IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1624 of 2008 alongwith CWP No.1122 of 2009. Judgment reserved on: 4.8.2009. Date of Decision: 17.9.2009. Amardeep Singh (In both the cases) …Petitioner. Versus. State of H.P. and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Mr.Rajiv Atma Ram, Senior Advocate with M/s. Naresh Thakur and Puneet Gupta Advocates. For the Respondent(s): M/s. R.M. Bisht & Vikas Rathore, Dy.A.Gs. For respondents State. Mr.D.K. Khanna, counsel for HPPSC. Mr.Ajay Mohan Goel, counsel for H.P. High Court. Deepak Gupta, J. These two writ petitions are being disposed of by a common judgment since similar questions of law and fact are involved in the same. 2 Briefly stated, the facts of the case are that the Himachal Pradesh Public Service Commission (HPPSC) issued advertisement No.IV/2007 inviting applications for filling up 12 vacancies of Civil Judges (Junior Division). The advertisement specified that out of these vacancies two are reserved for scheduled castes, one for scheduled tribe and four for other backward classes candidates of H.P. Resultantly, five vacancies could be said to fall to the share of the general category. The petitioner is a Law Graduate and obtained a Degree in law from Punjab University in the year 2004. Pursuant to the aforesaid advertisement he applied for the post of Civil Judge (Junior Division) in the general category. He qualified the preliminary examination held on 23rd September, 2007. He was, therefore, invited to take the final written examination held w.e.f. 29th October, 2007 to 31st October, 2007. The petitioner qualified the written examination also and was called for interview. The interviews were held on 9th and 10th of January, 2008. Result of the examination was declared by the HPPSC and a Press Note was issued which reads as follows: “On the basis of Himachal Pradesh Judicial Service Competitive (Main) Examination-2007-II held w.e.f. 29th October to 31st October, 2007, followed by interview conducted on 9th January & 10th January, 2008, the following candidates in order of merit have been selected for the post of Civil Judge (Junior Division) in the Department of Home, Government of Himachal Pradesh:- Sr.No. Roll Number Name of the candidate 1. 134 Sh.Rahul Bishnoi 3 2. 373 Sh.Mohit Bansal 3. 222 Sh.Nitin Mittal 4. 220 Sh.Neeraj Goyal 5. 1005 Sh.Amardeep Singh” On 11th January, 2008 a letter was sent by the Principal Secretary (Home) to the Government of Himachal Pradesh to the selected candidates including the present petitioner, relevant portion of which reads as follows: “I am directed to state that your name has been recommended by the H.P. Public Service Commission for appointment to the post of Civil Judge (Junior Division) in the pay scale of Rs.9000-14450. You are, therefore, requested to fill the enclosed forms in duplicate alongwith two passport size photographs and send the same to this department immediately so that appointment orders could be issued accordingly.” On 12th February, 2008 a letter was addressed to the petitioner by the Secretary, H.P. Public Service Commission that his name has been recommended for appointment of the Civil Judge (Junior Division) but letter of appointment shall be issued to him only if the Government is satisfied that he is in good mental and bodily health. According to the petitioner though he made several requests in the matter, no letter of appointment was ever issued to him. In the meantime the respondent No.2 issued a fresh advertisement being advertisement No.XII of 2007 on 2.2.2008 inviting applications for filling up the vacancies of Civil Judges (Junior Divisions). In this advertisement it was mentioned that there were only seven clear-cut vacancies out of which three fell to the category of scheduled castes, 4 one for scheduled tribe and three to the category of OBC. Four anticipated vacancies on account of retirement were also advertised out of which one post fell to the category of scheduled castes, one to OBC and two to the general category. A further 10% anticipated vacancies being five in number were also advertised out of which two were for general category, one for scheduled caste, one for scheduled tribe and one for OBC. The petitioner on 8th September, 2008 filed CWP No.1624 of 2008 in which he prayed that since he had been selected by the HPPSC, a writ in the nature of mandamus be issued directing the respondents to issue a letter of appointment to him. He also prayed that selections may not be held pursuant to the advertisement issued on 2nd February, 2008. The State of Himachal Pradesh filed reply to the writ petition urging therein that when appointments were to be made on the basis of the recommendations made by the HPPSC vide its letter dated 11.1.2008 the matter was taken up with the Registrar General of the High Court of Himachal Pradesh vide letter dated 17.1.2008 so as to clarify and confirm the vacancy position. The Registrar responded to the said letter on 30th January, 2008 and stated that there are only three clear-cut vacancies of general category in the cadre of Civil Judge (Junior Division) against which appointments can be made and other 5 two vacancies were anticipated on account of establishment of new courts which did not happen. As noted above five persons were selected by the HPPSC. Candidate at Sr.No.1 Rahul Bishnoi did not join. Thereafter, candidates at Sr.Nos.2 to 4 were offered appointments. According to the respondents since no vacancy for the general category was available, therefore, appointment could not be offered to the petitioner. It was further averred that when requisition was sent to the HPPSC it was made clear that there are only 10 clear-cut vacancies out of which three fell to the general category and other two were only anticipated vacancies. The stand of the High Court is virtually similar to the stand of the State. According to the High Court a communication was sent on 25th July, 2007 by the Registrar General of the High Court to the Secretary of the HPPSC informing him that there were only 10 clear- cut vacancies and two vacancies are anticipated to arise up to 31.12.2007. It would not be out of place to mention that one CWP No.324 of 2003 titled Anil Chauhan vs. State of H.P. and others was pending before this Court wherein the grievance of the petitioner was that the State is not filling up the vacancies of Civil Judges (Junior Division) and various orders were passed in the said case from time to time. The Court in its order dated 24.7.2007 recorded as follows: “…. We are told at the bar that at present about 12 vacancies of Civil Judges (Junior Divisions) are in existence. It means that in a small State 6 like Himachal Pradesh where the total sanctioned strength of the cadre of Civil Judges (Junior Divisions) is just about 49+5, almost 25% of this strength is presently lying vacant. This surely is against public interest.” It is obvious that on the judicial side this court was informed that there are 12 vacancies actually existing . Thereafter, the High Court set down a time table for holding the exams etc. and it was pursuant to these orders that the advertisement was issued and selections made reference to which has already been made hereinabove. After the respondents took the plea that only three vacancies for general category were available as against five which were shown in the advertisement, the petitioner filed CWP No.1122 of 2009. The grievance made by the petitioner is that the respondents have wrongly calculated the vacancies for the reserved categories. According to the petitioner, reservation cannot exceed 50% of the posts available. It is further averred that the posts/vacancies reserved for scheduled castes and scheduled tribes and other backward classes cannot be carried further for more than three years whereafter they should have been treated to be de-reserved. The petitioner has made reference to the advertisement issued in the year 2006 in which 10 vacancies/posts of Civil Judges (Junior Division) were shown out of 43 against the General category, one for SC two for ST and 3 for OBCs. Admittedly no posts in the reserved category were filled up. Thereafter, the Advertisement No.1/2007 was issued in which 12 vacancies were 7 notified, five for general category, two for SC, one for ST and four for OBCs. No posts were filled up and therefore pursuant to the orders of this Court fresh Advertisement No.IV/2007 was issued again advertising 12 posts. Thereafter, another advertisement was issued on 2.2.2008 in which all the seven clear-cut vacancies were shown to be reserved three for SC, one for ST and four for OBCs and out of the four anticipated vacancies one was shown reserved for SC, one for OBC and two were in the General Category. The petitioner alleges that all the clear-cut vacancies could not have been reserved living none to the general category as this will amount to 100% reservation. Even in respect of anticipated vacancies there were more than 50% reservation. Even if all the vacancies i.e. 16 are taken into consideration only four were kept for general category and reservation therefore would amount to more than 50%. Another advertisement has been issued on 1st February, 2009. In this advertisement also only four clear-cut vacancies have been shown; one for ST and three for OBCs. Six anticipated vacancies have also been reflected in the advertisement and five anticipated vacancies on account of promotions etc. but no break up of the anticipated vacancies has been given. Therefore, as far as the clear- cut vacancies are concerned there is 100% reservation. According to the petitioner, the State has made excessive reservation and has carried forward the reservation for scheduled 8 castes and scheduled tribes and other backward classes for more than three years which is not permissible. The petitioner has challenged the validity of the circular dated 26.7.1989 issued by the State of H.P. whereby posts falling to the category of scheduled castes and scheduled tribes can be carried forward indefinitely. The State in its reply has not disputed the factual aspect of the matter. However, according to the State reservation has been made strictly in accordance with the Rules and Regulations and the law laid down by the Apex Court. According to the State it is entitled to carry forward the vacancies for the reserved categories indefinitely and there can be 100% reservation in respect of the carry-forward reservation in view of Article 16(4B) of the Constitution. The stand of the State is that it is following the post based roster which is in line with the judgment of the Apex Court in R.K. Sabharwal and others vs. State of Punjab and others, (1995) 2 SCC 745. The stand of the High Court is similar to the stand of the State. On 5th May, 2009 while issuing notice in CWP No.1122 of 2009 we had directed the respondents to file reply in which respondents were specifically directed to deal with the observations made by the Apex Court in para 100 of the judgment rendered by it in M. Nagaraj & others vs. Union of India and others, (2006) 8 SCC 212. 9 We heard the matter in part on 7th July, 2009 and had directed both the State as well as the High Court to file detailed affidavits giving the vacancy position. In the affidavit filed in response to the orders of the Court it has been stated that the High Court has not initiated any steps for fixing a time cap as indicated in M. Nagaraj’s judgment. The explanation of the High Court is that it is for the State of Himachal Pradesh to comply with the directions made by the Apex Court. The High Court has clearly washed its hands of the matter and according to it, it is the duty of the State Government to decide as to from which category the vacant posts are to be filled up. However, the chart of appointments made in the H.P. Judicial Service has been filed. The stand of the State in the affidavit is that it does not intend to put any time cap to fill the reserved vacancies because this will amount to de-reservation of the posts. According to the State placing of any time cap will defeat the very objective of providing facilities and opportunities to secure adequate representation to the scheduled castes and scheduled tribes and other backward classes. Article 16 of the Constitution provides that there should be equality of opportunity for all citizens in matters relating to appointments. Article 16(2) lays down that no citizen shall be discriminated against in respect of employment under the State on account of religion, race, caste, sex etc. Article 16(4) provides that 10 nothing shall prevent the State for making provision for reservation of appointment of posts in favour of any backward class or citizen. In Indra Sawhney vs. Union of India, 1992 Supp. (3) SCC 217, the scope of Article 16(4) was examined in detail by a Constitution Bench of the Apex Court. It was held that reservation could not exceed 50%. It was further held that reservation could not extend to promotions. It was also held that the 50% rule would be applicable to each year and therefore not more than 50% of the vacancies falling vacant in a particular year could be reserved. In R.K. Sabharwal’s case which related to promotions, the issue was with regard to the operation of roster system. The Apex Court held that the entire cadre strength should be taken into account to determine whether reservation up to the required limit had been reached. It was also held that the rule of 50% laid down in Indra Sawhney’s case applied only to initial appointments and once the entire cadre strength was filled up it would by itself ensure that reservation remained within 50%. Once 100% of the vacancies had been filled up, each post gets earmarked for a particular category of candidate and when a post fell vacant then it would be filled in by appointing a candidate belonging to the same category as the candidate who vacated the post. This is also referred to as the replacement theory. 11 Thereafter, the Parliament amended the Constitution. By the Constitution (77th Amendment) Act, 1995 Clause (4A) was inserted in Article 16 which permitted the State to make provision for reservation in matters of promotion. The Constitution (81st Amendment) Act, 2000 came into place on 9.6.2000 by which Clause (4B) was inserted in Article 16 of the Constitution whereby the rule of 50% would not apply to the backlog or carried forward vacancies. By the Constitution (85th Amendment) Act, 2001 Clause (4A) was amended and the State was even permitted to grant consequential seniority in promotions. After the aforesaid amendments Article 16(4), 16(4A) and 16(4B) read as follows: “16. Equality of opportunity in matters of public employment. (1) xxxxxxxx (2) xxxxxxx (3) xxxxxxx (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward class of citizen which, in the opinion of the State, is not adequately represented in the services under the State. (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled 12 up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.” At this stage it would also be pertinent to refer to certain Circulars issued by the State of Himachal Pradesh in respect to carrying forward/de-reservation of vacancies reserved for scheduled castes and scheduled tribes. Initially instructions were issued by the State on 4.2.1974 in which it was clearly mentioned that posts reserved for backward classes could be carry forward only for three years in the absence of qualified candidates belonging to such classes. Thereafter, instructions were issued on 26.7.1989. These instructions related only to the scheduled castes and scheduled tribes candidates. These instructions provide that as far as posts meant for scheduled castes and scheduled tribes are concerned there shall be no de- reservation of such posts. The Government of Himachal Pradesh vide letter dated 26.7.1989 has prohibited de-reservation of vacancies reserved for scheduled castes and scheduled tribes with effect from the said date. Consequently, instructions relating to de-reservation and carry forward in the category of scheduled castes, scheduled tribes and other backward classes now read as follows: “20.14.1 Carry forward duration and restriction on maximum reservation at a time of recruitment. 13 If a sufficient number of candidates fit for appointment against vacancies reserved for Scheduled Castes/Scheduled Tribes/Backward Classes/ Physically Handicapped/ Ex-Servicemen etc. are not forthcoming, such vacancies can be filled from amongst candidates other than those belonging to the category for which the posts are reserved after following the procedure prescribed for de-reservation wherever applicable. The vacancies so filled in are required to be carried forward in the case of direct recruitment as under:- (i)Scheduled Castes:} Upto 24.3.1970 for a period of two subsequent (ii)Scheduled Tribes:} recruitment years and from 25.3.1970 to 25.7.1989 for a period of three subsequent recruitment years. From 26.7.1989 there is no de-reservation and no question of carry forward. (iii)Backward Classes: For a period of three subsequent recruitment years.” As per these instructions, the posts reserved for scheduled castes and scheduled tribes could not be de-reserved and as far as backward classes are concerned the carry forward was permitted for a period of 3 years. The constitutional validity of the amendments made by the Parliament to Article 16 of the Constitution by the amendment Acts referred to hereinabove was challenged before the Apex court in M. Nagraj’s case (supra). The Apex Court in an extremely erudite judgment examined the entire width and amplitude of the right to equal opportunity in public employment. It referred to all the relevant law in this regard. Justice Kapadia speaking for the Bench held that the concept of equality is the essence of democracy and a basic feature of the Constitution. The following observations are relevant for our purpose: 14 “33.From these observations, which are binding on us, the principle which emerges is that “equality” is the essence of democracy and, accordingly a basic feature of the Constitution. This test is very important….. 34.However, there is a difference between formal equality and egalitarian equality which will be discussed later on.” The Apex court held that public appointment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. Therefore, it held that the conflicting claims of individual rights under Article 16(1) and the preferential treatment given to the backward classes has to be balanced. Both the claims have a particular object to be achieved. The question is of optimization of these conflicting interests and claims. The court further went on to hold that while making provision for reservation a stable equilibrium has to be drawn between justice to the backwards, equity for the forwards and efficiency for the entire system. Dealing with the amendments made to Article 16 which were impugned before it, the Apex Court held as follows: “83.In our view, the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based.” While dealing with Article 16(4B) which lifted the 50% cap on carry forward vacancies the Apex Court in paragraph 100 held as follows: “100. As stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling-limit of 50% on current vacancies continues to 15 remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation. What is stated hereinabove is borne out by Service Rules in some of the States where the carry-over rule does not extend beyond three years.” Dealing with the constitutional amendments as a whole the Apex Court held as follows: “102…………Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that backward class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, 'backwardness' and 'inadequacy of representation'. As stated above equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the concerned State fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained………” The Apex Court further went on to hold as under: “104……..Moreover, Article 16(4A) and Article 16(4B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied-with by the States, the provision of reservation cannot be faulted. 16 Articles 16(4A) and 16(4B) are classifications within the principle of equality under Article 16(4).” The Apex Court in M.Nagaraj’s case (supra) also held that the power given to make reservation in favour of the backward classes can be exercised if the State has quantifiable data to show backwardness and inadequacy of representation in the services of the State. It however added that the reservations can only be made keeping in mind the maintenance of efficiency. The concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. The Apex Court while upholding the amendments made observed that equity is not violated by mere conferment of powers but it is breached by arbitrary exercise of the power conferred. The Apex Court held that any law made by the State would have to conform to the