must be doneto somehow accommodate them. The plea of the existence of a largernumber of posts is in this direction. No doubt every endeavor should bemade to fill up the existing vacancies and prospective vacancies keepingin mind the judgment in Malik Mazhar Sultan & Anr. v. U.P. PublicService Commission & Ors.[5]. However, there cannot be a blanketproposition that the advertisement is defective merely because everyvacancy which existed or which is contemplated is not taken into account.Certainly, a subsequent vacancy arising from an elevation can hardly betreated as in contemplation.

3 (2017) 4 SCC 357

4 (2002) 6 SCC 127

5 (2008) 17 SCC 703

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A17. We agree with the contention advanced by learned counselappearing for the High Court, more so when merely because the nameof a candidate finds a place in the select merit list does not given anindefeasible right to appointment as well and it is always open to noteven fill up a vacancy. (Kulwinder Pal Singh & Anr. v. State of Punjab& Ors.[6]).B

18. It is also the plea of learned counsel appearing for respondentNo.2 that the cadre consisted of only 107 posts. This is stated to bequite apparent from the gradation and distribution list of officers of TheJudicial Department, Punjab corrected up to 01.01.2008. The strength,including permanent and temporary has been mentioned as 109.CHowever, at serial No.6, under the temporary post are two temporaryposts of Additional District & Sessions Judges sanctioned by the PunjabGovernment letter dated 27.01.2004 for setting up of special courts atPatiala and Jalandhar. These courts were actually not set up till muchlater. It was also contended that even if the cadre strength was 109,Dthen the particular category would be entitled to 27.25 (25% of 109 =

27.25) posts, with this six (6) posts filled up. Therefore, once again, onewould come to 21 posts. The cadre strength of 111 relied upon by theappellants is available from the Gradation and Distribution List of Officersof the Judicial Department, Punjab corrected up to 31.01.2010, i.e., whichwas subsequent to the advertisement and the recruitment process. Thus,Ethe appellants cannot get any relief even on this ground.

Conclusion:

19. We have dealt with the pleas advanced before us on behalf ofthe appellants. We have, of course, perused the impugned order. WeFmay note that the line of attack before the High Court appeared majorlyto be on different pleas, though it cannot be said that the issues raisedbefore us have been raised for the first time. The focus was, however,elsewhere. We have, thus, dealt with the pleas, which have been advancedbefore us.

G20. We are, thus, unable to grant any relief to the appellants in thepresent case.

21. We may, however, note in the end that one of the appellants,Ms. Kadambini, Advocate, argued the appeal in person and, withouttaking anything away from the endeavour of the other learned senior 6 (2016) 6 SCC 532H

GURMEET PAL SINGH v. STATE OF PUNJAB[SANJAY KISHAN KAUL, J.]

counsel, did a commendable job. However, that cannot be a ground toaccommodate the said appellant.

22. The appeals are accordingly dismissed leaving the parties tobear their own costs.

Divya Pandey

Appeals dismissed.

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