CWP NO.16242 OF 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 13.1.2009 1.CWP No.16242 of 2008 Suresh Kumar and another ...Petitioners VERSUS State of Punjab & Others …Respondents 2.CWP No.16391 of 2008 Gagandeep Singh & Others ...Petitioners VERSUS State of Punjab & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Naresh Kaushal, Advocate Mr.Sher Singh Rathore, Advocate Mr.Harish Goyal, Advocate for petitioners Mr.B.S.Chahal, DAG, Punjab Mr.VK Sharma, Advocate for respondents no.3 and 4 Permod Kohli, J. (Oral) This order will dispose of CWP Nos.16242 of 2008 and 16391 of 2008 as common questions of law and facts are involved therein. For the CWP NO.16242 OF 2008 2 sake of brevity, facts are taken from CWP No.16242 of 2008. The petitioners are working as Constable in District Ludhiana. For deputing the Constables in Lower School Course to enlist them for further promotion, a test is conducted known as B-1 test, 2008. The said test was held on 30.3.2008 for sending the Constables for the Lower School Course. As many as 220 Constables participated. However, only 25 of them, including the petitioners were declared successful. Petitioners stand at Sr.Nos.13, 17, 18 and 19, respectively amongst 25 successful candidates. Vide order dated 16.4.2008 (Annexure P-2), as many as 18 candidates were brought on Promotion List B-1 for deputation to the said Course whereas four vacancies at Roster Point Nos.86, 91, 96 and 01 at Sr.Nos.3, 8, 13 and 18 respectively have been kept vacant. No candidates have been deputed against these vacancies on the ground that reserved category candidates are not available. One of the petitioners belongs to Backward Class Category and others belong to General Category. The petitioners have been kept in the waiting list as is evident from Annexure P-2. As a consequence, four candidates against 22 allocated vacancies for the said Course have not been deputed. The petitioners are four in number. Admittedly, they have successfully qualified B-1 test which is essential for deputation to Lower School Course. The respondents have denied the deputation of the petitioners on the solitary ground that the four vacant vacancies are meant for reserved category candidates and since reserved category candidates are not available, the petitioners cannot be deputed for the course and for the aforesaid purpose. Reliance is placed upon Annexure R-3, a circular dated 25.6.2004 issued by the Addl.Secy. Welfare Department. Through this letter, all Heads of Departments etc. have been communicated that roster CWP NO.16242 OF 2008 3 register will be prepared w.e.f. 1.11.1960 for Class III and IV posts and for Class I and II, promotion roster register will be prepared w.e.f. 4.5.1974. This Circular further clarifies that where Scheduled Castes/Backward Class candidates are recorded in general list directly on the basis of seniority- cum-fitness, they are to be considered in S.C/B.C. quota. On the basis of the aforesaid circular, it is contended on behalf of the respondents that the Scheduled Caste candidates who qualified the B-I test came on merit and were adjusted against the General Category Vacancies and due to non- availability of reserved category candidates, the vacancies have been kept vacant. From the perusal of Annexure P-2, it appears that vacancy at Sr.No.3 representing Roster Point No.86 has been kept vacant, though scheduled caste candidates have been selected at Sr.No.6 representing General Category vacancy at Roster Point No.89. Similarly, vacancy at Sr.No.8 representing Roster Point No.91 for Reserved Category has been kept vacant whereas Scheduled Caste Candidates have been selected at Sr.Nos.10 and 12 against Open Category vacancy representing Roster Point No.93, 95 respectively. Similarly, at Sr.No.13 representing Roster Point No.96 for reserved category has been kept open whereas Scheduled Caste Candidates have been selected at Sr.No.16 representing open category vacancy at Roster Point No.99. Again at Sr.No.18, reserved category vacancy representing Roster Point No.1 has been kept vacant, even though two Scheduled Caste Candidates at Sr.Nos.20 and 21 against Open Category vacancies at Roster Points No.3 and 4 have been selected. In what manner, Annexure P-2 has been prepared is not understandable. From the perusal of Annexure P-3, it is apparent that this Circular deals with the recruitment i.e. for appointment and promotion etc. Deputation to Lower School Course is CWP NO.16242 OF 2008 4 not a promotion by itself, but only a step preceding the promotion, the deputation or the merit in B-1 test does not in any manner decide the promotion or inter-se seniority. It only makes a person eligible for consideration for promotion, though the result of the Lower School Course determines the inter-se merit for promotion etc. Thus Annexure R-3 cannot be invoked for the purpose of fixing the Roster points for deputation to Lower School Course. It does not make any sense that vacancies or undergoing courses are kept vacant merely on the ground that reserved category candidates are not available. The principle of carry-forward has its application to the vacancies as if the vacancies allowed to be filled up, deprives the reserved category candidates permanently till the vacancy is occupied by the General Category candidates. However, the vacancies for the Course goes waste if it is not filled up and a person is not deputed. The course is for a period of six months only. By no stretch of imagination, non-deputation of a general category candidate against so-called reserved vacancy for the said course of a tenure of six months can be justified. Otherwise also, from Annexure P-2, it appears that respondents have prepared the said list for deputation totally in contravention of the settled principles. Vacancy at Sr.No.3 has been kept vacant for reserved category whereas immediately at Sr.No.6, a Scheduled Caste candidate has been adjusted in General Category Candidate. As a matter of fact, he requires to be adjusted at Roster Point No.86 at Sr.No.3 and the next general category candidate was to be upgraded against the open category. Similarly, against vacant vacancy at Sr.No.8 representing Roster Point No.91 two candidates were adjusted immediately thereafter at Sr.Nos.10 and 12. One of them was required to be adjusted against reserved vacancy at Sr.No.8 and a general CWP NO.16242 OF 2008 5 category candidate was to be adjusted on the basis of the merit against vacancy at Sr.Nos.10 and 12, as the case may be, on the basis of merit. Similarly, vacancy at Sr.No.13 representing Roster Point No.96 was to be filled up by adjustment of scheduled caste candidates selected at Sr.No.16 against open category representing Roster Point No.99 and the consequential vacancy was to be given to the Open Category. On the same analogy, reserved vacancy at Sr.No.18 representing Roster Point No.1 was to be given to the Scheduled Caste candidates selected at Sr.No.20 who was adjusted against the Open Category vacancy and consequently, another candidate from waiting list is to be upgraded. In this manner, all the petitioners were to be adjusted strictly in accordance with law. When a number of Scheduled Caste candidates have been adjusted against Open Category and lower in merit than the vacant seats, in fact they have eaten the vacancy of general category. They were required to be upgraded and adjusted against the reserved vacancies and consequential vacancy to be given to the candidate next in merit in general category. In this manner, all the petitioners are entitled to be brought on the list of deputees for the Lower School Course. From out of 18 candidates at Sr.Nos.1, 2, 4 to 7 and 9 and 19 to 22 were deputed for the course commencing from 1.10.2008. As a matter of fact, the petitioners were also required to be recruited at least in second batch on the basis of their merit and selection in B-1 test. They have been illegally deprived of their right of deputation, despite their selection. In view of the above, both the writ petitions are allowed. It is directed that the petitioners shall be deputed for Lower School Course for the session commencing from April, 2009. They shall be deemed to have been deputed in October, 2008 and after completion of their course, their inter-se merit CWP NO.16242 OF 2008 6 shall be determined with the deputees for the Course that commenced in October, 2008 from District Ludhiana and based upon the merit, they will be entitled to be placed in the promotion list. Let a copy of this order be placed on record on each concerned file. (PERMOD KOHLI) JUDGE 13.1.2009 MFK NOTE: Whether to be referred to Reporter: YES/NO