GAGANDEEP SINGH versus THE STATE OF PUNJAB & ORS. on 27 November 2018

[2018] 14 S.C.R. 351

GAGANDEEP SINGH

v.

THE STATE OF PUNJAB & ORS.

(Civil Appeal No. 11365 of 2018)

NOVEMBER 27, 2018

[KURIAN JOSEPH AND S. ABDUL NAZEER, JJ.]

Service Law – Appointment against reserved vacancy – Rightto – Appellant belonging to the reserved category of Balmiki/MajbhiSikh was at no.3 in the select list for appointment to the post ofDistrict Programme Officer – One ‘GS’ appointed against thereserved vacancy for Balmiki/Majbhi Sikh, resigned after a year –Writ petition filed by the appellant contending that in terms of theinstructions issued by the Department, the vacancy created shouldbe filled up by the next available person from the same communityand the no.2 candidate not being interested, the appellant shouldbe appointed – Department contended that once the appointmentwas made, the reserved point was consumed, hence the appellantcannot be considered – Writ petition dismissed – Held: No candidatehas a vested right for appointment – But at the same time, theappointing authority cannot frustrate the whole purpose ofpreparation of a select list – If a vacancy had arisen before theexpiry of the select list, going by the instructions, the next availablecandidate in the select list had a legitimate expectation for beingconsidered for appointment – Vacancy had arisen in 2014 beforethe commencement of fresh selection in 2016 – Even for thesubsequent selection, the post reserved for Balmiki/Majbhi Sikhwas not notified – Therefore, the slot reserved for Balmiki/MajbhiSikh was still available and as per the instructions, the State has tofill up that vacancy from the reserved community from the merit list– In case No. 2 is not interested, naturally it will go to the appellant– Respondents to make appointment in respect of Valmiki/MajbhiSikh from the merit list published on 20.06.2012 – Doctrine/Maxims– Doctrine of Legitimate Expectation.

Disposing of the appeal, the Court

HELD: 1.1 No candidate has a vested right for appointment.But at the same time, the appointing authority cannot frustratethe whole instruction behind and purpose of preparation of a selectlist. If a vacancy had arisen before the expiry of the list, going by

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352 SUPREME COURT REPORTS [2018] 14 S.C.R.

Athe instruction, the next available candidate in the select list hada legitimate expectation and claim for being considered forappointment. The vacancy had arisen in 2014 before thecommencement of fresh selection in 2016. Even for thesubsequent selection, the post reserved for Balmiki/Majbhi Sikhwas not notified. The reservation is for other Scheduled Castes.BThe slot reserved for Balmiki/Majbhi Sikh is still available andas per the instruction, the same has to be filled up from the meritlist. The State pointed out that appellant was not the next personfor consideration. It is one ‘MS’ (No.2) and he had also given arepresentation. Since the slot is available, the State has to fill upCthat vacancy from the reserved community from the merit list. Incase No. 2 is not interested, naturally it will go to the appellant.[Para 4][353-G-H; 354-A-C]

1.2 The respondents are directed to make appointment inrespect of Valmiki/Majbhi Sikh from the merit list published onD20.06.2012. Needful be done within a period of two months.[Para 5][354-C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11365of 2018.

From the Judgment and Order dated 22.03.2017 of the High CourtEof Punjab and Haryana at Chandigarh in LPA No. 938 of 2016 (O&M).R. K. Kapoor, Ms. Rekha Giri, Ms. Kheyali, Anis Ahmed Khan,Advs. for the Appellant.

Ms. Uttara Babbar, Ms. Bhavana Duhoon,, Advs. for theRespondents.F

The Judgment of the Court was delivered by KURIAN, J. 1. Leave granted.

2. Appellant was No.3 in the select list for appointment to the postof District Programme Officer. He belongs to the reserved category ofGBalmiki/Majbhi Sikh. The selection commenced with the advertisementby the Punjab Public Service Commission on 21.12.2010. The writtenexamination was conducted in the year 2012. One Gurpreet Singh wasappointed against the reserved vacancy (Balmiki/Majbhi Sikh). Afterone year he resigned from the post on 25.04.2014. According to theHappellant the vacancy thus created should be filled up by the next available person from the same community. It is also the case of the appellant thatthough the appellant is No. 3 in the select list, No.2 (Manjinder Singh)not being interested and not having pursued the litigation, the appellantshould be appointed. The Department rejected the claim of the appellantstating that once an appointment is made, the reserved point wasconsumed and hence the appellant cannot be considered. Hence, hefiled a writ petition before the High Court. The learned Single Judgedismissed the writ petition holding that the appellant did not have a legalright to claim appointment and that the vacancy had to be re-advertised.

3. In the intra court appeal, as per the impugned judgment, theDivision Bench took note of the submission that the process forsubsequent selection had been initiated and thus dismissed the appeal.

4. It is the contention of the appellant that as per the guidelinesissued by the welfare Department dated 08.04.1980 read with subsequentinstruction dated 10.01.1996, the point filled up by a candidate belongingto the reserved category and subsequently vacated on account ofresignation or otherwise cannot be considered to be consumed. It is tobe filled up out of the candidates available in the select list. To quote therelevant para from the instructions dated 10.01.1996:

“According to these instructions, the point filled up by a candidatebelonging to reserved category and subsequently vacated onaccount of resignation or otherwise by one of the incumbents isnot considered to be consumed. This point is available for thereserved categories and is required to be filled up out of thecandidates available as a result of selection in order of theirseniority.”

It is also stated in the instruction that “… there is no discretionwith the Administrative Department in this regard”. However, thecontention of the State is that the merit list having outlived its life onaccount of the appointment, nobody can claim appointment from such alist. We are afraid this contention cannot be appreciated. No doubt, nocandidate has a vested right for appointment. But at the same time, theappointing authority cannot frustrate the whole instruction behind andpurpose of preparation of a select list. If a vacancy had arisen beforethe expiry of the list, going by the instruction, the next available candidatein the select list had a legitimate expectation and claim for beingconsidered for appointment. The vacancy had arisen in 2014 before the A

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354 SUPREME COURT REPORTS [2018] 14 S.C.R.

Acommencement of fresh selection in 2016. Even for the subsequentselection, the post reserved for Balmiki/Majbhi Sikh is not notified. Thereservation is for other Scheduled Castes. Learned counsel for the Statehas stated that vacancy of Balmiki/Majbhi Sikh has not been filled upand it is still available. Therefore, the slot reserved for Balmiki/MajbhiSikh is still available and as per the instruction which we have extractedBabove, the same has to be filled up from the merit list. In the additionalaffidavit filed by the State it is pointed out that appellant was not the nextperson for consideration. It is one Maninder Singh (No.2) and he hadalso given a representation. Since the slot is available, the State has tofill up that vacancy from the reserved community from the merit list. InCcase No. 2 is not interested, naturally it will go to the appellant.

5. The appeal is disposed of with the direction to the respondentsto make appointment in respect of Valmiki/Majbhi Sikh from the meritlist published on 20.06.2012. Needful be done within a period of twomonths. In order to avoid any dispute on seniority, it is made clear thatDthe incumbent concerned will get seniority only from the date ofappointment. No costs.

Divya Pandey

Appeal disposed of.

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