[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision : May 29, 2012 [ENTITY], Petitioner v. [ENTITY] and others, Respondents CORAM : HON'BLE MR.JUSTICE [ENTITY] Present : Mr. [ENTITY], Advocate for the petitioner. Ms. [ENTITY], DAG Punjab for respondents No.1 to 3. None for the private respondents. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? [ENTITY], J (Oral)
The grievance raised in this writ petition is that the petitioner had applied for the post of Constable in the 'Scheduled Caste Others' Category' and was placed at Sr. No.3 in the waiting list. Among the selected candidates of this category, four candidates i.e candidates at Sr. Nos. 13, 25, 33 and 45 obtained higher merit than the last four candidates selected in the general category. It is, therefore, prayed that the above mentioned four candidates of the 'Scheduled Caste Others' Category' have to be shifted to the general category and once that happens, the petitioner would be entitled for selection.
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Counsel for the petitioner has argued that while making selections for male Constable in Hoshiarpur this principle has been followed but while making present selections, the same has not been followed.
In the written statement, these facts are not disputed. The non- transference of the reserved category candidates who have secured higher merit in the general category candidates is sought to be justified on the ground that if this is done, the roster point system would be disturbed and the transferred candidates would be put to a resultant loss since they would come much below the roster points otherwise available to them.
In [PRECEDENT], the Hon'ble Supreme Court has held as follows :-
"14. In R.K.Sabharwal v. [ENTITY], 1995(2) SCT 646 (SC), the Constitution Bench of this Court considered the question of appointment and promotion and roster points vis.a.vis reservation and held thus :-
`When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve point are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the research posts. On the other hand the reserve category candidates can compete for the non- reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. [SECTION] of the [ACT] permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular [CASE NUMBER] 3
Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.
17 But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more dis-advantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available.
In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he [CASE NUMBER] 4
will be deemed to have been admitted as a open category candidate and not as a reserved category candidate "
Further, in [PRECEDENT], the Hon'ble Supreme Court held as follows :-
"Xx xx xx xx A perusal of sub-clause (iv) of clause-III discloses that wherever any reserved candidates, who were otherwise eligible to be admitted against Open Category seats, are admitted against reserved seats, the corresponding number of seats shall be made available to the said category, by displacing the Open Category candidates in the reverse order. This arrangement, in our view, fully accords with the principle laid down in [PRECEDENT]'s case (supra). It also strikes a decent balance between two conflicting situations that were pointed out by the Supreme Court, in that case."
55. In the ultimate analysis, the number of candidates belonging to a particular reserved category admitted to a course, would be those, who get admissions on the basis of merit as well as those who get on account of reservation. Clause III(iv) of G.O.Ms No.123, ensures that no reserved category loses even a single seat on account of adoption of roster. If the contention of the petitioners is to be accepted, the reservation tends to become an end by itself, and not a means to achieve and ensure equality. The principle laid down by the Supreme Court in [PRECEDENT]'s case (supra) applies, may be in a modified form, to the procedure adopted under G.O.Ms No.123; and clause III(iv) of the said G.O had ensured compliance therewith."
Counsel for the respondents has not been able to cite any contrary judgment.
Resultantly, this writ petition is allowed. Respondents No.1 to 3 are directed to re-compute the merit in the light of the above judgments of the Hon'ble Supreme Court and consequently offer fresh appointments to those who come on merit. Needless to say that if any selected candidate [CASE NUMBER] 5
has to be displaced, it would be done only after issuing notice to him. Let the necessary exercise be concluded within a period of four months from the receipt of a certified copy of this order.
No order as to costs.
( [ENTITY] ) May 29, 2012. JUDGE `kk'